Amirbeaggi v NSW Self Insurance Corporation

The claim transferred from NCAT to the District Court

1. The background to the proceedings was set out clearly and succinctly by Senior Member Robinson (as he then was) in the NCAT decision at [3] - [7] and [12] - [13]: 3. The applicants commenced these proceedings in the Tribunal on 8 July 2022 seeking the sum of $340,000 pursuant to a policy of insurance (the Policy) issued by the respondent in accordance with the provisions of the Home Building Act 1989 (NSW) (HBA). 4. The respondent is a statutory body representing the Crown in right of NSW, constituted by s 4 of the NSW Self Insurance Corporation Act 2004 (NSW). 5. The sum of $340,000 is the limit of cover pursuant to the Policy. 6. The applicants attached points of claim to their application which alleged: (1) That the applicants had entered into a building contract with Matrix Group Co Pty Ltd (Matrix). (2) That Matrix had commenced building pursuant to the contract on 2 November 2016. (3) That on 30 August 2017 the applicants and Matrix had entered into a variation which involved further contract terms: (i) Matrix and the applicants would share the cost of completing any rectification work equally, (ii) that the time for practical completion of the building works be extended to 31 October 2017 (which date was subsequently extended to 22 December 2017). (4) That on 30 December 2017 the applicants had issued a breach notice under the contract. (5) That Matrix suspended work on 5 February 2018. (6) That the applicants terminated the contract on 22 February 2018. (7) That the works performed by Matrix pursuant to the contract were defective in breach of the implied statutory warranties arising under s 18B of the HBA. (8) That the respondent had issued a contract of Homeowners Warranty Insurance with respect to the works the subject of the contract between the applicants and Matrix on 24 November 2017. (9) That the period of cover under the insurance contract in respect of non-structural defects expired on 5 February 2020. (10) That the period of cover in respect of structural defects will expire on 5 February 2024. (11) That on 6 November 2019 the applicants lodged a claim with the respondent under the contract of insurance and that the applicant provided further documentation on 19 November 2019. (12) That the respondent "will be deemed to refuse a claim if a determination is not made within 90 days after the claim is made, subject to any agreement by the Applicants to extend such time for determination." (I note that in fact clause 5.3(c) of the Policy provided that the respondent was deemed to have accepted liability for the claim if written notice of a decision in relation to the claim was not given to the applicants within 90 days of the applicants lodging the claim or such further time as may be agreed between the parties.) (13) That extensions were granted on 3 February, 21 March and 14 April 2022, pursuant to which the time for the respondent to notify a decision in relation to the claim was extended to 30 June 2022. (14) That on 23 June 2022 the respondent sought a further extension of time for the determination of the claim to 31 August 2022. (15) That on 24 June 2022 the applicants refused to grant any further extension. (16) That on 29 June 2022 the respondent denied the claim. 7. Regulation 49 of the Home Building Regulation 2014 (NSW), as in force on 8 July 2022 provides: 49 Insurance appeals (1) An appeal against a decision of an insurer that is a building claim made under Part 3A of the Act or a claim under the Consumer Claims Act 1998 must be made not later than 45 days after written notice of the decision is given to the beneficiary. (2) Nothing in subclause (1) limits the time within which an appeal may be made if a claim is taken to have been refused because of the operation of clause 48 and written notice of a decision has not been given to the beneficiary. (3) However, an appeal may, with the leave of the Tribunal or court, be lodged with the principal registrar of the Tribunal or court after the end of the period referred to in subclause (1), if - (a) an application is made to the Tribunal or court for leave to lodge the appeal out of time, and (b) in the opinion of the Tribunal or court, there are special circumstances to grant leave, and (c) the Tribunal or court grants leave. (4) Without limiting the type of circumstances that may be considered special circumstances, the time taken for a decision to be reviewed by the insurer is a factor in determining special circumstances. … 12. On 6 September 2022 the respondent filed points of defence alleging: (1) That the notification of claim was out of time for any potential claim for loss or damage arising from non-completion of work; (2) That the supporting documents received from the applicants mixed claims for non-completion and claims for defective works; (3) That the applicants had engaged subsequent builders to attempt to rectify and/or complete the works and had not provided full details of the intervening works; (4) That inspection by the respondent has suggested that some of the intervening works had caused or contributed to the defects now complained of by the applicants. 13. The respondent did not admit that the applicants were entitled to the amount claimed and alleged that further investigation was required.
2. The Home building application seeks the following relief: 1. An Order that the Respondent pay the Applicants $340,000.00, or such other amount as the Tribunal determines. 2. Costs. 3. Such further or other order as the Tribunal deems fit.
3. The claim transferred to the District Court is a claim by the plaintiffs against the Insurer under the contract of insurance under the Home Building Act 1989 ("the Policy"). The question to be decided in the matter is whether the plaintiffs are entitled to a payment from the Insurer under the Policy.

