Federal Court of Australia

Jahani v Qui, in the matter of Ralan Property Services Pty Ltd (receivers and managers appointed) (in liq) (leave to amend pleadings) [2026] FCA 398

ORDERS

THE COURT ORDERS THAT:

1.    The following parties be joined to the proceedings:

(a)    Ralan Arncliffe Pty Ltd (receivers and managers appointed) (in liquidation) ACN 159 766 757, as the seventh plaintiff;

(b)    Ralan Capital Investment Pty Ltd (in liquidation) ACN 603 501 444, as the eighth plaintiff;

(c)    Ralan Paradise No. 2 Pty Ltd (in liquidation) ACN 602 658 793, as the ninth plaintiff;

(d)    Ralan Paradise No. 3 Pty Ltd (in liquidation) ACN 602 659 138, as the tenth plaintiff;

(e)    Ralan Paradise No. 4 Pty Ltd (in liquidation) ACN 602 659 441, as the eleventh plaintiff; and

(f)    Ralan Budds Beach No. 1 Pty Ltd (receivers and managers appointed) (in liquidation) ACN 604 085 663, as the twelfth plaintiff.

2.    Leave be granted to the plaintiffs to file a Second Further Amended Originating Process (2FAOP) and Further Amended Statement of Claim (FASOC) in the form of that at pages 1 to 2 and pages 26 to 160, respectively, in Exhibit NM-1 to the affidavit of Noel Richard McCoy sworn 23 December 2025.

3.    The plaintiffs are to file and serve the 2FAOP and the FASOC, by 4.00pm on 10 April 2026.

4.    The date from which the joinder in Order 1 and the amended pleadings in Order 2 take effect is reserved for determination at the final hearing.

5.    The defendants are to file and serve their Defence to the FASOC (including to rely on the amendments in respect of which leave is granted in Order 8 below), by 4.00pm on 1 May 2026.

6.    The plaintiffs are to file and serve any Reply to the Defence to the FASOC, by 4.00pm on 15 May 2026.

7.    The plaintiffs pay the defendants’ costs thrown away, if any, by reason of the amendments effected by the filing of the 2FAOP and the FASOC.

8.    Leave be granted to the defendants to rely on the amendments in the proposed Further Amended Defence (FAD) which is Annexure NAJD-6 to the affidavit of Nicholas Anthony James Dale sworn 17 December 2025 when filing their Defence to the FASOC in accordance with Order 5 above.

9.    The defendants pay the plaintiffs’ costs thrown away, if any, by reason of the amendments set out in the FAD in respect of which leave has been granted.

10.    The defendants have leave to file and serve any further lay evidence in response to matters arising from the plaintiffs’ 2FAOP and FASOC by 4.00pm on 10 June 2026.

11.    The plaintiffs file and serve any evidence in reply by 4.00pm on 1 July 2026.

12.    The costs of the plaintiffs’ interlocutory application filed 23 December 2025 and the defendants’ interlocutory application filed 17 December 2025 to be reserved for determination at the final hearing.

13.    The matter be referred to a Registrar of the Court for case management until further order.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

CHEESEMAN J:

OVERVIEW

1    These reasons concern two interlocutory applications. The plaintiffs seek leave to file a second further amended originating process and a further amended statement of claim. The defendants seek leave to file a further amended defence.

2    The proceeding was commenced on 29 July 2022, just before the expiry of the limitation period under s 588FF(3) of the Corporations Act 2001 (Cth) concerning voidable transaction claims.

3    Said Jahani together with Philip Campbell-Wilson and Graham Killer, the first and second plaintiffs (together, the Liquidators), are the joint and several liquidators of 58 companies in the Ralan Group companies.

4    The Ralan Group includes:

(1)    Ralan Property Services Pty Limited (receivers and managers appointed) (in liquidation) (RPS), the third plaintiff;

(2)    Ralan Property Services Qld Pty Ltd (receivers and managers appointed) (in liquidation) (RPS QLD), the fourth plaintiff;

(3)    Ralan Beaconsfield Pty Ltd (receivers and managers appointed) (in liquidation), the fifth plaintiff; and

(4)    Ralan Paradise No. 1 Pty Ltd (receivers and managers appointed) (in liquidation) (RP1), the sixth plaintiff.

