Erector Group Consolidated Pty Ltd v Construction Forestry Mining & Energy... [2026] NSWSC 555 | Case summary

Erector Group Consolidated Pty Ltd v Construction Forestry Mining & Energy... [2026] NSWSC 555 | Case summary | Zoe

On 17 March 2025 the plaintiff, Erector Group Consolidated (“EGC”), a company that performed plastering, gyprocking and internal fit outs, sued the defendants alleging that in March and April 2019 they coerced payments from it, under the guise of recouped wage underpayments, superannuation contributions, and union membership fees. The first defendant is the NSW Branch of the Construction Forestry Mining and Energy Union (“CFMEU”). The second defendant is a superannuation fund, United Super Pty Ltd as Trustee for the Construction and Building Unions Superannuation Fund (“United”).
EGC alleges that at the time the coerced payments were made, it was engaged in valuable contracts and building projects known as Lachlan’s Line Project, Newmarket Project, and the Bathurst Street Project. EGC alleges that representatives of the CFMEU entered those sites on 12 March 2019 and threatened to continue work stoppages unless monies were paid, purportedly to recoup underpaid wages and superannuation and union members fees. EGC also alleges that personal threats were made against EGC’s director and his family.
EGC alleges that those payments it made to the CFMEU totalled $1,474,581.00 a proportion of which was union fees. Separately and additionally, it alleges that United demanded it be paid superannuation contributions from the individuals the subject of the alleged recouped wage underpayments, knowing that there was no legitimate basis for those payments to be made, and under threat that if they did not pay, United would tell the CFMEU.
EGC seeks recovery of that money as loss and damage caused by the Tort of Intimidation or alternatively damages for contravention of s 50 of the Competition and Consumer Act 2010 (Cth), Sch 2 - Australian Consumer Law (“the Australian Consumer Law”), as conduct comprising harassment and coercion.
Separate defences were filed by both United and by the CFMEU on 5 December 2025.
Despite extensive requests for particulars and discussion between the parties narrowing some of the areas for debate, unresolved issues remain regarding those pleadings.
By notice of motion filed on 19 December 2025, United seeks the strike out of pars 7(c), 8, 90 and 114(e) of the amended statement of claim.
By notice of motion filed on 18 March 2026, EGC seeks strike out of a confined number of paragraphs of United’s defence and the strike out of large parts of the CFMEU’s defence, as well as default judgment against the CFMEU.

Those principles provide only the most general guidance for the specific circumstances pleaded here. Reliance on the bald statement that a party is only obliged to supply the best particulars it can, and is allowed to supplement those particulars after discovery, has circumscribed application in this case where illicit conduct has been alleged based on what was allegedly said and done to EGC by certain persons.
Mr Moses submitted that there is no obligation to plead things that the other party knows. He submitted that United’s obligations under the Civil Procedure Act requires it to investigate the allegations and then file evidence of their inquiries if they are unable to plead in response. I doubt United’s obligations go that far.
Reliance was placed on the comments of the Court at [35] in Murphy v Victoria (2014) 45 VR 119; [2014] VSCA 238. This was a case concerning misleading and deceptive conduct. Refusal on the part of the defendant to provide documents led to an incomplete pleading. In those circumstances the Court felt it would be unfair to confine the plaintiff’s case without giving him access to the government’s internal documents. That case is confined to its facts.
Reliance was also placed on the statements of Simpson J in Ag-Exports (Australia) Pty Ltd v Export Finance and Insurance Group [2006] NSWSC 467 at [26] and [31]. In my opinion her Honour’s comments in those paragraphs do not assist EGC and actually illustrate that in cases of fraud and deceit, nomination of an individual engaged in the impugned conduct is usually necessary – albeit in that case, proceedings were at a later stage than they are here.
I have decided that the objections taken by United are valid. Reliance on general principles of pleading that have been articulated in cases not concerned with specific pleadings of fraud, collusion, coercion and quasi-criminal conduct, are of limited assistance to the debate here, and of little direct application. It cannot be procedurally fair to make wide allegations of fraud and misconduct, and effectively require the opponent’s servants and agents to offer up some kind of confession in a vacuum to conduct that might meet what is being vaguely asserted, alluded to, or implied.
EGC alleges that unambiguous demands and threats were made and it acted on those demands and threats to its detriment. Absolute clarity as to who, what and when relevant things were said and done by United ought to be provided. Paragraphs 7(c) and 8 are impermissibly vague and are struck out.
This part of the amended statement of claim is followed by a narrative of the contracts and subcontracts at the different Projects and Works and some alleged actions of the CFMEU in August 2018 in relation to EGC’s involvement on the Bathurst Street Works. There is then pleading of the alleged work stoppages. The CFMEU’s alleged coercive conduct in March 2019 is set out at pars 47 to 84. At pars 68 and 82 the plaintiff alleges that there were “False Wage Schedules” created by the CFMEU, and, implicitly, that these formed the wages underpinning the superannuation amounts paid to United referred to in par 89.