The Proposed Statement of Claim

1. The 24 October 2024 draft SOC is the latest in a number of draft statements of claim produced by the plaintiffs. As I have said, the plaintiff seeks to add GBS and Hicksons as defendants.
2. The 24 October 2024 draft SOC seeks the following relief: 1. Damages for breach of Contract in the sum of $340,000 (Policy Coverage Sum), or such other amount as is reasonably determined. 2. Damages for loss consequential on breach of the Contract of Insurance. 3. Damages under s 12GF of the Australian Securities & Investments Commission Act 2001 (Cth). 4. Damages under s 236 of the Australian Consumer Law. 5. Interest under s 57 of the Insurance Contracts Act 1984 (Cth). 6. Interest. 7. Costs. 8. Interest on costs. 9. Such further or other Order as deemed fit.

The draft claim against the Insurer

1. The claim against the Insurer for breach of the contract of insurance is pleaded differently in the 24 October 2024 draft SOC from the pleading in the Points of Claim attached to the Home building application, but the claim remains a claim under the terms of the Policy. There is an additional claim based upon an allegation of a breach of a term implied into the Policy, being a "duty of good faith".
2. New claims against the Insurer are made under the Australian Securities & Investments Commission Act 2001 ('the ASIC Act') and under "section 3 of Schedule 2 to the Competition & Consumer Act 2010 (Cth) as in force as a law of the Commonwealth and in NSW, by reason of the Fair Trading Act 1987 (NSW), s 32" referred to as "the ACL". Schedule 2 of the Competition and Consumer Act 2010 (Cth) is The Australian Consumer Law. The allegations are allegations of unconscionable conduct on the part of the Insurer, both in the course of processing the plaintiffs' claim against the Policy and in the conduct of the defence of the proceedings when they were before NCAT.
3. In paragraph 82, the 24 October 2024 draft SOC says: 82. Further, the First Defendant engaged in an intentionally dilatory and obfuscatory system of conduct, or a pattern of behaviour, as hitherto pleaded at paragraph 59 - 79, 85, 90 and 92(a) herein, in respect of the Plaintiffs' claim that was, in all the circumstances, a. an action taken by it in the course of the supply of financial services, and or services, b. unconscientiously in derogation from societal norms of acceptable commercial behaviour by a captive insurer in the administration of a claim made on a policy of statutorily mandated safety net insurance concerning rectification of defects to real property, c. recklessly indifferent to a just, efficient and effective resolution of a genuine claim on the Contract for Insurance issued by a NSW State Government organisation charged with the responsibility of helping NSW homeowners to rectify incomplete or defective works by an insolvent builder or tradesperson, d. was unconscionable by reason, in particular, of the matters in s 12CC(a), (b), (d), (e), (f), (j) and (l) of the ASIC Act, and e. constituted a contravention of s 12CB of the ASIC Act and or/ s 21 of the ACL (the Claim conduct contravention).
4. These are entirely new claims against the Insurer, compared with the Home building application.
5. Paragraphs 59 - 79 of the 24 October 2024 draft SOC set out the alleged interactions between Mr Amirbeaggi and various people regarding the progress of the plaintiffs' claim. There is an allegation in paragraph 63 that, between December 2021 and June 2022, the Insurer and GBS made representations that the claim "was being progressed with expedition and would be paid in full". The particulars to that allegation refer to paragraphs 38 - 93 of an affidavit of Mr Amirbeaggi which was filed in NCAT on 10 July 2023. The content of those paragraphs of that affidavit do not appear to support the allegation as to the representation alleged, on a plain reading. In any event, reference to a document is not an adequate means of particularising an allegation when the document is not annexed. The reference is too broad in scope to support the allegation.
6. Paragraph 85 of the 24 October 2024 draft SOC asserts that the Points of Defence filed in NCAT: … made assertions that were obviously inaccurate, not supported by fact, did not engage with the real issues in dispute, misstated and misapplied the facts and the law, were demurrable and, served only to delay and obfuscate the claim further … There have, of course, been no findings to support these assertions. It is claimed that the filing of the Points of Defence constituted "unconscionable conduct" on the part of the Insurer "in the course of the supply of financial services" and that GBS and Hicksons "intentionally participated in and thereby possessed the knowledge of the essential facts of the contravention", "had the reasonable foreseeability of the consequences of the conduct the subject of the Claim conduct contravention as pleaded at paragraph 84 herein, and knew that there was a risk that such damage could be suffered by the Plaintiffs" and "as such was involved in the Claim conduct contravention as that expression is understood in s 12GF of the ASIC Act and s 236 of the ACL respectively".
7. It is alleged in paragraph 86 of the 24 October 2024 SOC that Hicksons "for and on behalf of the First Defendant" represented to the plaintiffs that, upon the provision of payment records for losses incurred by the plaintiffs, "full payment pursuant to the Claim would be made". It is alleged in paragraph 87 that Mr Porman, an employee of Hicksons, made a comment to the effect that "he understood the Claim to be close to resolution and settlement". It is alleged in paragraph 88 that Hicksons, on behalf of the Insurer, made a settlement offer in writing offering a sum "substantially less than the maximum coverage" provided for in the Policy. In paragraph 89, it is alleged that these representations and the settlement offer each constitutes unconscionable conduct in the course of the supply of financial services, on the part of the Insurer, in contravention of s 12CB of the ASIC Act and/or s 21 of the ACL.
8. It is alleged again in paragraph 90 of the 24 October 2024 SOC that the settlement offer made on 7 November 2022 by the Insurer for an amount less than the maximum coverage under the contract of insurance constituted unconscionable conduct by the Insurer "in the course of the supply of financial services". It is further alleged that Hicksons was "involved" in the "Claim conduct contravention as that expression is understood in s 12GF of the ASIC Act and s 236 of the ACL respectively". It is further alleged that this conduct was "a further good faith breach".
9. It is alleged in paragraphs 91 and 92(a) of the 24 October 2024 draft SOC that there was a further instance of unconscionable conduct on the part of the Insurer in opposing the removal of this matter from NCAT to the District Court "in the dilatory and obfuscatory system of conduct or pattern of behaviour constituting the Claim conduct contravention". GBS and Hicksons are accused of participating in this alleged conduct in similar terms to paragraph 85.
10. The allegation in those paragraphs that "participation" in the Insurer's dealings with the claim and the proceedings means that GBS or Hicksons "thereby, possessed the knowledge of the essential facts of the contravention", "had the reasonable foreseeability of the consequences of the conduct" and "knew that there was a risk that such damage could be suffered by the Plaintiffs" is never particularised, and the material facts which must underly such allegations have not been provided.

