Federal Court of Australia

Soar Development Group Pty Ltd v Fung [2026] FCA 1491

ORDERS

THE COURT NOTES THAT:

A.    Orders were made by Markovic J on 17 August 2026 that NSD784/2025 (the Company Proceeding) be heard together with NSD206/2024 (the Oppression Proceeding), and for evidence in one proceeding be evidence in the other proceeding.

B.    The proceedings are listed for a case management hearing before Markovic J on 14 October 2026.

C.    The proceedings are listed for hearing before Markovic J, with the first tranche of hearing dates scheduled to commence on 23 October 2026.

D.    These orders are made following determination of an amendment application brought in the Company Proceeding and also address variations to the timetabling orders previously made in the proceedings by Markovic J.

E.    The Court notes that the parties retain their entitlement to object to the evidence served pursuant to the orders varying the existing timetabling orders on the ground that it was served late and prejudice would be suffered if admitted into evidence.

THE COURT ORDERS THAT:

The applicant’s amendment application in the Company Proceeding

1.    Pursuant to r 8.21 of the Federal Court Rules 2011 (Cth), Soar Development Group Pty Ltd, the applicant, has leave to file and serve in the Company Proceeding an Amended Originating Application substantially in the form of annexure SL-2 to the affidavit of Shing Hei Lam affirmed 11 September 2026.

2.    Pursuant to r 16.53 of the Rules, Soar has leave to file and serve in the Company Proceeding an Amended Statement of Claim substantially in the form of annexure SL-3 to the affidavit of Shing Hei Lam affirmed 11 September 2026.

3.    By 12.00pm on 8 October 2026, Soar file and serve the Amended Originating Application and Amended Statement of Claim referred to in Orders 1 and 2.

4.    By 12.00pm on 9 October 2026, the fifth respondent, Equity Financial Group Pty Ltd (EFG), and the sixth respondent, Zhong Xiao Huang, request any further particulars reasonably required in respect of the Amended Originating Application and Amended Statement of Claim.

5.    By 12.00pm on 13 October 2026, Soar provide to EFG and Mr Huang a response to any request for further particulars made in accordance with Order 4.

6.    By 4.00pm on 20 October 2026, EFG and Mr Huang file and serve their defences to the Amended Statement of Claim.

7.    The time by which:

(a)    EFG and Mr Huang are to file and serve:

(i)    any further lay evidence in response to the amended process and pleading the subject of Orders 1 and 2 (the Amendments);

(ii)    any expert evidence in response to the Amendments; and

(iii)    their written submissions in accordance with Order 12 made by Markovic J on 27 August 2026; and

(b)    Soar is to file and serve any evidence in reply to the evidence referred to in subparagraph (a),

be determined by Markovic J, whether at the case management hearing presently listed on 14 October 2026 or at such other time as is convenient to her Honour.

8.    The existing hearing dates remain in place pending further order of the Court and the parties should act on that basis in their preparation for the hearing.

9.    The following matters remain for determination by Markovic J (whether at the case management hearing on 14 October 2026 or such other time as is convenient to her Honour):

(a)    whether some or all of the hearing dates commencing 23 October 2026 should be vacated;

(b)    if any hearing dates are vacated, any consequential orders as to costs; and

(c)    to the extent that any of the existing hearing dates are retained, the evidence and issues to be heard on those dates and the sequencing of that evidence.

10.    Soar pay EFG’s and Mr Huang’s costs of Soar’s interlocutory application filed 11 September 2026 and the costs thrown away by reason of the Amendments.

11.    The costs thrown away referred to in Order 10 include EFG’s and Mr Huang’s reasonable costs of considering and responding to the Amendments, including the costs of preparing any defence and such further lay or expert evidence as is reasonably required in response to the Amendments.

Variation of existing timetabling orders

12.    Orders 2 and 3 made by Markovic J on 1 July 2026, and Order 5 made by Markovic J on 17 August 2026, be varied so that the plaintiffs in the Oppression Proceeding are to file and serve:

(a)    their Defence to the Amended Cross-claim by 7 October 2026; and

(b)    their evidence in response by 9 October 2026.

13.    Unless the Court otherwise orders, the plaintiffs in the Oppression Proceeding are precluded from relying upon any evidence not served in accordance with Order 12(b).

14.    Order 6 made by Markovic J on 27 August 2026 be varied so that by 5.00pm on 8 October 2026, the plaintiffs in the Oppression Proceeding are to provide to the defendants in the Oppression Proceeding, and to the parties in the Company Proceeding, a draft index to the Court Book for the combined hearing of the two proceedings (Court Book). The draft index is to include placeholders for the documents filed in accordance with Orders 1 to 7 above that are not yet due to be filed.

15.    Order 7 made by Markovic J on 27 August 2026 be varied so that by 9 October 2026, Soar is to file and serve any evidence in response to the evidence of defendants in the Company Proceeding.

16.    Unless the Court otherwise orders, Soar is precluded from relying upon any evidence not served in accordance with Order 15.

17.    Order 8 made by Markovic J on 27 August 2026 be varied so that by 5.00pm on 9 October 2026, the defendants in the Oppression Proceeding, and the parties to the Company Proceeding, are to provide to the plaintiffs in the Oppression Proceeding any amendments they propose to the draft index to the Court Book.

18.    Order 9 made by Markovic J on 27 August 2026 be varied so that by 5.00pm on 12 October 2026, the plaintiffs in the Oppression Proceeding are to provide to the Associate to Markovic J and the other parties, a Court Book which is to contain, in separate sections:

(a)    pleadings;

(b)    affidavits (excluding annexures and exhibits which consist of primary documentation) or placeholders where the relevant affidavit has not yet been required to be filed and served; and

(c)    documentary evidence referred to in the affidavit evidence which is to be placed in chronological sequence so far as is practicable and consecutively numbered (without tabs unless the Court otherwise directs). If there are a significant number of emails or any other electronic communications which a party intends to rely on, the chains should be dismembered and placed in chronological sequence.

19.    To the extent that further documentary evidence is referred to in the affidavit evidence that is not yet due to be filed and served, it is to be incorporated in the Court Book in the manner in which Markovic J directs (whether by insertion in chronological order using page number suffixes or by way of an indexed supplementary court book).

20.    Order 10 made by Markovic J on 27 August 2026 be varied so that by 13 October 2026, the legal representatives for the parties are to exchange a schedule of any essential objections to evidence.

21.    Order 11 made by Markovic J on 27 August 2026 be varied so that by 9 October 2026, the plaintiffs in the Oppression Proceeding, and Soar, are to file and serve their written submissions, not exceeding 30 pages in length.

