Australian National University v Lendlease Construction Pty Ltd [2026] ACTSC 72

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: Australian National University v Lendlease Construction Pty Ltd Citation: [2026] ACTSC 72 Hearing Dates: 12, 19 March 2026 Decision Date: 24 March 2026 Before: Mossop J Decision: (1) The parties are to provide agreed or competing minutes of the orders to be made to give effect to these reasons and any amendment to the existing timetable by 4pm on Thursday, 26 March 2026. (2) Unless orders are made by consent in chambers, the proceedings are listed for the making of orders at 4pm on Friday, 27 March 2026. Catchwords: PRACTICE AND PROCEDURE – PLEADINGS – Where reply to defence was alleged to introduce new issues – where plaintiff filed reply in accordance with the Court Procedures Rules 2006 (ACT) – where neither the rules of pleading nor of proper case management require further identification of plaintiff’s case – held plaintiff was entitled to file its reply and there is no basis upon which the court should strike out that reply or make any other order arising from the filing of that reply PRACTICE AND PROCEDURE – PLEADINGS – Defendant application for leave to file further amended statement of claim against third party – where amendment would expand case late in proceedings – where granting leave would have significant case management consequences – where vacating trial date would be inappropriate – held leave should not be granted insofar as it expands the case Legislation Cited: Court Procedures Rules 2006 (ACT), rr 480, 482(3), 491(3) Cases Cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175 Queensland v JL Holdings Pty Ltd [1997] HCA 1; 189 CLR 146 White v Overland [2001] FCA 1333 Parties: The Australian National University (Plaintiff) Lendlease Construction Pty Ltd (Defendant) DECC Pty Ltd (First Third Party) Cardno (NSW/ACT) Pty Ltd (Second Third Party) Representation: Counsel J Gurr KC with W Thomas (Plaintiff) D Miller SC with T Marskell (Defendant) J Neal (First Third Party) H Chiu SC with J Larkings (Second Third Party) Solicitors Meridian Lawyers (Plaintiff) Lander & Rogers (Defendant) Barry Nilsson (First Third Party) Clyde & Co (Second Third Party) File Number: SC 269 of 2023 MOSSOP J: Introduction

1. In these proceedings, the Australian National University (ANU) seeks damages from Lendlease Construction Pty Ltd (Lendlease) arising out of flood damage that occurred during the construction of the new Union Court area at ANU in 2018. Lendlease has made claims against two third parties: DECC Pty Ltd (DECC), which was responsible for earthmoving, and Cardno (NSW/ACT) Pty Ltd (Cardno), a company which provided engineering services to Lendlease.

2. The proceedings are listed for a final hearing before me commencing on 4 May 2026 with an estimate of 20 days. Two pleading issues have been argued before me. Those issues were first identified in any crystallised form on 5 March 2026. Given the need to resolve the issues promptly in light of the upcoming hearing date, they were then heard over two days outside sitting hours whilst I was hearing a criminal trial.

3. In the order that they were argued, the issues were: (a) an issue raised by Lendlease as to whether or not ANU was entitled to rely upon a Reply which had been filed; and (b) Cardno’s objection to any grant of leave by the court to Lendlease to file a proposed Amended Third Party Notice and Further Amended Statement of Claim for the purposes of that Amended Third Party Notice.

4. For the reasons that follow: (a) in relation to the first issue, ANU was entitled to file its Reply and there is no basis upon which the court should strike out that Reply or make any other order arising from the filing of that Reply; and (b) in relation to the second issue, Lendlease should not be granted leave to file its Further Amended Statement of Claim for the purposes of its Amended Third Party Notice to Cardno insofar as it includes those parts which have been objected to by Cardno.