The draft claim against GBS

1. It is pleaded in [4] of the 24 October 2024 draft SOC that GBS was "at all material times": a. a corporation registered under the Corporations Act 2001 (Cth) and able to be sued in its corporate name and style, b. appointed as the representative of the First Defendant to assess and manage the Claim (as that term is defined herein) and oversee and manage the conduct of the Third Defendant in the management and any litigation of the Claim (claims management), and c. by reason of the undertaking the claims management pleaded in paragraph 4(b) herein directly and intentionally participated in and accordingly, possessed the knowledge of the essential facts of the subject of the Claim conduct contraventions as defined at paragraph 82 herein and thereby was a "person involved" in the Claim conduct contraventions, of the First Defendant under the ACL and the ASIC Act. [sic]
2. No particulars or material facts are given as to the alleged appointment of GBS by the Insurer. The scope of GBS's authority as "the representative of the First Defendant to assess and manage the Claim" is not specified and no material facts are given in relation to it.
3. It is alleged in paragraph 63 of the 24 October 2024 draft SOC that the Insurer and GBS made the representations complained of. Again, the affidavit referred to by way of particulars, being Mr Amirbeaggi's affidavit of 10 July 2023, filed in NCAT, does not support the allegations on a plain reading.
4. Paragraphs 85 and 92(a) make allegations against GBS, purportedly as a participant in the Insurer's alleged unconscionable conduct under s 12CC(a), (b), (d), (e), (f), (j) and (l) of the ASIC Act and s 12CB of the ASIC Act and/or s 21 of the ACL.

The draft claim against Hicksons

1. It is pleaded in [5] of the 24 October 2024 draft SOC that Hicksons was "at all material times": a. a legal practice conducted by a partnership under ABN 58 215 418 381, b. appointed as the legal representative and agent of the First Defendant and or the Second Defendant in these Proceedings as they have been constituted from time to time (variously in the New South Wales Civil and Administrative Tribunal (NCAT) and, upon transfer to this Court, in this Court, and in proceedings before the Supreme Court of New South Wales), and c. is fixed with the knowledge of Mr Paul Hendriks and or their employee Mr Todd Porman. Particulars Partnership Act 1892 (NSW) ss 5, 9, and 12 d. is liable for the acts of Mr Paul Hendriks and or their employee Mr Todd Porman, and e. directly and intentionally participated in and accordingly, possessed the knowledge of the essential facts of the subject of the Claim conduct contraventions as defined at paragraph 82 herein, and was a "person involved" as that phrase it understood under s 761F(1)(b) of the Corporations Act 2001, in the Claim conduct contraventions, as defined at paragraph 82 herein, of the First Defendant and or Second Defendant under the ACL and the ASIC Act.
2. The allegation that Hicksons was appointed as the "legal representative and agent of the First Defendant and or the Second Defendant" is not underpinned by any material facts or particulars. The scope of any instructions or any agency agreement is not given.
3. Hicksons is alleged to have been "involved" in the unconscionable conduct alleged against the Insurer, set out above. Again, the material facts as to the scope of Hicksons' authority are not provided.

Principles applicable to the application to amend the claim

1. The Court has power to grant leave to a party to amend any document in the proceedings at any stage of the proceedings (see s 64 Civil Procedure Act 2005).
2. The Civil Procedure Act 2005 provides, in s 64(3): (3) An order under this section may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings but, in that case, the date of commencement of the proceedings, in relation to that cause of action, is, subject to section 65, taken to be the date on which the amendment is made.
3. The UCPR states, in r 19.2: 19.2 Amendments to add or remove parties (1) Subject to subrules (2) and (3), the amendments that may be made under rule 19.1 include an amendment that would have the effect of adding a party to, or removing a party from, the proceedings. (2) An amendment that would have the effect of adding a person as a plaintiff in proceedings in which a solicitor is acting for the current plaintiff may not be made unless, at the time the amendment is made, the same solicitor - (a) is acting for the person to be added, and (b) certifies on the amended document - (i) that he or she is acting for the person to be added, and (ii) that the person to be added consents to being added as a plaintiff. (3) An amendment that would have the effect of removing a party from the proceedings may not be made unless that party consents to being removed from the proceedings. (4) If a person is added as a party under this rule, the date of commencement of the proceedings in relation to that person is taken to be the date on which the amended document is filed.
4. In Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 ('Aon') the High Court set out the approach to be taken to applications to amend pleadings in the wake of the implementation of modern case management principles. The plurality said, at [96] - [100]: 96. An important aspect of the approach taken by the plurality in J L Holdings was that it proceeded upon an assumption that a party should be permitted to amend to raise an arguable issue subject to the payment of costs occasioned by the amendment[164]. So stated it suggests that a party has something approaching a right to an amendment. That is not the case. The "right" spoken of in Cropper v Smith needs to be understood in the context of that case and the Rule, which required amendment to permit the determination of a matter already in issue. It is more accurate to say that parties have the right to invoke the jurisdiction and the powers of the court in order to seek a resolution of their dispute[165]. Subject to any rights to amend without leave given to the parties by the rules of court, the question of further amendment of a party's claim is dependent upon the exercise of the court's discretionary power. 97. The objectives of case management are now expressly stated in r 21 of the Court Procedures Rules. It cannot be overlooked that later rules, such as r 21, are likely to have been written with the decision in J L Holdings in mind[166]. The purposes stated in r 21 cannot be ignored. The Court Procedures Rules make plain that the Rules are to be applied having regard to the stated objectives of the timely disposal of the proceedings at an affordable cost. There can be no doubt about the importance of those matters in litigation in the courts of the Australian Capital Territory. 98. Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a "just resolution" is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule's reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs. 99. In the past it has more readily been assumed that an order for the costs occasioned by the amendment would overcome injustice to the amending party's opponent. In Cropper v Smith Bowen LJ described an order for costs as a panacea that heals all[167]. Such a view may largely explain the decision of this Court in Shannon v Lee Chun[168], which upheld a decision allowing the plaintiff to raise a new case at the second trial, but which imposed a condition as to costs. The modern view is that even an order for indemnity costs may not always undo the prejudice a party suffers by late amendment[169]. In the present case it is difficult to see that such an order could be sufficient compensation, given that Aon would be required to again defend litigation which was, effectively, to be commenced afresh. 100. The views expressed by Lord Griffiths in Ketteman v Hansel Properties Ltd[170], that justice cannot always be measured in money and that a judge is entitled to weigh in the balance the strain the litigation imposes upon litigants, are also now generally accepted[171]. In Bomanite Pty Ltd v Slatex Corp Aust[172] French J said of Bowen LJ's statements in Cropper v Smith: "... That may well have been so at one time, but it is no longer true today ... Non-compensable inconvenience and stress on individuals are significant elements of modern litigation. Costs recoverable even on an indemnity basis will not compensate for time lost and duplication incurred where litigation is delayed or corrective orders necessary."
5. The Court Procedure Rules 2006 (ACT), in rule 21, expressed similar objectives to the objectives set out in the Civil Procedure Act 2005 (NSW), though in different terms.
6. The Civil Procedure Act 2005 (NSW) provides, in s 56(1), (2) and (3): 56 Overriding purpose (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. (3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.