22.    Order 12 made by Markovic J on 27 August 2026 be varied so that by 5.00pm on 16 October 2026, the defendants in the Oppression Proceeding, and the respondents to the Company Proceeding (not including EFG and Mr Huang), are to file and serve their written submissions in response, not exceeding 30 pages in length.

23.    Order 13 made by Markovic J on 27 August 2026 be varied so that:

(a)    by 5.00pm on 12 October 2026, the parties are to jointly email the Associate to Markovic J a proposed trial plan prepared having regard to these orders and, to the extent that the trial plan is not agreed, marked up to show the parties’ respective positions; and

(b)    by 5.00pm on 20 October 2026, the parties must file and serve a chronology of relevant events, any objections to evidence which contains a list of objections that are pressed, the grounds for each objection by reference to the Evidence Act 1995 (Cth) and the response to those grounds by the counterparty (noting the Court’s expectation as to exchange of a schedule of objections referred to in Order 10 made on 27 August 2026 is to minimise any objections on which the Court is asked to rule), and a joint list of authorities.

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

REASONS FOR JUDGMENT

CHEESEMAN J:

INTRODUCTION

1    Soar Development Group Pty Ltd seeks leave under rr 8.21 and 16.53 of the Federal Court Rules 2011 (Cth) to file an amended originating application and an amended statement of claim in the forms annexed to the affidavit of Shing Hei Lam affirmed 11 September 2026.

2    The application was filed on 11 September 2026 pursuant to Order 4 of the orders made by Markovic J on 27 August 2026.

3    The first to fourth respondents do not oppose the application.

4    The fifth respondent, Equity Financial Group Pty Ltd (EFG), and the sixth respondent, Zhong Xiao Huang, oppose leave in relation to the amendments identified in paragraph 12 of their written submissions. The amendments opposed by EFG and Mr Huang are described in detail below.

5    I heard the amendment application on 7 October 2026 and made orders granting leave to amend, together with consequential timetabling and costs orders. Although leave was granted, Soar’s delay and the resulting prejudice to EFG and Mr Huang required orders affording them sufficient time to meet the amended case and requiring Soar to pay their costs of the application and the costs occasioned by the amendments. These are my reasons for making those orders.

6    The active parties on the amendment application were Soar, on the one hand, and EFG and Mr Huang, on the other. However, because the application had the potential to result in orders affecting the conduct of NSD206/2024 (the Oppression Proceeding) and this proceeding, which are listed to be heard together before Markovic J commencing on 23 October 2026, all parties to both proceedings were represented at the hearing. The parties to the Oppression Proceeding were heard to the extent that the application and consequential orders affected the existing hearing arrangements and related timetabling orders.

BACKGROUND

7    The proceeding was commenced on 20 May 2025. The following description of the claim is drawn from the proposed amendments which are the subject of this application. Soar alleges that two loan contracts, described as the Bin-Ice Contract and the Nice Excellent Contract (the HK Loan Agreements), were purportedly entered into on its behalf with the third and fourth respondents. Under the HK Loan Agreements, the third respondent was to advance $12 million and the fourth respondent was to advance $14.51 million, with interest payable at 15% per annum under each contract.

8    Soar alleges that the HK Loan Agreements do not bind it because they were not executed in accordance with s 127 of the Corporations Act 2001 (Cth), their execution was not authorised by Soar, and the third and fourth respondents were not entitled to rely on the assumptions in s 129. It also alleges that the first and second respondents caused Soar to enter into the contracts, and to make payments in connection with them, in breach of their statutory and fiduciary duties and in furtherance of a dishonest and fraudulent design to benefit themselves, the third respondent or the fourth respondent at Soar’s expense.

9    Soar further alleges that EFG and Mr Huang provided accounting, bookkeeping, taxation and company secretarial services to Soar. It alleges that they acted in breach of contractual and tortious duties in performing those services, including in relation to the accounting and taxation treatment of the HK Loan Agreements, the payment of interest withholding tax, the preparation of Soar’s records and statutory documents, and advice given to Soar. It also alleges that EFG and Mr Huang knowingly assisted the alleged breaches by the first and second respondents.

10    Soar seeks declarations that the HK Loan Agreements do not bind it, injunctions restraining their enforcement, repayment of amounts paid in connection with the contracts, damages or equitable compensation, interest and costs. Soar also seeks an account of profits against the first to fourth respondents.

11    Although the original originating application and statement of claim were in a number of respects poorly pleaded, when read together they advanced identifiable claims against EFG and Mr Huang for breach of contractual and tortious duties arising from the accounting, bookkeeping, taxation and company secretarial services said to have been provided to Soar, and for knowing assistance in the alleged breaches of duty by the first and second respondents. The negligence case included allegations concerning the accounting and taxation treatment of the HK Loan Agreements, withholding tax and deficiencies in Soar’s accounts and records. The originating application sought damages and equitable compensation, among other relief. The amendments therefore do not introduce those causes of action for the first time. The significance of the extent to which the amendments develop the duties, breaches, knowledge, causation and loss previously alleged is addressed below.

12    On 17 August 2026, Markovic J ordered that this proceeding be heard together with the Oppression Proceeding and that evidence in one proceeding be evidence in the other. By orders made on 27 August 2026, Soar was ordered to circulate proposed amended pleadings by 31 August 2026 and, absent consent, to file an interlocutory application by 11 September 2026. Those orders also listed both proceedings for a case management hearing on 14 October 2026. The proceedings were otherwise listed for hearing commencing on 23 October 2026 for six days and for further hearing on 10 to 11 November 2026 and 3 to 5 February 2027. Before turning to the present amendment application, I will address the relationship between the two proceedings and the present hearing arrangements and their significance to this application.

The relationship between the two proceedings

13    The Oppression Proceeding and this proceeding concern overlapping aspects of the affairs of Soar, but they are not co-extensive. The Oppression Proceeding is a shareholder oppression proceeding involving, among other matters, disputes concerning changes in the shareholding and control of Soar, the propriety of the HK Loan Agreements and payments made under them, the conduct of the directors, the maintenance and accuracy of Soar’s financial records and accounts, and the provision of financial information to shareholders and directors. This proceeding is brought by Soar itself. It challenges, among other things, whether the HK Loan Agreements bind Soar and advances claims concerning the conduct of the first and second respondents as directors and the accounting and taxation services provided by EFG and Mr Huang.

