Holzer v Homes Victoria [2026] VCC 472

1. The principles relevant to an application of this kind are well known and were not in dispute.
2. Rule 36.01 of the County Court Civil Procedure Rules 2018 relevantly provides:

(a) determining the real question in controversy between the parties to any proceeding; or

(b) correcting any defect or error in any proceeding; or

the Court may, at any stage, order that any document in the proceeding be amended or that any party have leave to amend any document in the proceeding. [emphasis added]

1. In Aon Risk Services Australia Limited v Australian National University,[1] the High Court considered the factors relevant in an application for leave to amend. In particular, Gummow, Hayne, Crennan, Kiefel and Bell JJ stated:[2]

"111. An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. ...

1. A party has a right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate." [emphasis added]
2. I respectfully adopt the summary of the relevant factors set out by Vickery J in Namberry Craft Pty Ltd v Watson[3] ("the Big Kahuna" case) as follows:

"... there are to be limits placed upon re-pleading. The High Court in Aon referred to a range of other considerations which need to be weighed in the balance in the exercise of the discretion to grant an amendment to a pleading. The High Court made reference to the following factors:

(a) Whether there will be substantial delay caused by the amendment;

(b) The extent of wasted costs that will be incurred;

(c) Whether there is an irreparable element of unfair prejudice caused by the amendment, arising, for example, by inconvenience and stress caused to individuals or inordinate pressures placed upon corporations, which cannot be adequately compensated for, whatever costs may be awarded;

(d) Concerns of case management arising from the stage in the proceeding when the amendment is sought, including the fact that the time of the court is a publicly funded resource, and whether the grant of the amendment will result in inefficiencies arising from the vacation or adjournment of trials;

(e) Whether the grant of the amendment will lessen public confidence in the judicial system; and

(f) Whether a satisfactory explanation has been given for seeking the amendment at the stage when it is sought."

1. In Matthews v SPI Electricity Pty Ltd (Ruling No 6),[4] J Forrest J noted that the above list of factors was not exhaustive. An additional factor was that an amendment would not be allowed if it were so obviously futile that it would be liable to be struck out if it appeared in an original pleading.
2. The Court is mindful of what the interests of justice dictate and the obligations imposed on the parties and the Court under the Civil Procedure Act 2010 (Vic) ('CPA').
3. It's trite to say that the Court is obliged to and must give effect to the overarching purpose to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute in the exercise of any of its powers.[5]
4. The Court has to have regard to the specified objects and matters set out in s9 of the Act and has to balance a competing number of considerations to give effect to the main purpose of the CPA.
5. Pursuant to s9(1) of the CPA the Court must have regard to the following objects:
   • the just determination of the civil proceeding;
   • the public interest in the early settlement of disputes by agreement between the parties;
   • the conduct of the business of the Court;
   • the efficient use of judicial and administrative resources;
   • the minimising of any delay between the commencement of a trial and the listing for trial beyond what is reasonably required for any interlocutory steps that are necessary for, and this is important, the just and fair determination of the real issues in dispute; and the preparation of the case for trial.
   • the Court has regard to the timely determination of a civil proceeding and to deal with a civil proceeding in a manner proportionate to the complexity or importance of the issues in dispute and the amount in dispute.
   • the amount in dispute was not addressed but I have, for the purpose of this Ruling, assumed that it is not an insignificant amount.
6. The matters I have just mentioned are matters that the Court must have regard to. The Court may have regard to the following matters under s9(2):
   • the extent to which parties have complied with any mandatory or voluntary pre‑litigation processes,
   • the extent to which the parties have used reasonable endeavours to resolve the dispute by agreement or to limit the issues in dispute.
   • this matter was subject to a mediation on 26 March 2026. The parties attended that mediation based on the information that was provided and exchanged and the pleadings as they then stood.
   • the degree of promptness with which the parties have conducted the proceeding, including the degree to which each party has been timely in undertaking interlocutory steps in relation to the proceeding. the degree to which any lack of promptness by a party in undertaking the proceeding has arisen from circumstances beyond the control of that party.
7. In this case the content of the Defence was within the control of the defendant and outside of the control of the plaintiff.

1. It was critical to the defence of the proceeding argue that to had a proper system of cleaning and maintenance which had been delegated to contractors.
2. It was said that the defendant's solicitor considered that the defendant would be able to led evidence regarding the delegation and contractual arrangements despite the fact that this had not been pleaded in the original Defence.

1. The defendant's explanation was not satisfactory.
2. The plaintiff would suffer prejudice if the amendments were allowed including the question of whether additional defendants should be joined to the proceeding.
3. If the amendments were allowed the plaintiff's case, as currently pleaded, could not proceed in April 2026 and would necessitate an adjournment
4. By reference to the factors mentioned in the Big Kahuna case, it was said that the plaintiff would suffer stress and inconvenience if the amendment was allowed.
5. No evidence regarding the alleged stress and inconvenience was presented to the Court. I am not satisfied that any such stress or inconvenience is sufficient to deny the amendments sought.

1. I am troubled by the defendant's explanation that it was expected that the defendant could lead evidence regarding delegation in the absence of pleadings.
2. The explanation proffered is particularly concerning given the comments made in JR Lynch in the matter of Dzeladin v Homes Victoria (Ruling)[6].
3. I am not satisfied that a satisfactory explanation has been provided by the defendant.
4. Despite this, I am not prepared to shut the defendant out from pleading an arguable defence.
5. The exercise of my discretion requires me to balance the competing interests of the parties and those of the administration of justice more generally.[7]
6. The ultimate question in determining such an application is what the justice of the case requires.
7. Having conducted the balancing exercise required of me, I find that it is in the interests of justice to allow the proposed amendment.
8. In the circumstances, the case cannot currently proceed.

1. The parties are requested to prepare orders consistent with this ruling prior to 24 April 2026 including costs orders and any further timetabling orders.
2. If the parties are unable to agree on the form of orders, the court will make a further ruling on 27 April 2026.

[3] [2011] VSC 136 at paragraph [38] (footnotes omitted)

[4] [2012] VSC 70 at paragraph [33]

[5] Section 8 CPA .

[7] Northern Health v Kuipers [2015] VSCA 172