Ms Roughley submitted that the pleading in par 90 is vague in its attribution of coercive conduct. It does not adequately identify the “threat” that is referred to in the first line, and by whom it was made or when, and how any representative or agents of United made that “threat”, or how the “threat” arises from the facts pleaded. There is no clarity as to how the “threat” was communicated, or from what words it should or could be implied, or whom from United is alleged to be involved in that conduct, or in what way. Given the seriousness of the allegation, it is essential these aspects be clearly and specifically pleaded. It remains unstated how or why the “implied threat” referred to in the “particulars” of par 90 would operate to link it with the March 2019 threats made by the CFMEU. The paragraph implies collusion between CFMEU and United, but does not plead the facts that would allow that serious allegation to be made.
Further and better particulars were requested focused on obtaining clarity as to what was meant by par 90. In response to the question: “Is it alleged that United made an implied threat?”, the answer given was: “Yes”. In response to the question: “Is it alleged the CFMEU made an implied threat?”, the answer given was: “No”. In response to the question: “What words were used?”, no answer at all was given. The question was dodged with: “This is a matter for evidence”.
The pleading in par 90 implies, but does not specify, that United made a threat or implied, by something it did or said, that the “12 March 2019 Threats” that the CFMEU made would become manifest. This is a very serious allegation on two fronts. First, that a representative (or representatives) of a superannuation fund were (somehow) signalling a joint coercion or collusion with the CFMEU and second, that it knew about the very serious 12 March 2019 Threats that were made, and were prepared to make themselves an accessory, at the least, to criminal conduct of the kind set out in par 48 of the amended statement of claim.
Mr Moses submitted that the particulars provided by letter make it clear that EGC does not allege that United “was involved in” the 12 March 2019 Threats. He submitted further that given the Australian Consumer Law refers to the concept of “directly or indirectly knowingly concerned”, it is legitimate to plead the conduct in the way EGC has at par 90, as all that is being alleged is relevant knowledge.
Ms Roughley submitted in reply that par 90 must be viewed against the allegation in par 107 of the amended statement of claim that both the CFMEU and United engaged in conduct comprising the Tort of Intimidation. To that extent primary wrongdoing is alleged. If par 90 is truly limited to knowledge only of CFMEU’s threats, that is what it should say.
I accept Ms Roughley’s submissions. The pleading is too vague, confusing and unclear as to what is being alleged. For such a serious allegation, the specific act(s) that support it need to be clearly identified and pleaded. They are not. Paragraph 90 is struck out, with leave to replead.

