Yan v The Won Capital Pty Ltd [2023] NSWSC 1506

Yan v The Won Capital Pty Ltd [2023] NSWSC 1506

Leave to amend was granted for claims against first and second defendants due to reasonable explanation for recent delay and the significant importance of the claim for restitution, subject to the plaintiff paying the costs occasioned by the amendment; leave was refused as against GR Capital Group Pty Ltd due to absence of leave under s 444E(3) of the Corporations Act 2001 (Cth).

Parties
Plaintiff: Jianhua Yan; First Defendant: The Won Capital Pty Ltd; Second Defendant: Wensheng Liu; Third Defendant: GR Capital Group Pty Ltd; Fourth Defendant: The One International Corporation Pty Ltd; Fifth Defendant: Xinfeng Australia International Pty Ltd; Sixth Defendant: Lan Liu
Jurisdiction
Australia
Judgment Date
05 December 2023
Procedural Posture
Notice of Motion for Leave to Amend Pleading / Pre Trial; Ruling on Plaintiff’s Notice of Motion
Outcome
Leave granted to file and serve further amended statement of claim as against first and second defendants; leave refused as against third defendant absent s 444E(3) leave; plaintiff to pay costs of and occasioned by amendment and defendants' costs of Notice of Motion; Notice of Motion otherwise dismissed.
Legal Topics
Amendment of Pleadings, Delay, Interests of Justice, Leave Under Corporations Act 2001 (cth), Restitution, Moneys Had and Received, Illegality Defence
Civil Procedure Equity Amendment of Pleadings Delay Interests of Justice Leave Under Corporations Act 2001 (cth) Restitution Moneys Had and Received +1 more

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Parties

Jianhua Yan

Plaintiff

The Won Capital Pty Ltd

First Defendant

Wensheng Liu

Second Defendant

GR Capital Group Pty Ltd

Third Defendant

The One International Corporation Pty Ltd

Fourth Defendant

Xinfeng Australia International Pty Ltd

Fifth Defendant

Lan Liu

Sixth Defendant

Procedural Posture

Notice of Motion for Leave to Amend Pleading / Pre Trial; Ruling on Plaintiff’s Notice of Motion

Legal Issues

  1. 1 Whether the plaintiff should be granted leave to file and serve a further amended statement of claim
  2. 2 Whether leave under s 444E(3) of the Corporations Act 2001 (Cth) is required and appropriate for claims against GR Capital Group Pty Ltd
  3. 3 Whether delay and prejudice weigh against amendment

Ratio Decidendi

Leave to amend was granted for claims against first and second defendants due to reasonable explanation for recent delay and the significant importance of the claim for restitution, subject to the plaintiff paying the costs occasioned by the amendment; leave was refused as against GR Capital Group Pty Ltd due to absence of leave under s 444E(3) of the Corporations Act 2001 (Cth).

Court Disposition

Leave granted to file and serve further amended statement of claim as against first and second defendants; leave refused as against third defendant absent s 444E(3) leave; plaintiff to pay costs of and occasioned by amendment and defendants' costs of Notice of Motion; Notice of Motion otherwise dismissed.

Orders

  • Grant plaintiff leave to file and serve a further amended statement of claim as against first and second defendants in the form annexed to the orders.
  • Plaintiff to pay the costs of and occasioned by the amendment, including costs of first defendant obtaining a supplementary expert report on Chinese law illegality for the new restitutionary claim.