14    The parties to the two proceedings are also not identical, although Soar is a party to both. Soar is the applicant in this proceeding and the fifth defendant in the Oppression Proceeding. The Oppression Proceeding also includes parties who are not parties to this proceeding. Conversely, EFG is not a party to the Oppression Proceeding and, although Mr Huang is identified in the Further Amended Statement of Claim as a defendant to that proceeding, the claims against him were dismissed before the order was made that the proceedings be heard together. A significance of that difference is that some issues and evidence arise only in one proceeding, notwithstanding the substantial common factual substratum and the order that evidence in one proceeding be evidence in the other.

15    The overlap is nevertheless substantial. It includes issues concerning the share transactions, the HK Loan Agreements, the conduct of Soar’s directors, Soar’s books and accounts and the provision of financial information. There are also common lay and expert witnesses. The plaintiffs in the Oppression Proceeding relied upon the degree of factual, evidentiary and credit overlap in successfully seeking an order that the proceedings be heard together. Soar submitted that separate hearings would involve duplication and create a risk of inconsistent factual and credit findings, and resisted proposed alternatives which depended upon separating evidence according to particular issues.

16    There remains, however, a material distinction between the common factual issues and some of the claims advanced in different forms in this proceeding. In particular, the claims against EFG and Mr Huang include allegations concerning the content and standard of accounting and taxation services provided to Soar and the loss said to have resulted from those services. Related allegations are also advanced in the Oppression Proceeding against EFG concerning the provision of accounting, bookkeeping, tax agent and company secretarial services. Although the Further Amended Statement of Claim also contains allegations that Mr Huang owed and breached tortious and equitable duties, relief cannot be obtained against him in that proceeding to which he is no longer a party. The amendments now opposed by EFG and Mr Huang materially concern those matters, and the overlap extends to the allegations concerning directors’ duties, accounting and corporate records, the share transfers, the HK Loan Agreements and payments made under them.

17    The hearing arrangements were made against that background. By 27 August 2026 it was already anticipated that the six hearing days commencing in October might not be sufficient to complete the evidence. Markovic J observed that there was some prospect that the proceedings would not be completed in the allocated time. Counsel informed Markovic J that the five principal witnesses would require interpreters and that there was a high prospect that the evidence would not be completed in the available six days. Counsel for the first to fourth respondents added that all parties agreed that six days would not be sufficient. The parties nevertheless wished at least to commence the hearing. Her Honour directed that a proposed trial plan be prepared identifying the order of witnesses and the estimated time required for each. That proposed trial plan is now due to be provided by 12 October 2026. It was not available at the determination of this application. At the case management hearing on 27 August 2026, her Honour indicated that further dates might be found in November so that the evidence could be completed in 2026 before closing submissions were heard in early 2027. On this basis, the proceedings were also listed for further hearing on 10 to 11 November 2026 and 3 to 5 February 2027, the latter of which have been discussed as dates for closing submissions.

18    The possibility of amendment to Soar’s pleading, and of responsive evidence from EFG and Mr Huang, was also contemplated when those arrangements were made. The orders under discussion provided for EFG and Mr Huang to adduce additional evidence in response to the first to fourth respondents’ evidence and for Soar to reply to any such evidence. At the conclusion of the hearing, however, counsel for EFG and Mr Huang expressly recorded concern that the pleadings might be reopened while the evidence remained incomplete. Counsel nevertheless indicated that EFG and Mr Huang would endeavour to ensure that the hearing date was not vacated.

19    Those circumstances are relevant to the assessment of prejudice on the present application. EFG and Mr Huang now submit that expert evidence will be essential to their defence of the amended case and that it would be unfair to require them to prepare that evidence, deal with objections and prepare submissions while the combined hearing is underway. They contend that the hearing dates would have to be vacated if the opposed amendments are allowed. Soar submits that the prejudice is capable of being addressed by appropriate case management. It relies, among other things, upon the evidence underlying the amendments having already been served, the existing expectation that the combined hearing would extend beyond the October dates, and the availability of later hearing dates.

20    Accordingly, the relevant case management question is not confined to whether allowing the amendments would require further preparation by EFG and Mr Huang. It also requires consideration of whether, consistently with procedural fairness, there remains a workable basis for retaining some or all of the October hearing dates notwithstanding the further preparation required by EFG and Mr Huang. That question must take account of the reason the proceedings were ordered to be heard together, including the desirability of avoiding duplication of evidence and inconsistent findings on common factual and credit issues.

The amendment application

21    The proposed pleadings were circulated on 1 September 2026 and the present application was filed on 11 September 2026.

22    The proposed amendments include pleas concerning execution and authority, the circumstances of the advances, dishonest and fraudulent design, alleged knowledge of that design, control of the fourth respondent, share transfer documents and 2021 minutes, the scope and causation of the negligence claim, an alternative claim for excess financing costs, the interim agreement dated 15 November 2024, expanded particulars of breach and loss, and factual and formal corrections.

23    The proposed amendments also remove the claim under s 60 of the Australian Consumer Law, which is in Schedule 2 of the Competition and Consumer Act 2010 (Cth), and acknowledge that the amounts advanced to the applicant are repayable in the circumstances pleaded at proposed paragraph 71A.

24    The opposed amendments concern five broad aspects of the case against EFG and Mr Huang.

25    First, proposed paragraphs 27A to 27D, 59 and 61A to 61D materially develop the professional negligence case, including the scope of duty, Soar’s reliance and vulnerability, the risks of economic loss and the precautions said to have been required.

26    Secondly, proposed paragraphs 41G, 46B and 50A concern Soar’s access to its financial records, the February 2016 share transfers, and the ASIC Form 484.

27    Thirdly, the amendments to paragraphs 72 to 74 and proposed paragraphs 73A and 73B materially develop and particularise the knowing assistance case, including the state of knowledge alleged against EFG and Mr Huang.

28    Fourthly, proposed paragraphs 76(f) to (k), 77, 77A and 77B add alleged deficiencies in the accounting and taxation services and plead more specifically factual causation and the asserted scope of liability.

29    Fifthly, EFG and Mr Huang also oppose proposed paragraph 79, which materially enlarges the pleaded case as to loss and damage. I address below the parties’ competing characterisations of these amendments, the evidentiary basis for them and the significance of those matters to the exercise of the discretion to grant leave.

30    The essential basis of the opposition is timing and prejudice. EFG and Mr Huang submit that the amendments materially enlarge the negligence and knowing assistance cases and the loss claimed, although the material on which the opposed amendments depend was available to Soar by 4 May 2026 or, in specified instances, by 15 June 2026. They contend that the delay leaves insufficient time to obtain particulars, plead to the amended case, obtain necessary lay and expert evidence, and prepare for trial.

