Plaintiff v Defendants

[2025] VSC 576

Supreme Court of Victoria|2025-09-12|Before: FORBES J

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At a glance

Source facts

Court

Supreme Court of Victoria

Decision date

2025-09-12

Before

FORBES J

Source

Original judgment source is linked above.

Judgment (36 paragraphs)

[1]

For the reasons that follow, I am not persuaded that the third parties have demonstrated that the defendant's claims against them have no real prospect of success.
DOMA Group has not yet filed a defence. It has made a forensic decision to rely upon Mr Powderly's evidence which does not explain the basis upon which he was authorised to provide the affidavit on behalf of DOMA Group. As a result it has not provided any evidence from a director or person with direct knowledge of the relevant matters concerning the roles of related companies in the DOMA group in the Development.
Insofar as DOMA Group relies on Mr Powderly's evidence, his affidavits contradict the instructions given to its lawyers as communicated in correspondence prior to issuing its summons for summary dismissal. Notably:

[2]

(a) Although Mr Powderly states that DOMA Group had no involvement in the Development on instructions, DOMA Group asserts that it had a 'limited involvement' as a joint venture partner developing a masterplan. This is repeated in the First Third Party's submissions that DOMA Group was 'only involved in the design of the masterplan'.

(b) Mr Powderly states that DOMA Constructions was a joint venture partner with Volt Lane Pty Ltd and responsible for construction of the ATO building, and that the joint venture engaged BLOC to construct the ATO building and related works although DOMA Group instructions are that it was a joint venture partner.

[3]

I appreciate that the question of construction of the ATO is not itself a matter directly bearing on the responsibility for construction of the pedestrian surface in another area of the Development. However, the discrepancy in the evidence about the role of the First Third Party and its related entity in the Development demonstrates that the evidence as to roles and responsibilities of DOMA Group in the Development is not presently a matter that could be said to be clear and beyond controversy.
Further, and perhaps critically, the affidavit evidence of Mr Powderly and Mr Sky is contradictory as to responsibility for the concrete pedestrian surface in area B. Mr Powderly contends that it formed part of the internal works contract between Volt Lane and JS Consulting. He does so on the basis that drawing A200.1. That document is relied on to demonstrate that Area B, as an unshaded area, was not completed as part of the work undertaken by Walsh Earthmoving. Contrary to Mr Powderly's affidavit, a number of documents do identify Area B as falling within the external works contract. These include the Budget areas schedule which incorporates Area B as part of Budget area D, as does Schedule 11.
To the contrary, Mr Sky deposes positively that BLOC supervised the laying of concrete pavers in Area B as part of the external works contract, and that this was completed by November 2012. He relies on the landscape finishes document dated 2 May 2012 as marked up. This appears to be a document created to seek further information as part of the tender process for the external works contract. If so it could not be evidence of what was actually done once that contract was awarded and signed. The tender addendum notes that as a result of the marked up documents, including those provided by Oculus, that 'DOMA will be issuing an updated set of civil drawings on ...8/5/2012'. In any event, the landscape finishes document pre-dates the actual work and therefore is not a reliable basis for Mr Sky's evidence that the laying of pavers in Area B actually occurred and was supervised by BLOC. Mr Sky, as it transpired in the hearing, was not in the role of commercial manager as at 2012, and indeed it is not even clear on the evidence that he was engaged by BLOC in any capacity at the relevant time. His affidavit is unsatisfactory as to the basis of his information and belief beyond his review of Mr Powderly's affidavit and his review of other undisclosed documents. Apart from these contradictions, it is not clear to me that that the grey shaded area in A200.1 necessarily correlates to work under the external works contract as Mr Powderly contends. The legend for A200.1 is that areas shaded grey refers to 'Stage 1 Works completed'. Stage 1 Works is not defined in the evidence.
'Stage 1 Works' completed on other architectural drawings such as drawing A213 have differently marked areas as 'Stage 1 Works completed'. An extract of drawing A213 is set out here with Area B shaded in blue.[54]

[4]

The shaded areas in drawing 200.1 and drawing A231 bear no correlation to the external works contract and in particular the budget area landscape plan and Schedule 11 both of which include Area B. Drawing A213, shows Area C but not area B as being finished with a honed concrete slab. It also references landscape architects documentation for 'external paving details'. Any documentary inconsistency is amplified by the contradictory affidavit evidence of the Third Parties as to completion of the surface of Area B. Mr Sky's reliance of A200 to demonstrate that pavers were laid is not evidence of what was actually done. It is evidence of what was intended as at [date of plan] only. None of the documentary evidence to which I was taken confirms a requirement to lay polished concrete in Area B. Nor is there is a document that has been produced to demonstrate that polished concrete was the intended finish to area B.
Whilst the present information does not implicate DOMA Group as a party to either the external works contract nor the internal works contract, its role in the construction of the market precinct, even to the extent of an 'involvement in developing a masterplan' is somewhat opaque. None of the joint venture documents that delineate DOMA Group's role in the Development are before the Court.
While the DOMA Group evidence does not describe what is meant by a masterplan, it could be inferred that this as the overall plan for the Development as produced by the architects. Its role in co-ordinating and engaging contractors and providing the relevant construction plans for those tenders is unclear. Documents incorporated into the external works contract such as the May and Russell drawings, identify DOMA Group as the contractor, the Tender Addendum is sent out on DOMA Group letterhead (although signed by DOMA Constructions) and indicates that the civil and landscaping tender would be assessed by a committee 'formed with representatives from DOMA, the Albury City Council, and Volt Lane'. The external works contract, although to be signed by DOMA Constructions, is intended to be signed by them as agent. The agency is variously described as for Volt Lane Pty Ltd as trustee, and elsewhere in the document as agent for Albury JV Pty Ltd.[55] What has been put in evidence as to the external works contract is version 1 dated 16 February 2012 of a proposed contract, is unexecuted, and predates the conclusion of the tender process. It's status as a binding contractual document is open to question. While DOMA Group is not party to the signed internal works contract, the names of four persons associated with DOMA Group appears on the distribution list. 'DOMA Group' generally is described as Contractor on documents incorporated into the contract.[56]
No doubt the corporate structure of the 'DOMA Group' differentiates related corporate entities. What is unexplained by the evidence is the division of responsibility in the Development of entities within the group. As such the extent of involvement by DOMA Group in the contractual arrangements for construction of the relevant aspect of the Development is not clear. The information provided by DOMA Group as to relevant contracts prior to the issue of its summary dismissal application did not make mention of a contract between its related entity DOMA Constructions and Walsh Earthmoving. [57]
I have already addressed the evidence of Mr Sky. On the basis that BLOC supervised aspects of the external works contract including the laying of the surface of Area B, an arguable cause of action is demonstrated giving rise to a factual dispute as to what was in fact done and in what circumstances. As I have outlined, the present documentary and affidavit evidence does not put that question beyond doubt.
The submission that the internal works contract provides for laying polished concrete in Area B is not borne out by the documents incorporated into that contract. A213 expressly contradicts that proposition. Neither third party can point to a document at present that clearly identifies what surface was laid in Area B, when and by whom.
Even if I am wrong about the prospects of success of the defendant in its third party claims, I hold the view that under s 64 of the Civil Procedure Act, it would not be in the interests of justice to summarily dismiss the claim without affording the defendant an opportunity to conduct a hearing on the merits after filing of third party defences, full discovery and interrogation.
As to the alternative relief seeking striking out the third party statement of claim, I do not propose to strike out the present pleading. It is apparent that the defendant's claim may well require repleading upon consideration of the documents that have come to light in the course of these applications. The existing pleading was prepared based upon the documents available to the defendant through an informal request for information and an incomplete subpoena process. The defendant identifies a wider claim against the third parties than being a party to the relevant contract to construct. In relation to BLOC the admitted role in construction is a supervisory one. In relation to DOMA Group the role in construction as a joint venture partner and related entity to a builder of some parts of the Development is likely to require refinement. Any application to amend the pleading by the defendant ought be made following engagement by the third parties with the defendant about pleading deficiencies that have been first raised in the course of this application.
In the circumstances the applications for summary dismissal and the alternative relief of striking out the current pleadings will be dismissed.