The issue between Lendlease and ANU: the Reply issue

The filing of the Reply

5. On 4 February 2026, ANU was granted leave to file a Further Amended Statement of Claim subject to the provision of certain additional particulars. Lendlease was required to file and serve its Defence to the Further Amended Statement of Claim by 16 February 2026. No specific order was made in relation to the filing of a reply by ANU. However, r 480 of the Court Procedures Rules 2006 (ACT) permitted ANU to file a reply to the Defence and it did so on 5 March 2026. (The sequence of the filing of Lendlease’s Defence to the Further Amended Statement of Claim and ANU’s Reply is confusing. ANU appears to have filed its Reply (on 5 March 2026) in response to a served but not filed version of the Defence and hence filed it prior to the filing of the Defence (on 10 March 2026). No party contended that ANU’s Reply was served outside the time permitted by the Rules and hence no party contended that a grant of leave was necessary for it to be filed.)

The issues raised by Lendlease

6. The issue raised by Lendlease arises from paragraph 1C of the Reply which is responsive to paragraph 6.5 of the Defence. Lendlease contended that the issue raised by ANU is a new one and sought to have ANU clarify its case, and most likely would then seek to amend its third party claim against Cardno (in a manner which is additional to the amendments sought to be made which are dealt with later in these reasons). ANU contended that its pleading in the Reply is simply responsive to the allegations in the Defence and does not involve any change of ANU’s case, and that it is not required to answer the questions that Lendlease seeks to have it answer.

7. Lendlease did not file any application in relation to ANU’s Reply or in relation to seeking orders to compel ANU to answer the further questions that it posed or to make further admissions. Having regard to the conclusion that I have reached, it is not necessary to address the procedural question as to the basis on which Lendlease sought any orders.

Factual and pleading background

8. In order to understand why ANU’s position is correct, it is necessary to provide a brief summary of one aspect of the pleadings to date.

9. The case relates to a flood that occurred on 25 February 2018 during the construction associated with the redevelopment at what is known as the Union Court at the centre of ANU. Sullivans Creek, a well-known watercourse that runs through much of North Canberra, runs generally north to south through the ANU campus and down the western side of the Union Court area. There is a bridge over Sullivans Creek on the western side of the Union Court area which was to remain in place as part of the redevelopment. As this is part of University Avenue, the central spine of ANU, it is referred to as the University Avenue Bridge. During the construction, the embankment on the eastern side of Sullivans Creek was reduced in height as part of the construction process. Unfortunately, during the period when the embankment was so reduced, there was a rainfall event which led to a rise in the level of Sullivans Creek and the construction site and some of the surrounding buildings were flooded, causing damage.

10. A significant issue in the case will be the level of flood protection that was required to be maintained during the course of the redevelopment. The pleadings and expert evidence in the case have focused upon what is referred to as the 1% annual exceedance probability (1% AEP). An employee of Cardno provided some calculations relevant to the fixing of appropriate building in ground surface design levels for the final redevelopment on 6 September 2017. This will be referred to as the Cardno Report. That was done by reference to the 1% AEP. There was a reference in the Cardno Report to providing above the 1% AEP “a freeboard of at least 500 mm” to “accommodate the possible increase in flood level due to climate change increased rainfall”. The 1% AEP translated into a particular level measured by reference to the Australian Height Datum (the AHD). The level of the 1% AEP as calculated in the Cardno Report was different at various points down Sullivans Creek. Relevantly, immediately above the University Avenue Bridge it was 561.77 m AHD and immediately below the University Avenue Bridge it was 560.8 m AHD. The existing embankment prior to the construction works was somewhat higher than those levels. The extent of flood protection contractually required from Lendlease can be thought of as being equivalent to a particular embankment level. Some of the levels asserted to be required in the Further Amended Statement of Claim filed on 5 February 2026 include: (a) the pre-existing embankment level; and (b) the level equivalent to 1% AEP plus 500 mm for the purposes of accommodating climate change.

11. The parties have obtained substantial expert evidence going to both what level corresponds to the 1% AEP and the level of the water during the flood in February 2018.

12. Lendlease’s Defence filed on 10 March 2026 includes what is referred to as the non-causal breach argument. That is a contention that the February 2018 flood was so high that even if Lendlease had met the contractual standard required of it, the flooding and damage would have occurred in any event. In other words, even if there was a breach of contract, that breach did not cause the damage.

