Australia, Aug. 21 -- New South Wales Land and Environment Court issued text of the following judgement on July 21:

1. By a Statement of Claim, filed on 24 February 2023, Jingsi Wang ("the plaintiff") brought proceedings against Haiyang Fan ("the defendant") for failing to repay a loan to the plaintiff of 10 Million RMB and breaching a promise to marry the plaintiff on condition that or in consideration for the plaintiff paying to the defendant the sum of $248,500. These monies were paid by the plaintiff to the defendant in December 2022.

2. In response to the Statement of Claim, the defendant filed a Defence and a Statement of Cross-Claim which were twice amended. The final versions of those documents were filed on 22 September 2023. In substance, the defendant's case alleged that the payments made by the plaintiff, in December 2022, were, in effect, partial repayments of previous debts owed to the defendant by the plaintiff. There were 9 transactions that the defendant relied upon, in this respect, that were alleged to have been made by the defendant, or companies he controlled, at the direction of the plaintiff, between August 2018 and February 2022. In August 2023, the plaintiff raised an additional transaction which was alleged to have occurred in October 2018. In total there were 10 disputed transactions.

3. The hearing in this matter was originally set down for 19 and 20 September 2023. However, the hearing was adjourned on 19 September 2023 as a result of the defendant filing late evidence, namely, an affidavit of the defendant of 14 September 2023 (the "late evidence"). The late evidence, inter alia, raised new payments said to have been made by the defendant, or companies he controlled, which he contended were debts owed to him by the plaintiff as well as alleged WeChat conversations. As a result, the hearing was delayed until 12 December 2023. I will return to the effect of this adjournment below.

4. The Court delivered judgment, in respect of the claim and cross-claim, on 24 October 2024: Wang v Fan [2024] NSWSC 1339 ("the primary judgment").

5. The issue in this supplementary judgment concerns the determination of costs as between the parties.

6. In determining that issue, the Court will hereafter use the short forms used in the primary judgment. As in the primary judgment the Court will not separately refer to the defendant as a cross-claimant and will use the expression "the defendant" to refer to both categories. The same approach is taken to the plaintiff and cross-defendant.

7. The parties agreed that the Court should determine this issue on the papers, however, the defendant's consent was conditional upon "the assumption that the Court does not propose to entertain the allegations of fraud and dishonesty" referred to in the plaintiff's submissions on costs.

8. The Court acknowledges that the primary judgment, in assessing the credibility of the defendant, characterised some of the defendant's conduct as dishonest. However, fraud was never pleaded and I accept the defendant's submission that "it is well established that claims of fraud and dishonesty needs to be specifically pleaded, particularised and proved if sought to be alleged. [1] In this respect, I note that in written reply submissions, counsel for the plaintiff accepted that fraud was not pleaded but submitted that "if fraud is not an element of a party's claim or defence, it is not a pleadable matter... [t]hus, the dishonesty of a defendant's defence or his evidence in support of his defence does not make it a pleadable matter... the honesty of witness's testimony is a real issue in the trial".

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1980748fa4cb82f2410fbd42)

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