Consideration of the application to amend the claim

1. These proceedings were commenced in NCAT on 8 July 2022. The claim in the proceedings is a claim against a single defendant, the Insurer, regarding the question of whether the plaintiffs are entitled to a payment from the Insurer under an insurance policy ("the Policy"). It is a discrete claim.
2. The 24 October 2024 draft SOC seeks to add a further two defendants to the proceedings, one being, allegedly, a claims manager "appointed by the First Defendant to assess and manage the claim", and one being the partners of Hicksons at a particular point in time, Hicksons being the solicitors for the Insurer and, allegedly, the agent for the Insurer.
3. The 24 October 2024 draft SOC alleges breaches of the ASIC Act and breaches of the ACL against the Insurer on account of "unconscionable conduct" in the processing of the claim and the conduct of this litigation. It alleges "participation" in those alleged breaches on the part of GBS and Hicksons.
4. In the NCAT decision, SM Robertson dealt with an application to amend the Points of Claim which, although different from the 24 October 2024 draft SOC, also sought to add claims under the ACL against the Insurer and two new defendants. SM Robinson said, at [94]: 94. …the initial application filed by the applicants raised only the question whether the respondent correctly rejected the applicants' claim under the Policy. That question will be determined by reference to the terms of the Policy and the evidence tendered by the parties concerning the building contract with Matrix and Matrix's performance of that contract. The Tribunal hearing an appeal against the decision of an insurer in respect of a cover contract under the HBA "determines the appeal on the basis of a re-hearing of the insurance claim.": Hawli v NSW Self Insurance Corporation [2017] NSWCATCD 38 at [56]. 95. The conduct of the insurer during the process of assessment of the claim is irrelevant to that determination. The outcome of the appeal will be relevant to the consideration of the applicants' claims under the ACL or the general law but only as a fact which may (or may not) affect the assessment whether the respondent engaged in unconscionable or misleading and deceptive conduct. 96. Of the five representations pleaded by the applicants in the Proposed Amended Points of Claim, only the representation pleaded in paragraph 78.2 (that is the alleged representation that the claim would be paid in full) could be said to hinge in any way upon the ultimate determination of the applicants' claim under the Policy. The remaining representations relate entirely to the respondent's process of assessment. 97. The alleged representation that the claim would be paid in full might be construed as a statement of the respondent's intention at the time the representation was made. The ultimate resolution of the claim could have no bearing on whether or not that representation was made or, if made, was misleading or deceptive. To the extent the alleged representation constituted a representation as to the future, the provisions of s 4 of the ACL (which is pleaded in the Proposed Amended Points of Claim) would have the effect that the representation will be taken to be misleading unless the respondent had reasonable grounds for making the representation. Again, the determination of that question will be not be dependent upon the ultimate outcome of the applicants' appeal against the rejection of their claim. 98. For the foregoing reasons I am not persuaded that there would be any risk of inconsistent factual findings if the applicants' claim under the Policy were determined in the Tribunal and the claims under the ACL and the general law were determined in separate proceedings elsewhere.
5. Not surprisingly, this reasoning applies to the present application. Were the amendment to be made to the Statement of Claim, none of the evidence or argument with respect to the additional claims under the ASIC Act or the ACL in relation to the Insurer or the two new defendants would be relevant to the case as it presently stands.
6. The amendment would have the effect of making GBS a party to a multi-faceted action in circumstances where it had an interest in the outcome of only a small part of that action. This would have costs implications for GBS which could not be adequately addressed by an order for costs.