31    In support of that prejudice, Mr Haslam deposes that EFG and Mr Huang were in the process of engaging an expert tax accountant to respond to the proposed allegations. The expert advised that he required the material relied upon by Mr Dayananda, and would require four to six weeks to prepare his report. At the hearing of the present application, the Court was informed that the requested material had been provided to EFG and Mr Huang only that morning.

32    It should also be made clear that EFG and Mr Huang do not oppose the amendments generally. In particular, paragraph 12 of their written submissions does not identify proposed paragraphs 36A to 36E, 41A to 41E, 56A, 66A, 71A or 74A to 74AA as amendments in respect of which leave is opposed.

APPLICABLE PRINCIPLES

33    Leave is required to file the proposed amended originating application and amended statement of claim because the pleadings have closed: rr 8.21 and 16.53. An order granting leave may be made subject to conditions: r 1.33. The discretion to grant leave is broad, but must be exercised in a manner consistent with the overarching purpose stated in s 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act), namely to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.

34    The relevant considerations include the nature and importance of the proposed amendment to the party seeking it, the stage reached in the proceeding, the explanation for the amendment, any resulting delay or prejudice, and whether prejudice can adequately be addressed by costs. The Court must also consider the efficient use of its resources and the interests of other litigants. Determining the real issues between the parties is important, but does not displace those considerations: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 at [30] (French CJ), [95], [97] (Gummow, Hayne, Crennan, Kiefel and Bell JJ); University of Sydney v ResMed Ltd (No 5) [2012] FCA 232 at [14] (Stone J); Selvaratnam v St George – A Division of Westpac Banking Corporation (No 2) [2021] FCA 486 at [28] (Stewart J).

35    The party seeking leave bears the onus of satisfying the Court that the discretion should be exercised in its favour: Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118 at [17] (Marshall, Rares and Flick JJ).

36    An amendment may be more readily permitted where it reformulates an existing claim or defence by reference to evidence that has been or will be adduced, or gives proper legal expression to a controversy that already exists but has not been clearly or sufficiently pleaded. Whether leave should be granted nevertheless depends on the exercise of the Court’s discretion: Aon at [71]-[72] (Gummow, Hayne, Crennan, Kiefel and Bell JJ); TCN Channel 9 Pty Ltd v Antoniadis (1998) 44 NSWLR 682 at 695B-C (Handley, Beazley and Stein JJA); Commonwealth v McLean (1996) 41 NSWLR 389 at 396C-397D (Handley and Beazley JJA).

CONSIDERATION

The competing positions

37    The amendments opposed by EFG and Mr Huang have been identified above. Their opposition is directed principally to the timing of the amendments and the prejudice said to arise from the expansion of the case they must meet shortly before the hearing. Soar submits that the amendments largely refine or particularise existing claims, conform the pleading to evidence already served and do not occasion prejudice that cannot be addressed by an appropriate timetable and an order for costs. It consents to an order that it pay EFG and Mr Huang’s costs thrown away by reason of the amendments. I address the competing positions by considering the opposed amendments by subject matter, before turning to the explanation for their timing, the resulting prejudice and the case management consequences.

The professional negligence case

38    Proposed paragraphs 27A to 27D, 59 and 61A to 61D materially develop the professional negligence case against EFG and Mr Huang. They plead in considerably greater detail the scope of the services said to have been provided, Soar’s reliance and vulnerability, the risks of economic loss said to attend the performance of those services and the precautions which it is alleged a reasonable accountant, bookkeeper, tax agent and company secretary would have taken. They also articulate more specifically the causal pathway by which the alleged breaches are said to have produced the claimed loss. EFG and Mr Huang recognise that these matters derive substantially from the report of Mr Dayananda served on 4 May 2026 and submit that they could have been pleaded from that time. That submission is substantially consistent with the evidentiary basis identified for the amendments.

39    Soar submits that the amendments do not introduce a new negligence claim. There is force in that submission. From the commencement of the proceeding, Soar alleged that EFG and Mr Huang owed duties to exercise reasonable care and skill in performing professional services for Soar. The Defence joined issue on that case. EFG and Mr Huang admitted that EFG was obliged under the retainers, and owed a duty as Soar’s accountant, to exercise reasonable care and skill in performing the services required by the retainers. They contended, however, that the scope of those obligations was limited by the terms of the retainers and denied that they had been engaged to provide company secretarial services. They also challenged the adequacy of material parts of the negligence pleading, including paragraphs 59 to 61, and raised similar complaints as to the sufficiency of the allegations at paragraphs 72 to 74 and 77 to 78.

40    I therefore accept Soar’s characterisation only to a point. The amendments do not introduce a new cause of action founded upon a new retainer. Instead, the amendments materially develop and particularise the existing professional negligence case by identifying additional services and duties, Soar’s asserted reliance and vulnerability, particular risks of economic loss, the precautions said to have been required and the alleged causal connection between breach and loss.

41    The terms of the Defence are relevant in that context. EFG and Mr Huang alleged that paragraphs 59 to 61 did not contain sufficient particulars to permit them to respond and were therefore embarrassing and liable to be struck out. Having contended that material aspects of the negligence case were insufficiently particularised to permit a proper response, EFG and Mr Huang cannot treat the greater particularisation of that existing case as, of itself, a reason to refuse leave. There is an evident forensic advantage in the case which they must meet being stated in the pleading rather than left to emerge from the evidence at trial. Their earlier pleading complaints support the grant of leave to plead the existing negligence case with greater precision. They do not, however, answer their separate objection concerning delay or diminish the requirement that they be afforded a fair opportunity to meet those aspects of the amended case which materially develop what was previously pleaded.

42    That distinction is important because the same circumstance which favours amendment also exposes the delay in seeking it. To the extent that these amendments were required to bring Soar’s pleading into conformity with evidence served in May 2026, Soar should have formulated the requisite amendments and sought leave to make them promptly after that evidence was completed. That course was consistent with Soar’s obligation under s 37N(1) of the FCA Act to conduct the proceeding in a manner consistent with the overarching purpose. The fact that EFG and Mr Huang had the evidence does not mean that they were required to prepare their case on the footing that every proposition appearing in it would subsequently form part of an enlarged pleaded case against them. Until the proposed amended pleading was provided, they were entitled to prepare their case by reference to the pleading then on foot. Their resulting need to plead to the developed case and obtain responsive evidence is therefore not answered merely by observing that they have possessed Soar’s evidence since May 2026.

43    I am satisfied that it is consistent with the overarching purpose to grant leave in respect of this category of amendments, but on conditions which reflect Soar’s delay in bringing them forward and facilitate the trial of the real issues in dispute in a manner which is procedurally fair to EFG and Mr Huang. The existing deficiencies in the pleading, including those identified by EFG and Mr Huang themselves, favour the negligence case being properly articulated in the pleading before trial. The consequences of Soar’s delay are properly addressed through costs and the procedural accommodation reasonably required to permit EFG and Mr Huang to meet the developed case.