5    The Liquidators and the corporate plaintiffs claim against Zhang Fu Qiu (also known as Geoff Qiu) and Xiao Hui Liu (also known as Lily Qiu and Lily Liu) seeking, among other things, orders under s 588FF of the Corporations Act for declaratory and consequential relief in respect of voidable transactions under Pt 5.7B for compensation pursuant to ss 598 and 1317H of the Corporations Act with respect to involvement in breaches of duty owed as a director, and damages or equitable compensation.

6    The Liquidators were first appointed as administrators of the companies in the Ralan Group on 30 July 2019. They subsequently became liquidators following the second meeting of creditors which resolved to wind up the companies in the Ralan Group (and in the case of RP1, after the termination of a deed of company arrangement on 1 March 2020).

7    The plaintiffs first served the defendants with the proceedings on 1 March 2023 after being granted leave to defer service of the proceedings pending the Liquidators obtaining litigation funding.

8    The plaintiffs obtained litigation funding for the conduct of the proceedings which the Court approved under s 477(2B) of the Corporations Act on 26 June 2023: Jahani, in the matter of Ralan Property Services (in liq) [2023] FCA 738 (Stewart J).

9    The pleadings have been amended on earlier occasions. The defendants filed a defence on 26 February 2024 and an amended defence on 12 March 2024. The plaintiffs filed their amended statement of claim on 25 January 2024. The proceeding is listed for hearing in late September and early October 2026.

10    The parties have exchanged lay and expert evidence. An expert conclave was held in February and March 2026 for the purposes of preparing a joint report on solvency. The proposed amendments will not impact the joint report produced by the experts.

11    The parties were directed to bring forward any further applications for leave to amend if not agreed. The present applications are the result.

12    Most of the plaintiffs’ proposed amendments are either not opposed or involve only limited controversy. The defendants’ principal opposition concerns the proposed addition of prayer 20B in the second further amended originating process and the related amendments in proposed paragraphs 127 to 129H of the further amended statement of claim (together, the 20B amendments). The 20B amendments involve the joinder of six additional corporate plaintiffs and the introduction of a substantial further compensation claim against the first defendant in relation to the alleged operation of the Deposit Release Scheme (as detailed in paragraph [28] below). While there are foundational allegations of fact that are included in the earlier section of the pleading, those amendments rise and fall with the 20B amendments.

13    The defendants submit that the 20B amendments introduce distinct claims on behalf of a materially enlarged group of companies, that the claims are time-barred and that, by reason of r 9.05 of the Federal Court Rules 2011 (Cth), any newly joined plaintiffs commence their proceeding only upon joinder. The plaintiffs submit that the amendments do not introduce a different controversy but rather identify the proper plaintiff companies said to have suffered loss by reason of substantially the same alleged Deposit Release Scheme and bring the pleading into line with the evidence already served.

14    On the defendants’ application, the plaintiffs’ opposition focuses on the late introduction of the limitation defence in proposed paragraph 126 of the further amended defence. At the hearing the plaintiffs made clear that, if leave were granted for them to amend, they did not oppose leave being granted to the defendants to amend the defence. The plaintiffs accepted that both applications should be dealt with on the footing that the interests of justice favoured both sets of amendments being permitted.

15    In those circumstances, the central issues are whether the 20B amendments should be permitted, whether the six additional plaintiffs should be joined, whether the defendants should have leave to plead the limitation defence, and whether any question as to the operative date of the joinder and amended pleadings should be determined now or reserved for trial.

16    For the reasons that follow, leave should be granted to both parties. The question whether the joinder and amended pleadings take effect from the date of commencement of the proceeding or only from the date of leave and joinder should be reserved for determination at the final hearing.

17    That course avoids the risk of determining, at an interlocutory stage, a question that may bear directly upon the availability or scope of any limitation defence and that may depend upon the proper characterisation of the amendments, the operation of the Rules and, potentially, the factual footing ultimately established at trial. It permits the amendments to be made while preserving to each party the right to contend at the final hearing for the operative date said to follow from the proper characterisation of the amendments and the operation of the Rules.