Consideration of Lendlease’s first question

19. Lendlease contends that ANU should be required to identify whether it says that Lendlease was not entitled to rely upon the Cardno Report for the purposes of the project. In other words, does ANU accept that the Cardno Report was determined with skill, care, and diligence to meet the standard of Industry Best Practice, the formulation describing the contractual standard? Lendlease says that, if ANU does not say that, then it would wish to amend its Third Party Notice to Cardno in order to make a claim against Cardno on the basis that the levels reached by Cardno were wrong.

20. So far as this issue is concerned, neither the rules of pleading nor of proper case management require further identification of ANU’s case. Since its Amended Statement of Claim on 12 March 2024, it has asserted that the 1% AEP immediately downstream of the University Avenue Bridge was a figure substantially higher than that identified in the Cardno Report (561.5 m AHD rather than 560.8 m AHD). Lendlease has, in its Defence to the Further Amended Statement of Claim, positively asserted for the first time that the 1% AEP is that identified in the Cardno Report as distinct from the level pleaded by ANU. In its Reply, ANU has, in elaboration of its denial of that fact, pleaded the facts relied upon so as to avoid any surprise at trial. Its position is entirely orthodox and consistent with the rules of pleading.

21. The question that Lendlease wishes to have answered really relates to its pleading at [6.6], that it was open to rely upon the Cardno Report in order to meet the contractual standard. As pointed out earlier, issue has been joined in relation to that contention. It raises a question of law or a question of mixed fact and law which will need to be answered at trial. Given that issue has been joined, the pleaded answer to the question posed by Lendlease is that ANU says that it was not entitled to rely upon the Cardno Report in order to meet the contractual standard. There does not appear to be any proper basis for compelling ANU to say more than it has by reason of its implied joinder of issue. That is the end of that issue.

22. Insofar as it might be relevant, that obviously leaves Lendlease in a position where there is uncertainty as to whether its defence in paragraph 6.5 will be successful. Senior counsel for Lendlease said that in those circumstances “I’m going to have to pass it down to Cardno out of abundant caution”. In circumstances where, since March 2024, ANU’s allegation has been that the 1% AEP immediately downstream of the University Avenue Bridge has been 561.5 m AHD, a figure very obviously different to that identified in the Cardno Report, Lendlease has had plenty of opportunity, if it wished, to attempt to “pass down” any liability arising from that difference to Cardno but did not do so.

Consideration of Lendlease’s second question

23. The second question that Lendlease wishes to have answered is whether ANU contended that, if the level of protection had been 561.5 m AHD, water would still have entered the various buildings and flooded to the same depths. This is a question relevant to Lendlease’s non-causal breach argument. It exists in a context where ANU has pleaded a variety of alternative contractual standards for the height of the Sullivans Creek embankment and where there is a variety of expert opinion as to the precise height of the floodwaters in February 2018.

24. Lendlease has issued a notice to admit facts in relation to this issue. ANU has indicated it will respond to that notice. Even recognising the limited consequences of a notice to admit facts (see r 491(3)), I do not consider that Lendlease’s desire to have this question answered, and hence limit the issues put in dispute for the purposes of the trial, provides any basis for limiting the terms of ANU’s Reply or for directing that it must make admissions about issues identified by Lendlease outside the process of pleading. In short, it is entitled to leave the issue in contention.

25. In his submissions, senior counsel for Lendlease made reference to the decision of Allsop J in White v Overland [2001] FCA 1333 at [4], in which passage his Honour said “Any practice of quietly leaving footprints in correspondence or directions hearings to be uncovered some time later in an attempt to reveal that a matter was always in issue should be discouraged firmly”. I do not consider that those remarks have any application in the present case. While the case is obviously one in which there are a multitude of issues to be resolved at trial, the pleadings properly identify the position taken by ANU. There is no proper basis for compelling further admissions to be made. The issue between Lendlease and Cardno: the expanded claim issue

The issue

26. The issue between Lendlease and Cardno is whether or not Lendlease should be granted leave, at this stage of the proceedings, to file the Further Amended Statement of Claim for its Third Party Notice to Cardno, which contains certain paragraphs to which Cardno objects.

