To v Tang

1. [1]

   Han Haur Tang (the defendant) seeks leave to file a cross claim which is six months out of time against his former lawyers, JA Buda & Associates. The plaintiffs’ oppose the motion.

2. [2]

   The parties have agreed that the motion should be determined by the court on the papers and have each provided written submissions in support of their position.

3. [3]

   For the reasons set out below, leave should be granted subject to conditions.

Overview of the facts

1. [4]

   The relevant background facts are not in dispute. The following summary is taken largely from the plaintiffs’ submissions.

2. [5]

   The plaintiffs as purchasers seek specific performance of a contract for the sale of land dated 27 January 2024 (Contract), in respect of two titles located at Canley Vale (Property).

3. [6]

   The plaintiffs claim, and the defendant denies, that the Contract contained 2 special conditions in addition to the contract terms signed by Kieu To (the first plaintiff) and the defendant on the date of the auction (Special Conditions). Those terms are:

4. [7]

   The plaintiffs allege that the Contract is susceptible to rectification so as to include the Special Conditions. They contend that the Special Conditions were mutually agreed to be included in the Contract, in the event that the first plaintiff was the successful bidder at auction by way of an exchange of letters between their respective solicitors.

5. [8]

   The plaintiffs were the successful bidders at auction and entered into possession of the Property on or about 29 January 2024 in purported reliance on the Special Condition said to permit occupation prior to settlement. However, they were evicted from the Property by the defendant on or about 13 February 2024.

6. [9]

   The proceedings for specific performance were commenced on 1 November 2024. The parties mediated on 16 May 2025 without success.

7. [10]

   The defendant originally alleged that the Contract signed on 27 January 2024 contained the only terms of the bargain between the parties. By way of reply, the plaintiffs alleged the Special Conditions. The statement of claim was then amended to expressly plead the Special Conditions as terms of the Contract.

8. [11]

   The defence to the amended statement of claim, whilst admitting the correspondence relied upon by the plaintiffs as giving rise to the Special Conditions, denies that the Special Conditions were part of the Contract.

9. [12]

   The proceedings have now reached the stage where all of the evidence has apparently being filed. There have been a number of extensions of time, to both sides but principally to the plaintiffs, to enable the evidence to be completed.

The proposed cross claim

1. [13]

   In support of the motion to file a cross claim out of time, the defendant has given unchallenged evidence that it was not until the completion of his affidavit in chief on or about 30 January 2026 that he was advised that he should file a cross claim against the solicitors who acted for him on the conveyancing transaction. The defendant gives evidence that at no time did he give instructions to his solicitors to agree to the inclusion of the Special Conditions in the Contract.

2. [14]

   The proposed cross claim identifies the proposed cross defendant “JA Buda & Associates” which I presume is the business or trading name of the firm of solicitors that acted for the defendant on the conveyance to the plaintiffs.

3. [15]

   The proposed cross claim pleads a claim in negligence against the defendant’s former solicitors. An essential aspect of the proposed cross claim is that the former solicitors agreed to the Special Conditions being included, but failed to inform the defendant that they had done so, or to advise the defendant that they were terms of the Contract.

Determination

1. [16]

   The defendant contends that the contest between the defendant and his former lawyers, as set out in the proposed cross claim, involves the same conveyancing transaction as that between the plaintiffs and the defendants, similar or virtually the same correspondence, more generally the same issues and evidence. Consequently, it is appropriate that for finality of disputes and dispute resolution, that these cases be dealt with together in the usual way, rather than a possible scenario where there are two separate cases involving the same evidence and similar findings of fact made by two separate judges that could give rise to perverse results. It is also contended that leave to file the cross claim can be granted with little to no prejudice to the plaintiffs in that there would not be a significant prolongation of the proceedings.

2. [17]

   Putting to one side the identity of the proposed cross defendant, the plaintiffs contend that determination of the cross claim is not necessary for the termination of the proceedings as between the plaintiffs and the defendant. The plaintiffs further submit that permitting the filing of the proposed cross claim will further delay the hearing of the proceedings, and cause the plaintiffs to incur additional expense in further preparation in relation to the proposed cross-claim, and expand the hearing days required causing additional cost and delay.

3. [18]

   In my view, it is in the interests of justice that the defendant be granted leave to file the cross claim at this stage. Whilst I accept that the cross claim could, and perhaps should have been filed at an earlier point in time, it is not in dispute that the defendant was not advised until quite recently that he should file across claim against his former lawyers. This is not a case in which the defendant has deliberately delayed in bringing the cross-claim.

4. [19]

   Whilst it is possible that allowing the cross claim to be filed at this stage will lead to a delay in the finalisation of the case as between the plaintiffs and the defendant, it is not obvious to me, at this stage, that the delay will be significant. Nor is it apparent that, given the degree of overlap between the issues, that the addition of the cross claim will materially increase the likely hearing time.

5. [20]

   Further, although the primary relief sought is specific performance, the proceedings were not commenced until some nine months after the plaintiffs were evicted from the Property. Since they were commenced, the proceedings have continued at somewhat of a leisurely pace, with both parties, principally the plaintiffs, being granted extensions of time for the filing of their evidence.

6. [21]

   Against this, it seems clear to me that there is a considerable overlap in the claims advanced as between the plaintiffs and the defendant, and the defendant and his former lawyers. The conduct of the defendant’s former lawyers is at the heart of whether the Special Conditions were terms of the Contract, and also underpins the negligence claims in the proposed cross claim. In these circumstances, it is desirable that the issues on both claims be dealt with in the same hearing.

7. [22]

   I turn now to consider the complaint raised by the plaintiffs as to the identity of the cross defendant. As set out above, it appears that the proposed cross defendant named in the proposed cross claim is the business name of the lawyers retained by the defendant to act for him on the conveyancing transaction.

8. [23]

   The plaintiffs contend that the proposed cross claim is not competent in its present form, as it does not identify a person to whom instructions were given or who breached any duty owed to the defendant.

9. [24]

   I do not accept that submission. Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 7.20(1) provides that proceedings against a person in respect of anything done or omitted to be done by the person in the course of, or in relation to, a business carried on under an unregistered business name may be commenced against that person, as defendant, under that name. Further, UCPR 7.21 sets out the steps that a defendant sued under a business name must take upon entering an appearance.

10. [25]

    I do, however, accept that plaintiffs submission that leave should be granted subject to the usual condition that the defendant pay the plaintiffs’ costs thrown away (if any) by the filing of the cross claim, which would include any consequential amendments to the statement of claim by reason of the cross claim. It is otherwise proposed that the costs of the motion be costs in the cause, which seems appropriate.

Conclusion and orders

1. [26]

   The court orders that:

   1. (1)

      The defendant has leave to file a cross claim in the form attached to the notice of motion dated 18 February 2026.

   2. (2)

      The defendant pay the plaintiffs’ costs thrown away (if any) by reason of the filing of the cross claim.

   3. (3)

      The costs of the defendant’s motion filed 18 February 2026 be costs in the cause.