This paragraph gives the illusion of being specific. It is not. First, it provides no information in response about other persons named and in par 4 of the statement of claim, Patricia Hamson, Mikel Dacko, Adrian Carroll or Yu Lei Zhou. Second, it leaves open the question of whether the CFMEU is stating none of the acts pleaded in the statement of claim were done for or by the CFMEU, (although this is, perhaps, the effect of par 3), or whether some or all of them were done as agents/employees of the Federal Union, or whether all acts, or some, were outside the course of employment and or ostensible authority of the CFMEU and the Federal Union. Referencing “joint employment” does nothing but cloud the issue. Paragraph 3 does little if anything to clear it up.
It emerged at the hearing that what that pleading was meant to indicate was that nothing those persons did that is referred to in the statement of claim was done in their role with the CFMEU, but that everything that was done was done as agent or employee of the Federal Union.
Mr Cheshire said in oral argument that when par 2 is read with par 3 of the defence, which repeats par 2 and denies the allegations in par 5 of the amended statement of claim, the position is clear.
Paragraphs 2 and 3 of the defence read together does not come remotely close to making the position clear.
No explanation was able to be offered by Mr Cheshire as to why the CFMEU lawyers did not clearly state – by letter or in the pleadings – “You have the wrong defendant”. It was expected, apparently, that the CFMEU’s lawyers understood that was the effect of the pleading in pars 2 and 3. It remained unclear from anything Mr Moses said as to whether that was the understanding or not, but he certainly complains about the repercussions of that pleading in the general denials made in the defence.
Either way, the vague pleading in par 2 is unacceptable and has infected the whole defence. It means that any unelaborated denial of a pleaded fact could have been denied because the person or action referred to was not done as agent of the CFMEU, or it could be a signalling that the act was not within the scope of that person’s role at the CFMEU, or it could be because the CFMEU’s position is that the act(s) pleaded did not occur, or did not occur as alleged. These distinctions are obviously important.
Mr Cheshire conceded that his client should replead par 2, but he did not concede that the various general denials throughout the defence were in any way problematic. That position was difficult to maintain given that many of those paragraphs in issue back-referenced pars 2 and 3.
Mr Cheshire dealt with the objections in categories. Category 1 comprised those paragraphs of the defence that were asserted not to properly traverse the allegations. Paragraph 6 of the defence refers to pars 21 to 24 of the amended statement of claim in which EGC outlined various dealings between itself and the CFMEU.
EGC complained that because of pars 2 and 3 of the defence, par 6 does not engage with the material facts, and so the pleading should be struck out. I agree.
Mr Cheshire’s reliance on the old English case of Pinson v Lloyds and National Provincial Foreign Bank L**imited [1941] 2 KB 72 (“Pinson”) and Hoxton Park Residents Action Group Inc v Liverpool City Council [2012] NSWSC 1026 does not assist his client’s position. Pinson draws a distinction between a “mere traverse” and a pleading that “though negative in form, the negative is pregnant with an affirmative, in which case particulars of that affirmative must be given”. Such arcane language tends to obscure rather than elucidate. It is one thing to “put the plaintiff to proof” of its case. It is quite another to fail to make clear which asserted fact is being denied because of the structure of the defence, so avoiding revelation of what is being denied, not admitted or positively alleged in response to what allegation.
The problem with pars 2 and 3 of the defence affects pars 6, 8, 10(c), 12, 13(b), 13(c), 14, 15, 17, 18, 19, 20, 22, 26, 29, 31, 34, 38, 39, 43, 44 and 45, all of which are struck out with leave to replead.
Category 2 objections were identified as complaint about erroneous or unintelligible cross-references. EGC say that because of the approach taken, distinct allegations about the Bathurst Street Project are not addressed in the defence at all. Paragraph 15 of the defence denies pars 38 to 46 of the amended statement of claim and repeats pars 2 and 3 of the defence. This is inadequate and is struck out. Given the specificity of allegations in those paragraphs, each of pars 38 to 46 should be the subject of a separate response.
Category 3 complains of “inconsistent or incoherent denials and non-admissions”. The complaint is focused on the uncertainty created by the pleaded response to par 52 of the amended statement of claim by par 18(a) of the defence, and par 20 in response to pars 54 to 58 of the amended statement of claim. I accept the effect is incoherent because it is infected by the pars 2 and 3 problem and so those paragraphs of the defence are struck out.
Category 4 deals with an asserted failure to particularise positive allegations in respect of “sham contracting”. This appears to be a misunderstanding of the CFMEU’s pleading which is a reference to a defined situation in the Enterprise Agreement, rather than a pleading that EGC has engaged in a fraud by way of contract(s) that is/are a sham. Paragraphs 21, 23, 27, 32 and 35 are not objectionable and I decline to strike out those paragraphs. The defence pleading adequately joins issue. It is a matter for EGC to prove whether its state of mind in engaging staff that way was a mistake or something else.
Category 5 is identified by EGC as a failure to particularise positive allegations regarding work stoppages. EGC complains that pars 24(a)(ii), 24(b) and 24(c)(ii) are “ambitious, vague and in some respects unintelligible”. I disagree. This is an example of the CFMEU being able to plead only what it knows. Why the main contractor(s) decided to do what it/(they) did at Ganellen, Newmarket and Bathurst Street is a matter known to each main contractor. CFMEU’s defence is sufficient in the circumstances. For the same reason, EGC’s arguments also fail on pars 11(e), 16(f), 28, 33 and 36.
Category 6 complains about failure to particularise positive allegations about payments to the Federal Union. EGC argued that the denial in par 41 of the defence obscures the extent to which the CFMEU denies the allegations EGC makes against it in pars 92 to 94. I disagree. The response is sufficient. No more is required. To require more is descending into evidence, rather than facts. This is an example of what Mr Cheshire argued was EGC requiring that the CFMEU explain why they deny certain things – that is that there is an obligation to set out the factual basis for the denial. I agree with Mr Cheshire’s submission that there is no such obligation.
Category 7 complains of incomplete responses in par 37 of the defence. Paragraph 37 is affected by the pars 2 and 3 inadequacy and is struck out on that basis and will need to be repleaded.
Category 8 complains of “unexplained non-admissions” – par 40 of the defence. Paragraph 40 is in response to pars 87 to 91 of the amended statement of claim that deals mainly with allegations directed to United, not the CFMEU. Paragraph 91 does address an event at which a representative of the CFMEU, Mr Zhou, was alleged to be present. I reject EGC’s argument that the “basis” for not admitting the facts in these paragraphs needs to be stated. That goes further than what is required for a pleading in response to the facts there alleged.
The following paragraphs of the CFMEU’s defence are struck out, with leave to replead: 2, 3, 6, 8, 10(c), 12, 13(b), 13(c), 14, 15, 17, 18, 19, 20, 22, 26, 29, 31, 34, 37, 38, 39, 43, 44 and 45.
EGC’s arguments regarding the following paragraphs of the CFMEU’s defence fail: 11(e), 16(f), 21, 23, 24(a)(ii), 24(b), 24(c)(ii), 27, 28, 32, 33, 35, 36, 40 and 41.