27. There are or have been proposed three versions of the Statement of Claim for the purposes of third party proceedings against Cardno and DECC: (a) the Statement of Claim filed on 20 September 2023; (b) the Amended Statement of Claim filed on 16 August 2024; and (c) the Proposed Further Amended Statement of Claim.

28. In order to distinguish them from ANU’s Statements of Claim, they will be referred to with the prefix TP, for example, TP Amended Statement of Claim.

The position of the parties

29. The essential point made by Cardno was that the TP Further Amended Statement of Claim would involve a substantial expansion of the case against Cardno and that it would not be possible for Cardno to fairly respond to that expanded case within the time prior to the existing hearing date. Therefore, it contended that leave should be refused in relation to the expanded case. If leave was granted, then that would require the vacation of the hearing date. Both DECC and ANU wished to maintain the hearing date. Lendlease contended that if the expanded case was permitted then it could fairly be addressed by the parties in the period up until the commencement of the trial.

The competing evidence as to the consequences of the amendment

30. Obviously, the submissions involve a factual question as to what would be involved, so far as Cardno is concerned, in addressing the expanded case and how long that would take. On this issue, there were competing affidavits. Steven Lurie, a solicitor acting for Cardno, provided a detailed affidavit dated 3 March 2026 as to the steps that would be required to be taken in order to address the expanded case. Colleen Palmkvist, a solicitor acting for Lendlease, provided a detailed affidavit dated 10 March 2026 addressing the steps that she said would be required and responding to the evidence given by Mr Lurie. Neither of the solicitors were required for cross-examination. One of the principal differences between the evidence the two affidavits is the extent to which Cardno would be required to reinterrogate the database of its own documents (2,485,629 documents) or require further discovery as distinct from some further interrogation of the database already created as a result of the existing process of discovery. That existing database involved categories of documents qualified by searches using identified keywords that had, thankfully, been agreed by the parties at a much earlier stage of the proceedings. That process resulted in discovery by all parties of 366,142 documents.

The nature of the amendments

31. There was ultimately not a great deal of dispute about the nature of the amendments sought to be made. The more significant issue was the consequences of those amendments for the conduct of the proceedings.

32. The existing case brought by Lendlease against Cardno arises from Cardno’s original report dated 6 September 2017, referred to earlier, which gave the 1% AEP flood levels for Sullivans Creek.

33. So far as that Cardno Report and certain Cardno drawings issued on 18 October 2017 are concerned, Lendlease contended that they should have had certain warnings specified upon them. Those warnings were: (a) that levels during the construction works should not be reduced below 1% AEP level; (b) that a barrier or bund should be constructed along Sullivans Creek to maintain those levels; and (c) that a freeboard of 500 mm should be installed above those levels.

34. Understandably, the evidence put on by Cardno has been focused upon those issues.

35. The proposed TP Further Amended Statement of Claim relates to conduct that it is alleged Cardno should have taken between October 2017 and February 2018. It would allege that Cardno became aware that Lendlease had made a design change to the wall adjacent to the embankment along Sullivans Creek, deleting what was referred to as a shoring pile wall and replacing it with a Dincel wall. It would allege that having become aware of that design change Cardno should have: (a) identified that the design change created a flood risk that would persist during the construction phase of the project; (b) made enquiries as to whether Lendlease consultants or subcontractors had considered and addressed that flood risk; (c) conducted inspections of the works to reveal that they were not being constructed in accordance with the original Cardno drawings; and (d) identified measures to be implemented to address the flood risk during the construction phase.

36. These changes appear to arise out of a report of one of Lendlease’s experts, Mark Lincoln, whose report in reply was served on 1 February 2026. This was a report served in reply to the evidence put on by Cardno and DECC.

History of service of evidence

37. Lendlease completed service of liability evidence with the service of Mr Lincoln’s report on 1 November 2024.

38. DECC and Cardno then served their liability evidence, with the last expert report being dated 21 July 2025.

39. The report in reply of Mr Lincoln was dated 1 February 2026. There is a separate issue as to whether Lendlease should be permitted to rely upon part of the report given its late service. That issue is returned to below.