7. The amendment would have the effect of making Hicksons a party to a multi-faceted action in circumstances where it was acting as the solicitor for a defendant to that action. The 24 October 2024 draft SOC raises allegations about the conduct of the Insurer and GBS in the processing of the claim under the Policy and the conduct of all three defendants in dealing with this action to date whilst it was before NCAT. Hicksons is alleged, on an unspecified basis, to be the agent for both the Insurer and GBS, and the scope of those alleged arrangements is not identified or defined. Were the 24 October 2024 draft SOC to be filed, issues regarding legal professional privilege would clearly arise as the parties prepared their cases. The resolution of these issues would consume time and costs. Issues regarding offers made on a "without prejudice" basis may also arise, with the further potential to consume time and costs. Even if it ceased to act for the Insurer and GBS (if, indeed, it has ever acted for GBS in relation to the events the subject of these proceedings), Hicksons would have obligations as a solicitor, having acted for a party to the action with respect to the subject matter of the action, which would be in conflict with its interests as a party. This would place Hicksons in an untenable position.
8. The 24 October 2024 draft SOC has many defects. In general, many of the new allegations made against the Insurer, GBS and Hicksons are not particularised and are unsupported by material facts. When "particulars" are given, they are often given by way of general reference to a document (such as an affidavit or an email) which is not annexed to the 24 October 2024 draft SOC, which is not an acceptable way of particularising an allegation.
9. In his written submissions of 14 October 2024, Mr Weinberger set out twenty instances of defects in the pleadings, including many instances where the precise meaning of the paragraphs of the 23 October 2024 draft SOC cannot be ascertained on a plain reading. I will not set these out in full. I agree with all of the criticisms that Mr Weinberger made of the drafting of the 24 October 2024 draft SOC, both in his submissions and in oral submissions at the hearing.
10. Ms Nolan submitted that the second and third defendants named in the 24 October 2024 draft SOC could be joined under UPCR r 6.24. I reject this submission. It is not necessary to join either GBS or Hicksons to the proceedings for the determination of the matters presently in dispute in the proceedings. The Court has power under r 19 to add a party to proceedings. That power is discretionary (see Aon). Ms Nolan made extensive oral submissions and provided written submissions also. I have taken all of her submissions into account. None of those submissions has persuaded me that the plaintiffs' application should be granted.
11. The 24 October 2024 draft SOC seeks to add claims against GBS and Hicksons which rely upon events which post-date the filing of these proceedings in NCAT. The claims which the plaintiffs seek to add are different in nature from the claim as it is currently pleaded. The existing claim does not require any consideration of the conduct of the parties; it requires only the consideration of the plaintiffs' claim against the Policy. Adding the new claims to the existing proceedings would be most unjust to Hicksons, because it would place Hicksons in a position of conflict of duty and interest. It would put both GBS and Hicksons at risk of incurring much greater legal costs than the institution of fresh proceedings with respect to the ASIC claims and the ACL claims is likely to do, on account of the potential preliminary arguments as to legal professional privilege and offers without prejudice, among other things. It would significantly delay the progress of the claim presently on foot. For all of these reasons, it would not "facilitate the just, quick and cheap resolution of the real issues in the proceedings".
12. In saying that, I am not to be understood to be saying that the new claims in the 24 October 2024 draft SOC are necessarily viable claims under the Policy, the ASIC Act or the ACL. The claims as presently set out in the 24 October 2024 draft SOC rely on interpretations of the relevant provisions of the Policy, the ASIC Act and the ACL which are contestable. Provisions which may be relevant to these claims, such as s 12CB(2) of the ASIC Act and s 21(2) of the ACL, have not been addressed in the 24 October 2024 draft SOC. I have made no determination as to the merits of the new claims.
13. The application for leave to file the 24 October 2024 draft SOC will be dismissed.

Orders

1. The following orders will issue: 1. The plaintiffs' application in the Notice of Motion filed on 28 May 2024 is dismissed. 2. The plaintiffs are to pay the defendant's costs of the application, to be agreed or assessed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 February 2025