EVIDENCE

18    The plaintiffs rely on: (1) the affidavit of Noel Richard McCoy, Partner at Norton Rose Fulbright, sworn 23 December 2025, and the exhibit to that affidavit; (2) the affidavit of Lisa Gibb, Partner at Grant Thornton Australia Limited, sworn 23 December 2025; and (3) paragraphs 1, 14-19, 30, 86-87, 93, 97, 106-107 and 113-115 of the affidavit of Mr Qiu, the first defendant, affirmed 12 May 2025.

19    The defendants rely on: (1) the affidavit of Nicholas Anthony James Dale, Partner at Swaab, sworn 17 December 2025, and the exhibit to that affidavit; and (2) pages 9964-9968 of Exhibit SJ-2 to the affidavit of Said Jahani, the first and second plaintiff (together with Mr Campbell-Wilson and Mr Killer), affirmed 24 July 2024.

20    It is not necessary for present purposes to summarise that evidence beyond noting that the plaintiffs submit that the proposed pleading amendments are supported by material already filed and served and that the defendants rely on Mr Dale’s affidavit to explain the proposed amendments to the defence.

21    The one exception is in relation to the evidence of Mr Qiu that was tendered on this application, to which I refer below.

RELEVANT BACKGROUND

22    For these interlocutory applications, the relevant background allegations are as follows.

23    In or around April 1999, RPS commenced operations as a project marketing company. RPS marketed for sale “off-the-plan” apartments for unrelated developers and offered property management services.

24    From about 2008, RPS and other companies in the Ralan Group established their own property development business, specialising in real estate development in New South Wales and, from about 2014, in Queensland. Between 2008 and 2019, companies in the Ralan Group undertook more than 30 property developments.

25    A different company in the Ralan Group carried out each separate development. These companies were in the main incorporated as special purpose vehicles (SPV or SPVs). Apartments within the developments were generally sold by the SPVs “off-the-plan” prior to construction. The pre-construction sales were a pre-requisite for drawing down funds that financiers made available (principally entities related to the Wingate Group Holdings Pty Ltd group of companies). By the terms of the finance facilities, the deposits paid by off-the-plan purchasers were required to be held in the real estate agent’s trust account consistently with the terms of the relevant contracts of sale, pending completion of the sale.

26    RPS was the nominated vendor’s agent on contracts for the sale of all apartments in the Ralan Group developments in New South Wales. As such, it marketed the Ralan Group’s developments in New South Wales and accepted deposits from purchasers upon the exchange of contracts for the sale of apartments. In 2014, RPS QLD was incorporated and performed the equivalent role in respect of the Ralan Group’s developments in Queensland.

27    William Peter O’Dwyer was a director of each of the companies in the Ralan Group (and the sole director of all but two of them, namely RPS and RPS QLD). The reason Mr O’Dwyer was not a sole director of RPS and RPS QLD is explained by Queensland law that required those two entities to have as a director a person who held a relevant real estate licence. Mr O’Dwyer and entities related to him owned all of the shares in those companies and, prior to their external administration, had control over all the companies in the Ralan Group.

28    From the time when the Ralan Group commenced its own property development business, the particular SPV offered purchasers the opportunity to obtain a return on any funds that they were willing to lend to the SPV by agreeing to release, as a loan, the off-the-plan deposit paid by the purchaser. Those opportunities were not disclosed to the relevant financiers. Interest on the released funds accrued at agreed rates of up to 12-15% per annum with the loan repaid at settlement of the purchase by reducing the balance of the amount to be paid by the purchaser to complete the purchase. The funds were mostly transferred to RPS (and in Queensland, they went via an entity undisclosed to the financiers, Ralan Capital Investment Pty Limited) and were then advanced by the particular SPVs to other companies in the Ralan Group that required funds. This practice was referred to as the Deposit Release Scheme.