44    To proceed otherwise would require the parties and the trial judge, throughout the hearing, to distinguish between evidence relevant to the case as pleaded and evidence directed to matters disclosed in Soar’s evidence but falling outside the existing pleading. That course would be productive of time-consuming and arid evidentiary debate about the permissible use of evidence, the scope of cross-examination and the matters capable of supporting findings and relief, upon which the trial judge would be required to rule. It would divert the hearing from the determination of the substantive controversy and consume hearing time which is already constrained. The inefficient use of the available hearing time in resolving disputes generated by a pleading which does not reflect the case sought to be advanced provides a further reason for permitting the amendment rather than attempting to conduct the trial by reference to the existing pleading.

The share transfers and corporate records

45    EFG and Mr Huang oppose proposed paragraphs 41G, 46B and 50A, which concern Soar’s access to its financial records, the February 2016 share transfers and the allegation concerning the date recorded in the ASIC Form 484. They submit that the evidentiary foundations for proposed paragraphs 41G and 46B were contained in the affidavit of Wenxiao Mai served on 4 May 2026 and that the evidentiary foundation for proposed paragraph 50A was contained in the affidavit of Zhongyong Mai and Exhibit ZM-1 served at that time. Those submissions identify a substantial evidentiary foundation for the proposed allegations which was available to Soar in May 2026.

46    Soar answers that submission, particularly in relation to proposed paragraph 50A, by relying upon evidence subsequently served by the first to fourth respondents. It submits that proposed paragraph 50A responds to evidence which was not served until August 2026 and that it was necessary to review that evidence before the amendments were finalised. In particular, Mr Lam identifies evidence from Mr Jianfeng Feng that he left the January 2016 share-transfer form undated at the suggestion of Mr Huang. That provides a more substantial explanation for the timing of proposed paragraph 50A than is available for amendments founded wholly upon Soar's May evidence.

47    The amendments add material factual allegations concerning the underlying transactions and corporate records rather than principally giving greater particularity to an existing cause of action. Nevertheless, the matters addressed by the amendments, namely access to Soar’s records, the share transfers and the preparation and lodgment of the ASIC Form 484, form part of the existing factual and evidentiary controversy. The amendments do not introduce a distinct transaction unconnected with the existing proceeding, and there is an advantage in the pleading stating expressly the factual case which Soar proposes to advance. There is nevertheless force in EFG and Mr Huang’s submission that, insofar as proposed paragraphs 41G, 46B and 50A are founded upon Soar’s May evidence, they could have been pleaded earlier. The position is less stark in relation to proposed paragraph 50A because the allegation was also informed by evidence served by the first to fourth respondents in August 2026.

48    I am satisfied that it is consistent with the overarching purpose to grant leave in respect of proposed paragraphs 41G, 46B and 50A. The delay does not justify refusing leave to bring the pleading into conformity with the factual case to be advanced at trial. It does, however, require conditions which reflect Soar’s delay and afford EFG and Mr Huang a procedurally fair opportunity to meet the amended factual case. I address those conditions below.

The knowing assistance case

49    EFG and Mr Huang oppose amendments to paragraphs 72 to 74 and proposed paragraphs 73A and 73B. The amendments add particulars of the knowledge alleged against them and expressly allege that, by no later than 25 February 2016, they knew of, deliberately shut their eyes to, or recklessly failed to inquire into, the alleged dishonest and fraudulent design of the first and second respondents. EFG and Mr Huang describe proposed paragraph 73B as a new and serious allegation and submit that the knowledge case is materially expanded, notwithstanding that the matters relied upon were already pleaded or contained in evidence available by May 2026.

50    Soar disputes that characterisation. It points to allegations in the existing pleading that EFG and Mr Huang knew that the first and second respondents sought fraudulently to benefit themselves. On that footing, Soar submits that the amendments particularise an existing knowing assistance claim rather than introducing a new one. Soar also relies upon evidence served in August 2026 concerning the undated share-transfer form and the March 2021 minutes is said to bear upon proposed paragraphs 73, 73A and 73B, while Mr Debenham’s evidence concerning borrowing rates is said to bear upon proposed paragraphs 74B and 74D.

51    I accept Soar’s characterisation only to a point. Paragraph 72 of the existing pleading already alleged that EFG and Mr Huang knew, among other things, that, in effecting the pleaded breaches, the first and second respondents sought fraudulently to benefit themselves, the third respondent and the fourth respondent at Soar’s expense. The existing pleading made a corresponding allegation at paragraph 73(b) concerning the first respondent’s fraudulent attempt to benefit himself and the second respondent in connection with ASIC Form 484. The amendment to paragraph 72 adds a further particular, numbered (ix), by which Soar expressly relies upon the first four categories of knowledge identified in Baden Delvaux v Société Générale pour Favoriser le Développement du Commerce et de l'Industrie en France SA [1993] 1 WLR 509 at 575 (Gibson J), namely actual knowledge, wilfully shutting one’s eyes to the obvious, wilfully and recklessly failing to make such inquiries as an honest and reasonable person would make, and knowledge of circumstances which would indicate the facts to an honest and reasonable person.

52    The amendments nevertheless go beyond particularising the basis upon which knowledge is alleged. Proposed paragraph 66A develops the underlying allegation in paragraph 66 by pleading that the breaches of the first and second respondents were committed in furtherance of a “dishonest and fraudulent design”, namely to obtain for themselves, the third respondent and/or the fourth respondent a benefit at Soar’s expense while concealing identified matters from Soar. Proposed paragraph 73B then takes the design articulated in proposed paragraph 66A as its object of knowledge and alleges that, from no later than 25 February 2016, EFG and Mr Huang knew of the design, wilfully shut their eyes to it, or wilfully and recklessly failed to make the inquiries about it that an honest and reasonable person would make. Proposed paragraph 74(c) completes this aspect of the amended case by alleging that, with the knowledge pleaded in paragraph 73B, EFG and Mr Huang knowingly assisted the first and second respondents in furtherance of the design pleaded in paragraph 66A. The amendments therefore materially develop both the underlying dishonest design said to have been pursued by the first and second respondents and the case that EFG and Mr Huang knew of and assisted that design. They do not merely particularise the knowledge case already pleaded.