EGC complained that the CFMEU’s defence filed on 5 December 2025 was not properly verified. CFMEU disputed that, calling to its aid UCPR r 35.3(1)(b) that provides that where a party is a corporation, and verification of a pleading is required, the affidavit can be made by a member or officer of the corporation.
The affidavit certifying the defence was made by the solicitor then on the record for the CFMEU, Ivan Simic. The affidavit makes no reference to the basis of swearing it being that he was a member or office-holder. He signed it as “solicitor for the first defendant” and provided his address as the address of the firm of Taylor & Scott Solicitors.
Mr Cheshire submitted that the affidavit was adequate, but to avoid argument, further verification was provided on 1 April 2026 by an affidavit of Mr Crosby sworn 31 March 2026. He had been appointed Executive Officer in June 2025.
Mr Moses complains that a letter from his instructing solicitors sent in late December 2025 was “ignored”, as was a follow up sent on 14 January 2026. There was no reply until late February 2026, and the reply only addressed particulars, not the affidavit issue.
To completely ignore issues raised in correspondence is never good practice. Whilst I understand sending letters on 22 December 2025 and 14 January 2026 in what is widely recognised as the Court vacation break is likely to lead to a delay in reply, there should at least have been an acknowledgement of the issue raised at some point in February 2026.
Mr Cheshire referred to the procedure that ought to have been followed when complaining about adequacy of verification. Uniform Civil Procedure Rules r 14.2(1) provides a 14 day period within which to raise any such issue. That 14 day period expired on 19 December 2025. EGC should have proceeded that way and has provided no explanation for failing to do so. Mr Cheshire submitted that in all the circumstances there should be no costs ordered against the CFMEU in respect of that part of the motion.
I agree. Although it was ill-advised by the then solicitor for the CFMEU to execute the affidavit, given the requirements to maintain professional independence and to avoid ending up a witness in the case, it does seem that an obvious path to remedy the situation was ignored by EGC. Little time was spent on this aspect of the motion. To the extent a costs order needs to be made in respect of that part of the motion, I order that each party bear its own costs in respect of that part of EGC’s motion. Seeking an order for default judgment, in circumstances where the parties are engaged in ongoing correspondence about particulars was, frankly, overkill in the circumstances. Further, the notice of motion was required to deal with the unresolved pleading issues involving CFMEU. It was this part of EGC’s motion that took up the majority of the time and effort of counsel and the Court.

Erector Group Consolidated Pty Ltd v Construction Forestry Mining & Energy Union (NSW Branch)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

JUDGMENT

The hearing

Relevant rules and principles

The statement of claim

(i) Paragraphs 7(c) and 8

(ii) Paragraph 90

(iii) Paragraph 114(e)

EGC’s notice of motion to strike out the CFMEU Defence

Plaintiff’s notice of motion re United’s defence

The CFMEU’s failure to adequately verify its December 2025 defence

Costs

Orders

Parties

Legislation Cited (8)

Cases Cited (17)