29    The accruing interest, as well as the obligation to repay the loans with interest, became a substantial liability of RPS and the Ralan Group. The cash flow generated by the Deposit Release Scheme became important to the survival of the Ralan Group. The scheme is alleged to have operated by using the released deposits from later developments to meet liabilities arising from earlier ones.

30    The plaintiffs’ case against the defendants proceeds on the footing that the defendants were involved in, or received the proceeds of, conduct said to constitute breaches of duty by Mr O’Dwyer in connection with the Deposit Release Scheme. It is also pleaded that, on 22 August 2023, Mr O’Dwyer pleaded guilty to six offences contrary to s 192E of the Crimes Act 1900 (NSW). He is not a party to this proceeding.

31    The plaintiffs allege that Mr Qiu received the proceeds of the released deposits and/or assisted the relevant Ralan Group entities to conduct the Deposit Release Scheme. The plaintiffs plead that Mr Qiu’s role as Head of Sales connected him directly to the Deposit Release Scheme because he was involved in generating the off-the-plan sales from which purchaser deposits were obtained, was consulted by Mr O’Dwyer about the creation and operation of the scheme, promoted the scheme to agents and purchasers, and was remunerated in part by reference to the value of released deposits. The plaintiffs plead that Mr Qiu had actual knowledge of the matters said to make Mr O’Dwyer’s conduct in connection with the Deposit Release Scheme a breach of duty and, in the alternative, that he is to be taken to have had the requisite knowledge by reason of wilful blindness, reckless failure to inquire, or knowledge of circumstances indicating those matters to an honest and reasonable person in his position.

32    The plaintiffs’ pleaded reliance on alleged breaches by Mr O’Dwyer of fiduciary duties owed as director of the relevant Ralan entities is capable, in principle, of supporting a Barnes v Addy (1874) LR 9 Ch App 244 claim, in the sense that a dishonest and fraudulent breach of such duty may found a claim for knowing assistance against a third party who assisted with the requisite knowledge, and a claim for knowing receipt where the third party is alleged to have received the relevant property affected by that breach in a manner sufficient to attract recipient liability.

33    The plaintiffs tendered part of Mr Qiu’s affidavit that has been filed and served in the substantive proceeding on this application. The effect of that evidence was that that Mr Qiu maintained that he did not know of the relevant intercompany, agency or financing arrangements within the Ralan Group, did not have access to documents or loan facilities concerning those matters, and did not have detailed knowledge of the operation of the Deposit Release Scheme or of the funds available to the Ralan Group from it. The plaintiffs relied on this evidence to support a submission that if the proposed 20B amendments were permitted it would be unlikely to result in Mr Qiu putting on materially different or more expansive evidence than that which he has already filed and served.

34    The plaintiffs allege that Ms Liu was the wife of Mr Qiu and, together with him, a trustee of the KMW Trust and the KMW Super Fund, but that she did not provide goods or services to any of the companies in the Ralan Group and was not employed by any of them. The case advanced against her is, in substance, that she was a recipient of payments made by RPS to Mr Qiu and/or Ms Liu in their capacities as trustees, and that she also received property or benefits said to have been transferred in breach of duties owed by Mr O’Dwyer as director of the relevant plaintiff companies. Relief is sought against her in relation to the alleged receipt of those payments and in relation to the Lindfield (6-10 Beaconsfield Parade and 10 Drovers Way) and Surfers Paradise (9 Norfolk Avenue) properties, including declaratory relief, transfer orders, equitable compensation and an account of profits. However, the new knowing assistance claim introduced by the 20B amendments is directed to Mr Qiu rather than to Ms Liu.

35    The total amount of unpaid released deposits was said to exceed $288 million at the time the Ralan Group entered administration.

36    The proceeding concerns, among other things, allegations about the receipt, release and onward application of off‑the‑plan deposits within the Ralan Group, the use of those funds within the group, payments made to the defendants or for their benefit, and alleged undervalue property dispositions.