53    The seriousness of that developed case favours its clear articulation in the pleading, but also requires that EFG and Mr Huang be afforded a fair opportunity to meet it. Their previous possession of some or much of the underlying evidentiary material did not require them to anticipate that the allegation that they knew the first and second respondents sought fraudulently to benefit themselves and others would subsequently be developed into a pleaded dishonest and fraudulent design of the kind now articulated in paragraph 66A, or that they would be alleged to have had knowledge of and assisted that design in the manner pleaded in paragraphs 73B and 74(c).

54    I am nevertheless satisfied that it is consistent with the overarching purpose to grant leave in respect of these amendments, subject to conditions which reflect Soar’s delay and permit EFG and Mr Huang to file a responsive defence and adduce such further evidence as they may reasonably require.

Further alleged deficiencies, causation and scope of liability

55    Proposed paragraphs 76(f) to (k), 77, 77A and 77B add allegations concerning deficiencies in the accounting and taxation services and plead factual causation and the asserted scope of liability by reference to the “Reasonable Precautions” pleaded in proposed paragraph 61C. EFG and Mr Huang submit that the additional allegations derive from identified parts of the report of Mr Dayananda and that none depends upon evidence becoming available after 4 May 2026. They rely upon these amendments as part of what they contend is a material expansion of the professional negligence case.

56    Soar submits that the additional allegations of breach reflect the evidence of Mr Dayananda and that the express pleading of causation refines rather than transforms the existing negligence case. It also relies upon EFG and Mr Huang’s previous complaint that paragraph 77 was insufficiently particularised and says that the amendments are supported by evidence already served, without the need for further evidence in chief.

57    These amendments should be characterised consistently with the professional negligence amendments considered above. They do not introduce a different cause of action, but they materially develop the existing negligence case by identifying additional alleged deficiencies and articulating more precisely the causal pathway and the asserted scope of liability, by reference to the precautions pleaded in proposed paragraph 61C. The fact that the proposed allegations reflect evidence already served favours the pleading identifying clearly the case to which that evidence is directed. It also exposes the delay in seeking the amendments.

58    EFG and Mr Huang were entitled to prepare their case by reference to the pleading then on foot. Their possession of the evidence from which the amended allegations are derived did not require them to anticipate each allegation of breach, causation or scope of liability which Soar might subsequently formulate from that evidence. Nevertheless, for the reasons already given, it is preferable that the materially developed case be identified in the pleading before trial. I am therefore satisfied that it is consistent with the overarching purpose to grant leave in respect of these amendments, subject to conditions which reflect Soar’s delay and afford EFG and Mr Huang sufficient time to plead to, and adduce any responsive evidence reasonably required to meet, that case.

The expanded claim for loss and damage

59    EFG and Mr Huang place particular reliance on proposed paragraph 79. They submit that the former paragraph 79 confined the pleaded loss relevant to them to anticipated rectification costs of up to $390,000, whereas proposed paragraph 79 increases the rectification estimate to between $420,000 and $870,000 and introduces further heads of loss. They also submit that the additional heads are insufficiently particularised and that further particulars and expert taxation evidence will be necessary before they can properly plead and prepare their defence.

60    That submission has substantial force as to the practical consequences of the amendment. Proposed paragraph 79 is not merely an adjustment to the upper limit of an existing head of loss. It pleads a materially broader case as to loss, including payments totalling $6,809,218.30, interest withholding tax of $756,493.18, excess financing costs, potential taxation liabilities estimated at between $13.4 million and $17.9 million, unpaid superannuation contributions and potential liabilities arising from the share-transfer documents and March 2021 minutes. The expert tax accountant retained by EFG and Mr Huang requested the materials relied upon by Mr Dayananda, together with any documents subsequently provided to him, and advised that four to six weeks would be required to prepare a report addressing the proposed amendments. As mentioned, those materials were only provided by Soar on the morning of the amendment application.

61    That does not mean, however, that the entirety of the loss case is new. The existing statement of claim alleged payments totalling $6,809,218.30 made or applied for the benefit of the third respondent and the payment, on the advice of EFG and Mr Huang, of $756,493.18 in interest withholding tax to the Commissioner. It also alleged that EFG and Mr Huang knew, among other things, that the payments pleaded at paragraph [58] were not properly characterised as interest and that Soar was not required to pay interest withholding tax, and that they knowingly assisted the first and second respondents in effecting the breaches by which those payments were made or applied. The originating application sought damages and/or equitable compensation to be assessed and paid to Soar by each of the first to sixth respondents. The amendments therefore materially enlarge the pleaded case as to the losses said to be recoverable from EFG and Mr Huang, but do so against the background of an existing claim for monetary relief arising from conduct and payments already pleaded. Soar relies upon the revised rectification estimate having been disclosed in the report of Mr Dayananda and the alternative excess financing case being the subject of the reports of Mr Mazzone and Mr Debenham. The appropriate characterisation is therefore that proposed paragraph 79 materially develops and enlarges the pleaded case as to loss, while doing so substantially within an existing factual, evidentiary and remedial controversy.

62    EFG and Mr Huang’s prior possession of the underlying evidence does not answer the resulting prejudice. They were entitled to prepare their case by reference to the losses and causal case then pleaded, rather than every additional head of loss which might subsequently be formulated from the evidence. There is also force in their complaint that proposed paragraph 79 does not fully disclose the derivation and causal basis of each additional head.

63    I have also considered whether leave should be refused in respect of some or all of the additional heads of loss in proposed paragraph 79 because of the present state of their particularisation. There is considerable force in EFG and Mr Huang's complaint that paragraph 79, which identifies the Nucleus Accounting letter dated 5 May 2025 as its only particular, does not itself adequately disclose the derivation and causal basis of each additional head. That deficiency does not, however, justify refusing leave. Some of the additional losses concern payments or subject matters already within the existing factual and remedial controversy, while the revised rectification estimate and the excess financial claim are supported by expert evidence already served. I am therefore satisfied that it is consistent with the overarching purpose to grant leave in respect of proposed paragraph 79, subject to conditions requiring any further particulars reasonably sought to be provided promptly and affording EFG and Mr Huang sufficient time thereafter to plead and adduce responsive evidence. That conclusion concerns only whether the additional losses may be pleaded; it does not determine whether any particular head is established or recoverable.

The explanation for the timing of the amendments

64    The explanation for the timing is not satisfactory. Soar says that its present solicitors were retained on 26 February 2026; that preparation until 4 May 2026 was directed to completing its evidence; that a review of the pleading after that evidence was completed revealed errors and inconsistencies and respects in which the pleading did not conform to the evidence; that evidence from the first to fourth respondents was not served until August 2026; and that the Oppression Proceeding imposed substantial demands during the same period. It also relies upon having foreshadowed on 26 June 2026 that further allegations against EFG and Mr Huang supported by the report of Mr Dayananda would be pleaded. That foreshadowing stated that the amendments would be made “imminently (no later than July 2026)”.

65    Those matters provide some explanation for the timing, but their significance differs between the categories of amendment. In respect of amendments responsive to evidence first served in August 2026, they provide a material explanation. That is relevant particularly to proposed paragraph 50A and aspects of the amended knowing assistance case. They do not satisfactorily explain the delay in bringing forward amendments which substantially derive from Soar’s own evidence served in May 2026. Once the review following completion of that evidence disclosed that the pleading did not adequately state the case Soar intended to advance, there was an evident need to formulate and seek the amendments promptly. That assumed particular importance once Soar sought to have this proceeding heard together with the Oppression Proceeding at the hearing commencing on 23 October 2026, this proceeding not otherwise having been listed for final hearing.

66    Neither the foreshadowing on 26 June 2026 nor the orders made on 27 August 2026 provide a sufficient explanation for Soar’s delay. Notice that amendments will be sought is not equivalent to a pleading identifying the case in respect of which leave will be sought. EFG and Mr Huang were entitled in the meantime to prepare by reference to the pleading then on foot. Their possession of the underlying evidence did not require them to anticipate the particular duties, breaches, states of knowledge, causal allegations and heads of loss which Soar might formulate from it. The orders of 27 August 2026 established the procedure and timetable for seeking leave, with which Soar complied, but did not explain why amendments founded upon the May evidence had not been formulated earlier. Indeed, the foreshadowing that amendments would be made no later than July 2026 demonstrates that the need for them had already been identified.

67    I therefore afford substantial weight against Soar to the unexplained delay in bringing forward those amendments which substantially derive from its May 2026 evidence. For the reasons given above, I consider that delay to have been inconsistent with Soar’s obligation under s 37N(1) of the FCA Act to conduct the proceeding in a manner consistent with the overarching purpose. Soar consents to an order that it pay the fifth and sixth respondents’ costs thrown away by reason of the amendments. Such an order is appropriate and addresses the financial consequences of work rendered unnecessary by the amendments, but does not address the preparation prejudice resulting from their timing, including the need identified by EFG and Mr Huang to plead to the developed case and obtain responsive expert evidence and file additional lay evidence.

Prejudice and case management

68    The prejudice to EFG and Mr Huang is not confined to the ordinary cost of amending a defence. They identify the need to obtain particulars, plead, consider responsive lay evidence, obtain expert evidence, deal with any evidence in reply, prepare objections and submissions, and undertake that work immediately before, and potentially during, the combined hearing. Their expert has identified the material required to prepare the responsive report and advised that four to six weeks will be required. The proposed amendments therefore give rise to demonstrated prejudice in respect of EFG and Mr Huang’s preparation, particularly in relation to the materially developed professional negligence and loss cases.

69    Soar submits that the prejudice can be managed because it will adduce no further evidence in chief relevant to the amendments, the evidence was not expected to conclude during the October dates, further hearing dates were contemplated and 10 to 11 November 2026 and 3 to 5 February 2027 have been reserved. It submits that responsive expert evidence can therefore be accommodated within the existing structure. Soar also relies on what it describes as a failure by EFG and Mr Huang to take available steps to mitigate the prejudice, including by seeking particulars of the proposed amended pleading before the hearing. It further submits that refusal of leave would require the proceeding to be tried upon a pleading which does not conform to the evidence and would invite objection and argument at the hearing.

70    At the hearing, I was informed that EFG and Mr Huang had previously requested further and better particulars of the original pleading and that particulars had been supplied in response. Neither the request nor the particulars supplied in response was in evidence on this application. I therefore make no finding as to their content or adequacy. I do not regard the fact that EFG and Mr Huang did not make a further request for particulars of the proposed amended pleading before this application was determined as materially diminishing the prejudice identified above. While that course would have been open to them, they were entitled to know whether leave would be granted and, if so, the case which they would thereafter be required to plead to and meet.

71    I do not accept that the material presently before the Court demonstrates that the existing October fixture can proceed in the manner previously contemplated without modification. The fact that the allocated six days were not expected to complete all of the evidence does not itself establish that the consequences of these amendments can fairly be accommodated simply by receiving responsive evidence later. The two proceedings were ordered to be heard together in circumstances of substantial overlap in factual, evidentiary and credit issues. The existing arrangements contemplated the preparation of a hearing timetable identifying the order and estimated duration of witnesses, with further dates to be found if necessary.

72    The difficulty is not merely one of finding enough hearing days. Procedural fairness requires consideration of whether the evidence can be sequenced so that EFG and Mr Huang can fairly meet the amended case without unnecessary duplication, the recall of witnesses or repeated cross examination. That question must be assessed in the practical context in which the amendments have been brought forward. EFG and Mr Huang, like Soar, are otherwise engaged in preparing for an imminent combined hearing for which the available hearing time is already understood to be tight. The additional work occasioned by the amendments, including obtaining particulars, pleading to the amended case and preparing responsive lay and expert evidence, must be undertaken against that background. It would be unrealistic to assess the prejudice occasioned by that work as though it were being undertaken in isolation, or to treat the demands of preparing for the imminent hearing as counting for nothing. The present materials do not identify which witnesses could be called before their responsive expert evidence is complete, which witnesses or issues may need to be deferred, or how any evidence in reply would be accommodated. Those matters are significant because the proceedings were ordered to be heard together partly to avoid duplication and inconsistent factual and credit findings.

73    In advance of the hearing of this application, the parties to both proceedings were asked to address those matters specifically. They were asked to identify the evidence proposed to be taken during the October hearing dates, the proposed order of witnesses, the effect of EFG and Mr Huang’s proposed expert evidence on the fair cross examination of existing lay and expert witnesses, whether the evidence could practicably be sequenced without recalling witnesses, and the directions and timetable that would be required if leave to amend were granted. Those matters were raised so that the Court could assess whether the prejudice relied upon by EFG and Mr Huang could in fact be accommodated while preserving some or all of the October hearing dates.

74    At the hearing, the parties' submissions confirmed that the grant of leave would require a substantial revision of the timetable applicable to EFG and Mr Huang. In particular, further particulars may be required before their defences can be settled; they seek to adduce further lay and expert evidence; and provision must be made for any evidence in reply. The oral submissions also confirmed that those matters may affect the sequence in which at least some of the existing evidence can fairly be received.

75    It is not necessary or appropriate on this application to determine the resulting sequence of the combined trial. That question affects parties and evidence in both proceedings and is a matter over which Markovic J should have control as the docket judge, with the benefit of the amended pleadings and the parties’ proposed trial plan. The appropriate course is therefore to preserve the existing hearing dates pending further order, while expressly leaving to her Honour whether some or all of those dates should be vacated and, if retained, what evidence and issues should be heard on the dates preserved. In the event that some or all of the dates are vacated, the cost consequences which follow will also be a matter for determination by Markovic J. It is appropriate, however, to emphasise for the parties’ benefit that, unless and until Markovic J orders otherwise, the hearing of these proceedings will commence on 23 October 2026 and the parties must prepare to proceed on that basis.

76    Costs can compensate EFG and Mr Huang for work thrown away. They cannot provide the time required properly to obtain expert evidence and prepare to meet the amended case, nor can they resolve the forensic difficulties which may arise if parts of the combined trial proceed while that preparation remains incomplete. The prejudice must therefore be addressed both by an order for costs and by affording EFG and Mr Huang sufficient time to understand and meet the amended case.

Overall conclusion on leave

77    Having considered the nature of the amendments, the explanation for their timing and the prejudice to EFG and Mr Huang, I am satisfied that it is consistent with the overarching purpose to grant leave in respect of the opposed amendments, but on conditions which reflect Soar’s delay and facilitate the trial of the real issues in dispute in a manner which is procedurally fair to EFG and Mr Huang. In reaching that conclusion, I have also taken account of the respects in which the amendments narrow the controversy, including the removal of the claim under s 60 of the Australian Consumer Law and the acknowledgment pleaded at proposed paragraph 71A concerning repayment of the amounts advanced to Soar. The amendments permit the pleadings to identify the controversies which Soar seeks to have determined and avoid the procedural and evidentiary inefficiency that would attend attempting to conduct the trial by reference to pleadings which do not correspond with the case advanced in the evidence.

78    That conclusion does not excuse Soar’s delay. The conditions upon which leave is granted should reflect that delay and ensure that EFG and Mr Huang have sufficient time to understand and plead to the amended case, obtain any responsive evidence reasonably required and undertake the further preparation necessary to meet it. The immediate steps required to regularise the pleadings can and should be fixed now. The timetable for responsive lay and expert evidence and any evidence in reply, and the future use of the existing hearing dates, are more appropriately fixed by Markovic J as the docket judge in the combined proceedings. Soar should bear the costs thrown away by reason of the amendments. Those orders place the immediate consequences of the delay upon Soar, while permitting the real issues in dispute to be identified in the pleadings and determined in a procedurally fair manner.

79    There remains the question of the costs of the application. Although Soar has succeeded in obtaining leave to amend, the application was necessitated by amendments which, to a substantial extent, could and should have been brought forward earlier. EFG and Mr Huang were entitled to oppose the application by reason of its timing and the prejudice which the proposed amendments, if allowed without appropriate procedural protection, would occasion. Their opposition has resulted in the identification of that prejudice and the need for conditions which afford them sufficient time to meet the amended case. In addition to the costs order I will make in relation to the amendments, Soar should pay the fifth and sixth respondents’ costs of the interlocutory application.

Consequences for the hearing

80    It does not follow, however, that I should determine on this application that the October dates serve no continuing purpose. The proceedings remain listed for case management before Markovic J on 14 October 2026 and the parties are required to provide a proposed timetable for the combined hearing. Those arrangements provide an appropriate occasion for the parties to put before her Honour a revised and concrete trial plan which takes account of the amendments allowed by these reasons and the time reasonably required by EFG and Mr Huang to plead and obtain responsive evidence.

81    It will be for Markovic J at the case management hearing to determine whether there remains utility in retaining some or all of the October hearing dates. The parties may then address whether the evidence can be sequenced so that evidence unaffected by the amendments is taken during those dates, including whether discrete evidence in the Oppression Proceeding can proceed without duplication or unfairness and whether common witnesses can fairly be completed without awaiting the responsive evidence. Against those considerations will be the risk that retaining part of the existing fixture would fragment the evidence, require repeated cross examination or the later recall of witnesses, or otherwise undermine the efficiencies sought to be achieved by hearing the proceedings together. Those matters affect both proceedings and parties beyond Soar, EFG and Mr Huang. The present application does not provide a sufficient basis for me to determine them.

82    That course is consistent with the arrangements contemplated on 27 August 2026. It was then anticipated that the allocated six days might not complete the evidence, that a hearing timetable identifying the order and estimated duration of witnesses would be prepared, and that further dates might be required. The possibility of amendment and responsive evidence were also contemplated. EFG and Mr Huang nevertheless expressly recorded their concern that the pleadings might be reopened while the evidence remained incomplete. Their indication that they would endeavour to preserve the hearing date was not an acceptance that whatever amendments subsequently emerged, and whatever responsive evidence they required, could fairly be accommodated within the existing fixture.

83    It is nevertheless necessary to make some consequential adjustments to the existing timetabling orders governing preparation of the combined proceedings. At the hearing, proposed revised directions were advanced in relation to the outstanding steps in the Oppression Proceeding and the preparation of the combined court book and submissions. It is appropriate to make the variations necessary to preserve an orderly course of preparation pending the case management hearing before Markovic J. Those variations are procedural only and do not determine any objection to the admission or use of evidence on the ground that it was served late, including any objection based on prejudice. Nor do they determine how the combined hearing will be sequenced. Those matters remain for subsequent determination.

84    Given the proximity of the remaining hearing dates and the need to permit preparation of a stable court book and objection schedule, it is appropriate that the extended dates for outstanding evidence operate as final dates, subject to further order. That does not foreclose an application for leave to rely on later evidence if circumstances justify it. That course was proposed in the short minutes advanced for the consequential variation of the timetable and was not actively opposed by the parties affected by the proposed guillotine orders.

85    For those reasons, the fact that the combined hearing was already expected to extend beyond the October hearing dates does not establish that the prejudice resulting from the amendments can be accommodated within the existing hearing arrangements. The appropriate course is to leave the existing case management hearing before Markovic J undisturbed. At that hearing, her Honour can determine the revised timetable for the combined proceedings, whether there remains utility in retaining some or all of the October dates and what further hearing dates are required.

CONCLUSION

86    For those reasons, Soar will have leave to file and serve the amended originating application and amended statement of claim, subject to the conditions reflected in the orders. Soar will pay EFG and Mr Huang’s costs of the interlocutory application and the costs thrown away by reason of the amendments.

87    The existing hearing dates will remain in place pending further order. Whether some or all of those dates should be vacated or retained and, to the extent they are retained, what evidence and issues should be heard and in what sequence, will remain for determination by Markovic J.

Associate:

Dated:    7 October 2026

SCHEDULE OF PARTIES