New South Wales Supreme Court CITATION : Lym International Pty Ltd v Chen; Marcolongo v Lym International Pty Ltd [2008] NSWSC 1119 HEARING DATE(S) : 22 October 2008 JUDGMENT DATE : 22 October 2008 JURISDICTION : Equity JUDGMENT OF : Hamilton J DECISION : Amendment of statement of claim allowed in part, refused in part. CATCHWORDS : PROCEDURE [101] - Supreme Court procedure - Practice under Supreme Court Rules - Amendment - Late application - Whether prejudice may be cured. CATEGORY : Procedural and other rulings 5533/06 Lym International Pty Limited (P1) Limin Yang (P2) Yang Liu (P3) PARTIES : Yu Po Chen (D1) Westpac Banking Corporation (D2) 5049/07 Leonilda Marcolongo (P) Lym International Pty Limited (D1) Yu Po Chen (D2) FILE NUMBER(S) : SC 5533/06; 5049/07 T S Hale SC & S A Wells (Lym International, Yang & Liu) COUNSEL : D R Pritchard SC & J S Emmett (Chen) T A Alexis SC & D H Mitchell (Marcolongo) Submitting appearance (WBC) TressCox Lawyers (Lym International, Yang & Liu) SOLICITORS : Middletons (Chen) Dunstan Legal (Marcolongo) Henry Davis York (WBC) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION HAMILTON J WEDNESDAY, 22 OCTOBER 2008 5533/06 LYM INTERNATIONAL PTY LIMITED & ORS v YU PO CHEN & ANOR 5049/07 LEONILDA MARCOLONGO v LYM INTERNATIONAL PTY LIMITED & ANOR JUDGMENT 1 HIS HONOUR: An application is before me for the filing of an amended statement of claim. Useful written submissions have been given to me overnight on behalf of the plaintiffs in 5533/06 as to the ambit and effect of the amendments. Mr Pritchard, of Senior Counsel for the defendant, Yu Po Chen, has carefully considered overnight which portions of the amendments he should not object to and which he should object to. He has limited his objection to four sub pars only. Those sub pars are 22(d2), (d4), (d5) and (d6). The first and last are objected to on the ground that they are virtually meaningless or lacking in content of substance. I agree with that submission and am not prepared to allow paragraphs in that form. Sub pars (d4) and (d5) he objects to on the basis that, although the subject matters are dealt with on another basis in other parts of the pleading, the defendant could not in the context of the trial as it stands at present readily meet allegations to that effect pleaded as breaches of fiduciary duty. 2 I accept Mr Pritchard's word as a barrister in good standing and Senior Counsel that he would have difficulty at this stage of the case in meeting allegations framed in that fashion and that, had he been aware previously of allegations of that nature, he would have given consideration to casting the defendant's case differently, potentially by making claims for rectification of the contract and/or cross claiming against Middletons, who acted as Mr Chen's solicitors. I accept Mr Pritchard's word concerning this, both because of his standing and because the statement seems to me to be inherently probable. 3 In those circumstances, I shall not allow the inclusion of sub pars (d4) and (d5) in par 22, although those subject matters remain to be agitated under other provisions of the statement of claim, where they are already embodied. 4 I should say that Mr Pritchard has refrained from objecting to other parts of the proposed amended statement of claim, particularly an allegation of a fraudulent representation made by Amanda Chen, on the basis that he will be allowed further short cross examination by telephone link of Mr MacAvoy, the witness who has already come from and gone back to New Zealand. Mr Hale, of Senior Counsel for the plaintiffs, whose witness Mr MacAvoy is, sees no difficulty in this. Mr Pritchard will also bring forward some further evidence of Amanda Chen that goes to this issue. I shall allow that amendment on the basis that Mr Pritchard will be afforded those opportunities. 5 The result is that I shall allow the amendments sought, save that I shall not allow sub pars (d4) and (d5) to be included in par 22 of the amended statement of claim. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.