37    By 29 October 2024, the plaintiffs had filed and served their lay and expert evidence, from seven lay witnesses and four experts in the fields of real estate valuation, real estate agency market practice, and solvency. By 27 August 2025, the defendants filed and served their lay and expert evidence, comprising two lay witnesses (namely, Mr Qiu and Ms Liu) and one expert witness in the field of solvency. By 19 February 2026, the plaintiffs completed and served their evidence in reply from four lay witnesses and an expert witness on solvency.

38    The amendments now sought are directed principally to three areas.

39    First, the plaintiffs seek to refine and enlarge aspects of the accessorial case, including by adding further corporate plaintiffs and a substantial new compensation claim against Mr Qiu in respect of the alleged conduct and operation of the Deposit Release Scheme.

40    Secondly, the plaintiffs seek to plead additional statutory and factual matters concerning Queensland deposit arrangements, the legal incidents of released deposits, and the defendants’ alleged knowledge.

41    Thirdly, the defendants seek to add a limitation plea to one part of the existing case and to make a small number of evidentiary amendments to accounting allegations concerning the undervalue property claims.

42    The amendments sought are not uniform in character.

THE AMENDMENTS IN CONTEXT

43    By the proposed second further amended originating process, the plaintiffs seek: first, to add six further corporate plaintiffs in the schedule, namely Ralan Arncliffe Pty Ltd (receivers and managers appointed) (in liquidation) ACN 159 766 757, Ralan Capital Investment Pty Ltd (in liquidation) ACN 603 501 444, Ralan Paradise No. 2 Pty Ltd (in liquidation) ACN 602 658 793, Ralan Paradise No. 3 Pty Ltd (in liquidation) ACN 602 659 138, Ralan Paradise No. 4 Pty Ltd (in liquidation) ACN 602 659 441 and Ralan Budds Beach No. 1 Pty Ltd (receivers and managers appointed) (in liquidation) ACN 604 085 663; secondly, to introduce a new prayer 20B by which Mr Qiu is alleged to be liable by way of compensation or equitable compensation to RPS, RPS QLD, RP1, Ralan Arncliffe, Ralan Capital Investment, Ralan Paradise No. 2, Ralan Paradise No. 3, Ralan Paradise No. 4, and Ralan Budds Beach in specified amounts in respect of his alleged knowing assistance in the conduct of the Deposit Release Scheme; and, thirdly, to make a number of consequential and quantification amendments to existing prayers, definitions, headings and the schedule of parties.

44    By the proposed further amended statement of claim, the plaintiffs seek to support those amendments by pleading the additional plaintiffs and related matters concerning liquidation and receivership; by adding further allegations concerning the Queensland statutory framework governing purchaser deposits and the operation of the Deposit Release Scheme in Queensland; by refining the allegations concerning Mr Qiu’s knowledge of the scheme, the relevant finance facilities and the matters said to make Mr O’Dwyer’s conduct a breach of duty; by refining the knowing receipt case; and, importantly, by introducing at proposed paragraphs 127-129H a revised knowing assistance case against Mr Qiu in respect of Ralan Arncliffe and the Queensland SPVs directed to supporting the new relief sought by prayer 20B.

45    The proposed further amended defence makes two kinds of change. The first is the amendment in paragraph 126, which pleads that part of the existing claim is statute-barred in respect of payments said to have been made by RPS more than six years before the commencement of the proceeding on 29 July 2022, with particulars referring to s 14 of the Limitation Act 1969 (NSW). The second consists of amendments to a small number of paragraphs concerned with accounting and factual allegations relating to the undervalue property claims. At the hearing, the plaintiffs made clear that, if leave were granted to them to amend, they did not oppose leave being granted to the defendants to rely on those amendments.

APPLICABLE PRINCIPLES

46    The Court’s power to permit amendment and joinder is addressed in the Rules, including rr 8.21 and 9.05. The discretion is to be exercised consistently with the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth).

47    A party has no entitlement to amend merely because the proposed amendment raises an arguable issue. Modern case management considerations, including delay, wasted costs, prejudice and the orderly conduct of the proceeding, are material to the exercise of the discretion. Where a proposed amendment is substantial, late, or productive of the enlargement of the controversy, the party seeking leave is ordinarily expected to explain why the matter was not raised earlier. The absence of a satisfactory explanation is not necessarily decisive, but it is not neutral.