The broader issues raised by DECC and Cardno’s evidence

40. The evidence served by DECC and Cardno raised matters relevant to their defence to Lendlease’s claim for damages that under their respective contracts they were not liable for damages which arose from Lendlease’s own negligence. The relevant provisions were clause 13.3(c)(i) of the contract with DECC and clause 4.2 of the contract with Cardno. These clauses were in different terms to each other. Whether or not those two clauses have the claimed effect is a matter in issue which will need to be determined at the trial. For present purposes, it is only necessary to accept, as the parties do, that the contention is an arguable one. Therefore, so far as Cardno was concerned, notwithstanding the narrow scope of the claim against it, it was open to it to defeat or reduce Lendlease’s claim by proving that Lendlease had been negligent by reference to a full range of conduct during the construction phase of the project relevant to the damage that resulted.

41. Notwithstanding the service of Cardno and DECC’s liability evidence in July 2025, Lendlease contends that now is its only opportunity to respond to the evidence put on by DECC and Cardno relating to Lendlease’s own negligence. The submission was that to fail to allow the proposed TP Further Amended Statement of Claim “would have the effect of denying Lendlease the opportunity to go into evidence on the very issues … that were raised by Cardno, introduced into these proceedings by Cardno, and where those issues first arose through the evidence of Cardno and DECC in the period from November 2024 at 2 July 2025”.

Lendlease’s contentions about its proposed amendments

42. The claim articulated by Lendlease against Cardno in its TP Statement of Claim filed on 20 September 2023 was a general, and potentially broad, claim that Cardno had failed to advise that the level of the embankment should not be reduced below those levels alleged at paragraph 6 of ANU’s Statement of Claim at any time and that a freeboard of at least 500 mm should have been installed at all times. That pleading was unconfined as to time.

43. The TP Amended Statement of Claim filed on 16 August 2024 had the effect of confining the claim because it was amended to say that “Cardno failed to advise or specify by way of the Cardno Report and/or the Drawings” various things. This pleading had the effect of confining the claim to one of advice or specification in the Cardno Report and/or the Drawings issued on 18 October 2017. It was that pleading which formed the basis of the regime for discovery put in place by orders of the court on 4 November 2024, a process which continued through to April 2025, the service of lay and expert evidence by Lendlease and the third parties, and the making of the orders in June 2025 for the purposes of the hearing commencing in May 2026.

44. Lendlease accepted that its current pleadings do not clearly advance a case which extends beyond the “Cardno Report and/or the Drawings”, being the drawings issued on 18 October 2017. It advanced some submissions to the effect that, had a comma been included after the words “failed to advise” at [19] of its TP Amended Statement of Claim, then the claim would have potentially been a much broader one. But there was no comma. Junior counsel for Lendlease accepted that the confined interpretation of the scope of the allegations against Cardno was one which was reasonably open and did not assert that the response to the claim should have been based upon some inference of a broader case.

45. Lendlease contended that the position adopted on behalf of Cardno in relation to the current allegations is to the effect that the actions alleged to have been required were not part of their contracted scope of work and would only have been undertaken on the basis of a separate fee proposal and after being informed by Lendlease of its construction methodology and sequencing. Lendlease therefore contended that, having regard to the evidence put on by Cardno, it could have no defence to the new claim as it has already taken the position that such additional works were not part of its contractual obligations.

Should the amendment be permitted?

46. Generally speaking, it is appropriate to permit parties to articulate the claims that they wish to in proceedings. That entitlement may be restricted where parties have had a fair opportunity to articulate the case that they wish to make, and the granting of leave would interfere with the orderly preparation of the case for trial, particularly so if it would result in the vacation of the hearing date. Obviously, all cases are fact specific and the incantation of generally worded propositions without attention to particular circumstances is not useful.

47. In the present case, the proceedings are substantial and complex. The parties referred to the claim as being for $60 million. The parties are represented by their insurers. Following a directions hearing on 16 June 2025, on 18 June 2025, the proceedings were listed for a 20-day hearing commencing on 4 May 2026.

