Australia, Aug. 4 -- New South Wales Land and Environment Court issued text of the following judgement on July 3:

1. These proceedings concern agreements about the acquisition of land in Yarraville for some $165 million, at a time when it was intended that a joint venture property development would be pursued. The land was sold for some $255 million in 2021. Mr Jiang later brought these proceedings in order to recover over $5 million he claims he is still owed by the defendants under a 2016 agreement.

2. Mr Jiang's claim was defended and a cross claim was also pursued. But it was dismissed and corresponding provisions of the amended defence were struck out in May 2025, with the result that it was only Mr Jiang's claim which was left to be heard at the 30 June 2025 hearing: Jiang v Han (No 3) [2025] NSWSC 452.

3. Before Chen J on 16 June the defence position was that a notice of intention to appeal the May decision had been filed and they did not want the impending hearing to proceed. But they had not taken any steps to pursue that aim. Then explored was the necessity for them to file an appeal against the May judgment and to pursue an urgent application before the Court of Appeal, for orders directed to the impending hearing. That did not occur.

4. Instead, on 25 June the defendants filed a motion supported by an affidavit sworn by their solicitor Mr Wang, by which orders adjourning the hearing, giving them leave to rely on the cross claim, provisions of the defence which had been struck out and to serve evidence were all sought. They sought an urgent listing of the motion, which was served only shortly before the matter was listed at 4pm. The orders sought were then opposed.

5. Mr Wang had deposed that some days before, $185,000 of further security which had been ordered to be paid in February 2025, had been paid into his trust account and the defendants had also provided a response to an outstanding notice to produce. But the defendants had still not served all of their evidence, although an affidavit Mr Han had sworn had been served.

6. The motion was listed for hearing at the commencement of the 30 June hearing. Mr Jiang then relied on the affidavit sworn by his solicitor, Ms Zhang. The Court's power to make orders reinstating the cross claim and the struck out provisions of the defence were put in issue, as was the exercise of the Court's discretions in the way the defendants sought.

7. I then refused the orders the defendants sought. The reasons for that refusal follow.

8. The result, after an adjournment to obtain instructions, was that their counsel withdrew. The defendants did not remain to resist the orders which Mr Jiang then pursued.

9. They had not filed any submissions about the proper construction of the agreement on which Mr Jiang's claim depended, having earlier also not complied with the Court's orders as to the service of any objections to Mr Jiang's evidence, or the identification of what was in issue. The result was that Mr Jiang's evidence was unchallenged.

10. The proper inference in those circumstances is that evidence which Mr Han might have been able to give or the defendants were able to lead would not have advanced the defence case: Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8. The construction of the agreement Mr Jiang relied on to advance his claim does not turn on such evidence, but such evidence could conceivably have shed light on the commercial circumstances in which the agreement was entered.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197c963844b2bab8805f1ada)

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