48    The prejudice relevant to the exercise of discretion is forensic or procedural prejudice. The fact that an amendment may strengthen or weaken a claim or defence, or alter the financial significance of the litigation, is not of itself the kind of prejudice that warrants refusal. The relevant question is whether the opposing party is placed in a position of unfair forensic disadvantage that cannot be sufficiently addressed by costs, directions, or an opportunity to respond.

49    Where limitation issues are engaged, r 8.21 draws a distinction between amendments which arise out of the same or substantially the same facts as those already pleaded and amendments which do not. Where new parties are sought to be added, r 9.05 is also engaged. In such a case, questions may arise as to whether the proposed claim is truly a new claim by a new party, whether it arises out of substantially the same factual matrix as the existing case, and what consequences follow from the rule that the proceeding for a joined party starts when the joinder order is made.

50    Whether a limitation defence ultimately succeeds is not ordinarily to be determined finally on an interlocutory amendment application unless the case is sufficiently clear to warrant that course. That is especially so where the proposed amendment, or the proposed joinder, gives rise to questions concerning the operative date of the amendment, the effect of the Rules on relation back, or the possible application of limitation periods by statute or by analogy.

51    In McGraw-Hill Financial, Inc v Clurname Pty Ltd [2017] FCAFC 211; 123 ACSR 467 (Allsop CJ, Jagot and Yates JJ), the Full Court emphasised that limitation questions commonly involve complex questions of fact and law and should not ordinarily be determined at an interlocutory stage; where there is a reasonable argument that the amended claim may not be statute-barred, the preferable course may be to allow the amendment while preserving the parties’ rights by leaving to the final hearing the question of the date from which the amendment takes effect and any limitation consequences that follow.

THE PLAINTIFFS’ APPLICATION

52    It is convenient to begin by recognising the limited scope of the controversy. The defendants expressly do not oppose a substantial number of the plaintiffs’ proposed amendments in the second further originating process and the further amended statement of claim. Those unopposed amendments include most of the pleaded refinements concerning the Queensland statutory regime, additional allegations concerning Mr Qiu’s knowledge, the constructive trust allegations, many consequential changes to prayers and definitions, and a range of stylistic or corrective amendments. The real dispute concerns the 20B amendments, being the proposed addition of prayer 20B and the related amendments in proposed paragraphs 127-129H, together with the joinder of the further six corporate plaintiffs.

53    The defendants’ opposition to the plaintiffs’ application may be grouped under four themes. First, they submit that the 20B amendments are, in substance, not merely amendments to an existing claim, but the introduction of new claims by new parties. Secondly, they submit that those claims are time-barred. Thirdly, they submit that s 598 of the Corporations Act is not an appropriate vehicle for the proposed claim. Fourthly, they submit that the amendments are insufficiently explained and would cause prejudice, including by requiring further pleading, particulars and evidence and jeopardising the hearing date.

54    As to the first matter, the defendants submit that the real issue raised by the 20B amendments is one of joinder as much as amendment. They contend that the proposed claim involves multiple entities seeking to recover in respect of the same underlying released deposits where on the contractual documentation, liability to purchasers lay only with Ralan Arncliffe in New South Wales and Ralan Capital Investment in Queensland. On that footing, they submit that the inclusion of other entities involves impermissible duplication or triple counting, and that several of the proposed claimants have no relevant liability to purchasers and therefore no corresponding loss of the kind now asserted.

55    As to the limitation period, the defendants submit that the proposed claims by the new plaintiffs are out of time because the relevant transactions pre-date 30 July 2019 and, by reason of r 9.05(3) of the Rules, any newly joined plaintiff commences its proceeding only upon joinder. They contend that any claim under s 1317H of the Corporations Act is subject to the six-year period in s 1317K and that any claim for equitable compensation in Queensland is likewise met by an analogous six-year limitation period. At the hearing, however, the defendants accepted that a different position arises in New South Wales, with the consequence that the Ralan Arncliffe-related claim may attract a 12-year period.

56    The defendants also submit that s 598 of the Corporations Act is not an appropriate basis for the proposed claim. They argue that s 598 is directed to a summary liquidator’s misfeasance procedure suited to relatively simple recovery claims in the course of a winding up, and not to a large and complex claim of the present kind involving multiple entities, many transactions, and contested factual and legal issues.

57    Finally, the defendants submit that the 20B amendments are insufficiently explained, that the relevant matters had long been known to the Liquidators, and that permitting the amendments would prejudice the defendants by requiring further pleading, particulars and evidence and by putting the existing trial timetable at risk. They submit in particular that, if the amendments are allowed, there will need to be further work directed to identifying when deposits were released, in what amounts, and by reference to which entities, and that those issues will themselves generate additional factual controversy.

58    The defendants are correct to submit that the present controversy is, in substance, about both amendment and joinder. The 20B amendments are not merely stylistic. They materially enlarge the litigation. They add six new corporate plaintiffs, bring RPS QLD into the relief claim, and seek substantial amounts by way of compensation or equitable compensation said to reflect losses associated with released deposits in respect of Ralan Arncliffe and the Queensland SPVs. Those amendments should be recognised for what they are: a significant enlargement of the existing accessorial case.

59    However, I am satisfied that the 20B amendments do arise out of the same or at least substantially the same facts as those already pleaded notwithstanding that there is a confined variation that is born of the difference between the relevant state legislation in Queensland as compared to New South Wales. The difference in the immediate legislative setting results in some variation in the plaintiffs’ allegations as to how the Deposit Release Scheme was implemented in Queensland compared to New South Wales. The existing pleading already placed in issue the alleged Deposit Release Scheme, the role of the relevant SPVs in releasing purchaser deposits, the alleged breaches of duty by Mr O’Dwyer in causing those funds to be transferred and used within the Ralan Group, and Mr Qiu’s alleged knowledge of, and involvement in, that scheme. The 20B amendments do not introduce a different course of conduct or a different species of wrongdoing. Rather, they identify additional entities said to have suffered loss by reason of substantially the same alleged scheme, refine the accessorial case already advanced against Mr Qiu, and translate that refined case into a further prayer for relief.

60    It is true that the 20B amendments enlarge the case in a substantial way. But enlargement of that kind is not the relevant test. The question is whether the amended case is anchored in substantially the same factual matrix. In my view it is. The alleged scheme, the alleged conduct of Mr O’Dwyer, the alleged role and knowledge of Mr Qiu, and the alleged movement and application of released-deposit monies within the Ralan Group are all in substantially the same terms and remain at the centre of the case. The amendments operate principally to identify further claimant entities and to articulate more fully the loss said to have been suffered by them.

61    The defendants’ criticism that the plaintiffs have not adequately explained why the six new corporate plaintiffs were not joined earlier is not without force. The explanation given is incomplete, but it is candid as far as it goes. The plaintiffs’ evidence is that the 20B amendments were prompted by a reassessment of the case after the defendants raised the limitation defence and by a concern to focus on causes of action that might not be defeated by that defence. That does not fully answer why the relevant entities and allegations were not pleaded earlier. Even so, in the circumstances of this case, I do not regard the partial nature of that explanation as sufficient to warrant refusal of leave.

62    In reaching my conclusion, I have taken into account the plaintiffs’ submissions as to prejudice. The plaintiffs emphasised that the evidence directed to the Deposit Release Scheme and Mr Qiu’s alleged role is already complete, that the solvency evidence and joint expert report are unaffected, that no new witnesses are proposed by the plaintiffs, and that there remains sufficient time before trial for any responsive pleading and evidence. They also made clear at the hearing that, if leave were granted for them to amend, they did not oppose leave being granted to the defendants to amend the defence, and accepted that both applications should be dealt with on the footing that the interests of justice favoured both sets of amendments being permitted.

63    I have not overlooked the defendants’ submission that, if limitation defences are pleaded in relation to the Ralan Arncliffe and Queensland SPV claims, the plaintiffs may need to lead further evidence identifying when particular deposits were paid and released, in what amounts, and by reference to which entities. The defendants submitted that, in the case of Ralan Arncliffe, that inquiry may extend back to deposits paid in about 2012, and that similar questions arise in relation to the Queensland developments. That may prove to be so. I do not, however, consider that it follows that the hearing dates will necessarily be imperilled.

64    The plaintiffs submitted that the need for substantial further evidence was overstated and that the relevant dates and amounts could largely be identified from the deposit release agreements and related documents already available. In that context, I would expect the parties, consistently with their obligation to conduct the proceeding in accordance with the overarching purpose, to make full and appropriate use of the mechanism provided by s 50 of the Evidence Act 1995 (Cth), rather than tendering a very large number of individual contracts. There may be other classes of document in respect of which s 50 may be sensibly used to present the evidence in a way that is efficient.

65    It is neither necessary nor appropriate to determine on this interlocutory application whether any of the proposed new plaintiffs’ claims are statute-barred or whether, by reason of r 9.05 of the Rules, the proceeding for those plaintiffs is to be treated as having commenced upon joinder. Whether the proposed claims arise out of the same or substantially the same facts, whether any limitation period applies by statute or analogy, whether any question of unconscionability arises, and whether the amendments should take effect from the original filing date or only from the date of leave and joinder are all matters better determined on full argument and, if necessary, on a settled factual footing following the completion of the evidence. That course is consistent with the approach taken by the Full Court in McGraw-Hill Financial and reflects the position ultimately taken by both parties at the hearing of this application when I raised this issue.

66    As to the defendants’ complaint about the relief sought being inappropriate under s 598 of the Corporations Act, that is a matter which should not be determined on an amendment application, particularly having regard to the broad remedial character of s 598.

67    Finally, in weighing whether leave should be granted, I have taken into account that the defendants have been on notice of the plaintiffs’ proposed amendments since late 2025. I am satisfied that the prejudice identified by the defendants can sufficiently be managed by permitting a responsive amended defence, any necessary further lay evidence, and an order for costs thrown away.

68    For those reasons, and notwithstanding that the 20B amendments are substantial, the plaintiffs should have leave to file the proposed second further amended originating process and further amended statement of claim, with the usual order for costs thrown away.

THE DEFENDANTS’ APPLICATION

69    The defendants’ application is narrower. The plaintiffs oppose only the proposed limitation plea in paragraph 126 of the further amended defence. They do not oppose the remaining amendments, which are directed to accounting and factual allegations concerning the undervalue property claims. At the hearing, the plaintiffs made clear that, if leave were granted for them to amend, they did not oppose leave being granted to the defendants to amend the defence.

70    The late introduction of the limitation defence requires scrutiny. The explanation given by the defendants is sparse. It is said that the point was overlooked when the amended defence was prepared in March 2024 and was identified only upon a later review of the pleadings. That explanation is short but frank. I am not persuaded that leave should be refused. The amendment is confined. It raises an arguable legal point in respect of payments said to have been made by RPS more than six years before 29 July 2022. The plaintiffs have had notice of that point since late 2025. The prejudice is principally forensic, in the sense that the limitation defence may materially reduce the financial utility of aspects of the plaintiffs’ case. That is a significant consequence, but not of itself a reason to shut out an arguable defence.

71    Further, once the plaintiffs are permitted to make their own amendments, the remaining prejudice from the late pleading of limitation is materially reduced. The plaintiffs accepted as much at the hearing. In those circumstances, leave should be granted to the defendants to amend the defence, including by pleading paragraph 126.

CONCLUSION

72    For these reasons, leave will be granted to both parties. I will make consequential timetabling orders directed to ensuring that the proceeding remains ready for hearing on the allocated dates. I expect the parties to be proactive in seeking further case management if developments arise that threaten the proceeding being ready for hearing on those dates. At the hearing, the plaintiffs indicated that they wish to be heard on the costs of the present applications. I will reserve the issue of the costs of the amendment applications as a matter to be decided at the final hearing.

Associate:

Dated:    9 April 2026

SCHEDULE OF PARTIES