48. There is a timetable in place which requires a multitude of pre-trial steps to be taken, including expert conclaves prior to 6 March 2026 and joint reports by 19 March 2026. There is a timetable for objections to evidence which operates between 27 March 2026 and 10 April 2026.

49. Notice was given in general terms of the desire to amend the third party pleading on 23 December 2025.

50. The report in reply of Mr Lincoln dated 1 February 2026 (a Sunday) was served by email on that day.

51. The potential for an objection to the reliance upon the report in reply of Mr Lincoln and to the filing of the foreshadowed amended third party pleading was first raised before the court on 4 February 2026, although at that stage Cardno had not received the proposed pleading.

52. It was only on 20 February 2026 that the proposed TP Further Amended Statement of Claim was served and it was only served in marked up form as required by the Rules on 24 February 2026.

53. On 5 March 2026, directions were made for the purposes of a contest over the pleadings. Argument on the objection occurred on 12 and 19 March 2026.

54. Lendlease emphasised that the case was one between insurers. While that is relevant to the extent to which it indicates that the underlying insured are not dependent upon the outcome of the proceedings, insurers and their clients are entitled to orderly case management. Court resources are still required to be deployed effectively. There remains a public interest in having disputes resolved in a reasonable time and at as low a cost as their orderly conduct can achieve. The stress and strain of litigation still remains, particularly so where the clients or their staff or former staff will be required to participate in the proceedings as more than nominal parties.

55. Lendlease took pains in its submissions to distinguish the present circumstances from those in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175, submitting that the circumstances in which it found itself were simply a result of the evolution of the pleadings and issues raised by Cardno and DECC in their defences and expert evidence. In my view, analogies to the particular facts of AON are not particularly significant. It is the general principles that are, particularly the departure from the approach articulated in Queensland v JL Holdings Pty Ltd [1997] HCA 1; 189 CLR 146.

Separate issue regarding Mr Lincoln’s report of 1 February 2026

63. There is a separate issue raised as to the grant of leave to Lendlease to rely upon expert evidence served after 3 October 2025. This arises from the terms of order 2 made on 16 December 2025 and an application in proceeding filed by Lendlease on 21 January 2026. Cardno, in its written submissions, advanced what appeared to be a separate objection to a number of paragraphs of Mr Lincoln’s report on the basis of late service. The issue was not separately addressed in oral submissions, it appearing to be subordinate to the more significant pleading issue. If, following my decision on the pleading point, this remains contentious, then I will deal with it separately.

Conclusion

64. For the reasons given, no further orders are required in relation to ANU’s Reply. Further, Lendlease will not be given leave to file its TP Further Amended Statement of Claim in its present form, but it should be given leave to file those parts which are not objectionable. In determining what parts of the TP Further Amended Statement of Claim should be permitted to be filed, there appears to be some difference between those paragraphs that were objected to by Cardno in its written submissions and those which were articulated in oral submissions. I will give counsel for Cardno the opportunity to articulate again the objected to paragraphs so as to permit an order to be made which allows an amended pleading to be filed but without the problematic paragraphs.

65. Having regard to the outcome of the current arguments, Lendlease should pay the costs of the hearings on 12 and 19 March 2026. Otherwise, the consequences of any amendment can be dealt with by the Rules.

66. In summary: (a) Lendlease will be refused leave to file its proposed amended third party pleading in its current form; (b) Lendlease will be given leave to file an amended third party pleading which avoids the expansion of its claim against Cardno; (c) any further and separate objection to the ability of Lendlease to rely upon the report of Mr Lincoln will be separately addressed; and (d) Lendlease is to pay the costs of the hearings on 12 and 19 March 2026.

Orders

67. The orders of the Court are: (1) The parties are to provide agreed or competing minutes of the orders to be made to give effect to these reasons and any amendment to the existing timetable by 4pm on Thursday, 26 March 2026. (2) Unless orders are made by consent in chambers, the proceedings are listed for the making of orders at 4pm on Friday, 27 March 2026.

I certify that the preceding sixty-seven [67] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: