Plaintiffs v Defendants

1. Other than any application for the joinder of AIG or any other insurer of Probuild, any application by any existing party in the Probuild Proceeding or in the QIC Proceeding for the joinder of:

(a) the Geotechnical Engineers or either of them or for the joinder of any other person; or

(b) any third party notice for any existing party in the Proceedings against the Geotechnical Engineers or either of them or any other person,

must be filed and served by no later than 28 February 2025.

1. Any application that proceeding S ECI 2024 03985 be consolidated with or managed or heard and determined together with the Probuild Proceeding and the QIC Proceeding or either such proceeding, including any application to that effect in proceeding S ECI 2024 03985 must be filed and served by no later than 4:00pm on Friday, 28 February 2025.

1. Any party to either of the Proceedings which wishes to amend its pleading or any third party notice or notice of contribution in either of the Proceedings ('moving party') must file and serve any proposed amended pleading or notice on all parties affected by the proposed amendment by no later than 4:00pm on Friday, 27 June 2025.
2. Any affected party who objects to the proposed amended pleading or notice ('responding party') must notify the moving party of its objection and the grounds for such objection by no later than 4:00pm on Friday, 4 July 2025.
3. In the case of objection, by no later than 4:00pm on Friday, 18 July 2025 counsel retained for the moving party and for the responding party must confer in relation to the objection as specified in paragraph 8.1.2 of Practice Note SC CC1.
4. If following conferral the parties are unable to agree upon any proposed amendment, the parties must send a joint email to the Chambers of Stynes J seeking a determination of those aspects of any proposed amendments remaining in dispute.

1. By no later than 4:00pm on Tuesday, 1 July 2025 the Applicants (moving parties) must serve on all parties to the Proceedings:

(a) a list of the separate questions those parties contend should be the subject of a preliminary trial ('list of questions'); and

(b) a list of the witnesses, lay and expert, the Applicants anticipate will be required to give evidence at the preliminary trial ('witness list').

1. By no later than 4:00pm on Monday, 14 July 2025 any party who wishes to be heard on the adjourned hearing of the Staging Applications ('interested party') must serve on the moving parties and on all other parties that party's response to the list of questions and witness list.
2. By no later than 4:00pm on Friday, 25 July 2025 counsel retained for the moving parties and for each of the interested parties must confer in relation to the list of questions and the witness list, as specified in clause 8.1.2 of Practice Note SC CC1.
3. Participation by parties in the conferral is without prejudice to that party's right, should they wish to so contend, that no order should be made for a trial of separate questions.
4. Without the leave of Stynes J, no party shall be heard on the further hearing of the Staging Applications unless that party has by its counsel conferred in accordance with clause 8.1.2 of Practice Note SC CC1.
5. By no later than 4:00pm on Wednesday, 30 July 2025 the moving parties must file and serve on all parties to the Proceedings:

(a) a list of questions revised following the conferral process ('revised list of questions') in a schedule which clearly indicates questions which are agreed, and are opposed, and if opposed, by whom ('responding party');

(b) a witness list revised following the conferral process ('revised witness list') together with a draft trial plan for the conduct of the preliminary trial for which the moving parties contend, marked up to show any areas of disagreement and, in respect of those areas, specifying the party or parties who do not agree.

1. By no later than 4:00pm on Friday, 15 August 2025 the moving parties and the responding parties shall file and serve outlines of submissions in advance of the adjourned hearing of the Staging Applications:

(a) in a case of the moving parties, limited to 10 pages;

(b) in the case of each responding party who has participated in the conferral process, limited to 6 pages and limited as applicable to:

(1) the grounds on which that party contends no order should be made for a trial of separate questions;

(2) the revised list of questions to which that party maintains an objection; and

1. The plaintiffs' summons dated 20 August 2024 (including the Staging Application in the Probuild Proceeding) is adjourned for further hearing before Stynes J on 26 August 2025 at a time to be fixed on an estimate of one day.
2. If it is determined appropriate to hear the trial of separate questions pursuant to rule 47.04 of the Rules, provided that the subject matter of the preliminary trial concerns whether there are errors and defects in the structural design for the Stage 7 Works and whether the remedial works undertaken are reasonable and necessary, and the estimated duration of the preliminary trial is no more than 4 weeks in duration, then subject to further or other order, such trial:

(a) will commence on Monday, 10 November 2025 and sit for no more than 20 days (excluding Fridays);

(b) will be conducted in accordance with a trial plan, agreed between the parties or, in default of agreement, as determined at the adjourned hearing of the Staging Applications; and

(c) will be conducted on the basis that active participation in the preliminary trial will be limited to those parties who participated in the conferral leading to the revised list of questions and the revised witness list.

1. By 4:00pm on Monday, 18 November 2024 each party who has not already done so is to confirm in writing:

(a) the name of any building surveyor expert witness upon whose evidence it proposes to rely on the issue of the applicable standard for any assessment or rectification of any defects ('Building Surveyor Expert'); and

(b) the availability of that witness to participate in a conferral between the parties' nominated Building Surveyor Experts in the time period provided for below.

1. By 4:00pm on Monday, 25 November 2024 the parties are to confer and attempt to agree on:

(a) the questions they consider should be addressed by, and any instructions to be given to, the Building Surveyor Experts; and

(b) the documents they consider should be provided to the Building Surveyor Experts,

(c) the applicable standard that should have been applied to the Stage 7 Works; and

(d) the applicable standard for any assessment or rectification of any defects for the purpose of the Building Surveyor Second Conclave (as defined below).

1. To the extent a document that a party considers should be provided to the Building Surveyor Experts for the purposes of the previous order has not been disclosed, that party is to disclose the document to the other parties by 4:00pm on Monday, 25 November 2024.
2. If agreement concerning the matters set out above is not reached by 4:00pm on Monday, 25 November 2024 then:

(a) by 4:00pm on Monday, 9 December 2024 the parties are to file and serve written submissions in respect of any areas of disagreement;

(b) the Court will advise administratively as to its determination on the papers of any disagreement between the parties regarding the matters set out in Order 2 above; and

(c) the orders below are stayed pending determination by the Court of any disagreement referred to in these Orders.

1. If agreement concerning the matters set out above is reached by 4:00pm on Monday, 25 November 2024, then by 4:00pm on Monday, 2 December 2024 the plaintiffs are to provide to the Building Surveyor Experts:

(a) a document which sets out the questions and instructions the parties agree should be addressed by the Building Surveyor Experts for the purpose of the Building Surveyor Second Conclave (as defined below); and

(b) all the documents which the parties agree should be provided to the Building Surveyor Experts for the purpose of the Building Surveyor Second Conclave (as defined below), excluding any duplicate documents.

1. By 4:00pm on Monday, 16 December 2024 the Building Surveyor Experts are to confer, in the presence of Dr Manly, on the questions agreed by the parties and/or determined by the Court on the issue of the applicable standard:

(a) that should have been applied to the Stage 7 Works; and

(b) for any assessment or rectification of any defects, having regard to the instructions and documents provided to them pursuant to these Orders ('Building Surveyor Second Conclave').

1. By 4:00pm on Monday, 23 December 2024 the Building Surveyor Experts are to prepare a joint report containing their joint opinions (that is, identifying any issues upon which they agree), including reasoning, as to the matters the subject of the Building Surveyor Second Conclave ('Building Surveyor Second Conclave Report'). If the expert witnesses are unable to express a joint opinion on any matter, then the expert witnesses must describe the difference(s) between the experts' opinions and set out a summary of their respective reasons for disagreeing.
2. The Building Surveyor Second Conclave and the process of preparing the Building Surveyor Second Conclave Report are to be conducted in the absence of the parties and their legal representatives. Notwithstanding this, the expert witnesses may jointly request further information, documents or direction by letter signed by them directed to the practitioners for each of the parties and may receive such further information, documents or direction.
3. While the parties and their lawyers cannot talk to the experts during the course of the Building Surveyor Second Conclave, they are free to do so between each of the conclaves (that is, after each report is issued and prior to the commencement of the next conclave).
4. By 4:00pm on Monday, 24 February 2025 the parties are to file and serve any report of their Building Surveyor Expert(s) providing the expert's opinion and reasoning on any difference(s) of opinion identified in accordance with the previous orders ('Building Surveyor Individual Reports'). Each Building Surveyor Individual Report must contain an annexure that lists all documents referred to or relied upon by the expert.
5. The Building Surveyor Second Conclave Report and Building Surveyor Individual Reports must be released concurrently to the parties and filed by the plaintiffs within two business days of their release.
6. The plaintiffs are to provide the Building Surveyor Second Conclave Report and any Building Surveyor Individual Reports delivered pursuant to these Orders to the Structural Engineering Experts (as defined in order 14 of the Probuild 28 June Order, as varied) by 4:00pm on Wednesday, 26 February 2025.

1. By 4:00pm on Monday, 27 January 2025 the plaintiffs are to disclose to the parties in the Proceedings:

(a) any further documents relied upon by MPN in developing the structural design for Permanent Rectification Works design; and

(b) any further occupancy permits for the Permanent Rectification Works (defined in the statement of claim, as amended).

1. By 4:00pm on Monday, 3 February 2025 the plaintiffs are to provide to the Structural Engineering Experts the documents disclosed pursuant to these Orders.

Objections to documentary evidence relied upon by the experts

1. By 4:00pm on Monday, 17 February 2025 the parties to the Proceedings are to exchange lists of any objections taken to documents provided to:

(a) the Structural Engineering Experts pursuant to order 7 of the Orders dated 22 March 2024, order 16(c) and/or 26 of the Probuild 28 June Order, order 2(c) of the Orders made on 14 November 2024 and these Orders;

(b) the Geotechnical Engineering Experts pursuant to order 21 and/or 25 of the Order made on 14 November 2024;

(c) the Building Surveyor Experts pursuant to these Orders.

1. By 4:00pm on Monday, 17 March 2025 the parties to the Proceedings are to confer and attempt to resolve any objections notified by the parties pursuant to these Orders.

1. To the extent not already served, the parties are to provide each other and to provide the parties to the QIC Proceeding:

(a) all documents provided to the experts pursuant to these Orders;

(b) the reports produced under these Orders; and

(c) any joint request by the experts for further information, documents or direction pursuant to these Orders, and all responses to such requests.

1. The documents referred to in these Orders may be used by any party in either of the Proceedings.

1. The costs of all parties in relation to the Staging Application, including the costs of the hearings on 23 and 24 October 2024, are reserved.
2. Liberty to apply.

WADREN PTY LTD (ACN 005 537 235) in its capacity as trustee for THE HOPPERS CROSSING UNIT TRUST (ABN 83 405 769 465)

QIC WERRIBEE PTY LTD (ACN 624 121 204) as trustee for THE QIC WERRIBEE TRUST (ABN 76 994 021 211)

PROBUILD CONSTRUCTIONS (AUST) PTY LTD (subject to a Deed of Company Arrangement) (ACN 095 250 945)

PACIFIC SHOPPING CENTRES AUSTRALIA PTY LTD (ACN 005 537 244)

KPMG PROPERTY & ENVIRONMENTAL SERVICES PTY LTD (ACN 103 479 992)

QIC PRIVATE CAPITAL PTY LTD (ACN 076 279 528) as trustee for THE QIC PROPERTY FUND

QIC WERRIBEE PTY LTD (ACN 624 121 204) as trustee for THE QIC WERRIBEE TRUST

QIC PRIVATE CAPITAL PTY LTD (ACN 076 279 528) as trustee for THE QIC PROPERTY FUND

QIC RETAIL (NO. 2) PTY LTD (ACN 080 215 167) as trustee for THE QIC RETAIL (NO. 2) FUND

QIC RETAIL PTY LTD (ACN 067 279 546) as trustee for THE QIC TOWN CENTRE FUND

WADREN PTY LTD (ACN 005 0537 235) as trustee for THE HOPPERS CROSSING UNIT TRUST

PACIFIC SHOPPING CENTRES AUSTRALIA PTY LTD (ACN 005 537 244)

KPMG PROPERTY & ENVIRONMENTAL SERVICES PTY LTD (ACN 103 479 992)

PROBUILD CONSTRUCTIONS (AUST) PTY LTD (subject to a Deed of Company Arrangement) (ACN 095 250 945)

[1] Wadren Pty Ltd & Anor v Probuild Constructions (Aust) Pty Ltd & Ors [2023] VSC 348 and Wadren Pty Ltd & Anor v Probuild Constructions (Aust) Pty Ltd & Ors (Supreme Court of Victoria, Barrett AsJ, 17 August 2023).

[2] Justice Kathryn Stynes, 'Determining the real issues in dispute: Efficient and effective case management in the TEC List' (Speech, Society Of Construction Law Australia, 14 June 2023).

[3] Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 1.13.

[4] [2024] VSCA 238 [28]; [2014] VSCA 238; (2014) 45 VR 119, 126 (Nettle AP, Santamaria and Beach JJA) ('Murphy').

[5] [2001] HCA 19 [168]-[170]; [2001] HCA 19; (2001) 206 CLR 1, 55 ('Tepko').

[6] [2001] VSC 449 [25] ('Hyder Consulting').

[7] Hyder Consulting (Vic) Pty Ltd v CGU Insurance Ltd [2001] VSC 449 [25].

[8] Hyder Consulting (Vic) Pty Ltd v CGU Insurance Ltd [2001] VSC 449 [25].

[9] [2002] VSC 443 [13].

[10] [2023] WASC 61 [57], [70], [72], [83], [92] and [152]-[155].

[11] [2022] VSC 662 [29] (Elliott J).

[12] Inpex Operations Australia Pty Ltd v AIG Australia Ltd (No 2) [2023] WASC 61 [59] and [63].

[13] [2012] EWHC 38 (Ch) [7]-[8].

[14] [1995] VicRp 24; [1995] 1 VR 337, 339-340.

[15] Transcript of Proceedings (24 October 2024) 149.17-150.20.

[16] Transcript of Proceedings (23 October 2024) 44.25-31.

[17] Transcript of Proceedings (23 October 2024) 51.3-8; Transcript of Proceedings (24 October 2024)

[18] Transcript of Proceedings (23 October 2024) 50.28-51.8.

[19] [2022] VSC 23, [16] and [19].

[20] Murphy v State of Victoria & Anor [2014] VSCA 238; (2014) 45 VR 119 [28].

[21] [2021] VSCA 72 [262] (Beach and Osborn JJA, Stynes AJA).

[22] [2017] VSC 492 [24]-[25] (Mukhtar AsJ).

[23] [2003] FCA 1195, [24].

[24] Transcript of Proceedings (23 October 2024) 45.9-21.

[25] Transcript of Proceedings (23 October 2024) 50.28-51.3.