The Owners - Strata Plan No 87231 v 3A Composites GmbH

The parties have conferred and largely agree upon the common questions of fact and law addressed in the judgment. The areas of dispute are relatively confined.

The general approach to the formulation of common questions and answers is now well settled. As stated by Gillard J in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2003] VSC 27 at [42]:

Further, as Halley J said in R and N Hunter Pty Ltd ATF the Hunter Family Superannuation Fund v Count Financial Limited [2025] FCA 544 (currently subject to an outstanding appeal, but on this point):

It is important to ensure that orders made pursuant to s 33ZB of the Federal Court of Australia Act 1976 (Cth) provide for the making of factual findings and the resolution of legal questions which cannot be affected by different facts being found in the case of individual group members and to avoid either provisional statements of entitlement or disentitlement: Lloyd v Belconnen Lakeview Pty Ltd (2019) 142 ACSR 445; [2019] FCA 2177 at [384] (Lee J) (overturned on appeal but not on this issue).

On 30 April 2026 the applicant and the sub-group representative (Applicants) filed proposed orders together with submissions in support of those proposed orders with changes proposed by the respondents in mark-up.

On 1 May 2026, the first respondent (3A) filed further marked up proposed orders together with submissions in support of those orders.

The second respondent (HVG) adopts the position of 3A.

As in the principal judgment, I refer to 3A and HFV collectively as the Respondents.

Today, I heard the parties in respect of the answers to the common questions which had not been agreed. These are my reasons for answering the common questions which remain in dispute.

Common question five concerns the findings made by the Court at J [783]-[785] about the location of any representations or failure to warn, which was relevant to the contention by 3A that the Trade Practices Act 1974 (Cth) and Sch 2 to the Competition and Consumer Act 2010 (Cth) (the Australian Consumer Law) did not apply to it as a foreign corporation. The Respondents seek to restrict the findings to the “Plus Composition Representation”, on the basis that this was the only representation that was found to have been established.

The Applicants submit that while the findings only had utility for the Applicants if the alleged representations and failures to warn were established, that is not necessarily so for each and every group member. The Applicants submit that some group members could rely on other representations made in the same marketing material and a common finding that those representations were made in Australia by 3A would be of utility to their individual claims.

The Applicants further submit that 3A at trial accepted that it did not give the relevant warnings. Therefore, while the Court ultimately concluded that this did not constitute misleading conduct, the failure to give those warnings was established and the Court, accordingly, did find that this failure occurred in Australia.

Only the Plus Composition Representation was found to be made (J [1389]), therefore, in my view, the appropriate answer to common question five is that it be confined to the publication of the Plus Composition Representation. I do not accept the Applicants submissions that making wider common findings in answer to this common question would be of utility for group members. That is because the websites and publications alleged to have contained the pleaded representations and omitted the omissions were not directed to group members but were found to have been directed to Design Professionals (being, as that term is defined in the principal judgment, a subset of the Qualified Professionals): J [1439], [1441].

The Applicants raise a further qualification to the final paragraph addressing representations made on 3A’s website. The Applicants submit that it should be qualified to reflect the fact that the Court did not ultimately make a finding on this issue: J [791]. The Applicants’ qualification does not reflect the finding made in the judgment. The qualification is unnecessary as the judgment speaks for itself.

This common question concerns the findings of the Court made about the reaction-to-fire properties of Alucobond PE. The only disagreement between the parties is that the respondents oppose the inclusion of the findings about the fire properties of the PE core of Alucobond PE based on the findings at J [18], [281] and [1161]. The respondents submit that this additional paragraph is repetitive and less precise than the agreed paragraphs of the fire properties of the Alucobond PE core. I do not agree. The Applicants’ additional paragraph is grounded in the findings made by the Court at J [18], [281] and [1161], and ought to be recorded in answers that bind the group members and Respondents.

I was informed this morning that the Applicants no longer oppose this common question, and that the common question will be answered, and answered, “No.”

Common questions 28, 29 and 30 address the findings that the Court made about the role of various Qualified Professionals during the relevant period: J [1321]-[1348].

The Respondents oppose the inclusion of any of these questions or answers. The Respondents contend that there was no pleaded issue concerning the role of such professionals. The Respondents contend that the 2FASOC did not put in issue the outer limits of the roles of the Qualified Professionals. The Respondents submit that although 3A pleaded that the products could be used safely and compliantly by Qualified Professionals, it did not plead the scope of the role of those Qualified Professionals. I do not accept the Respondents’ submission for the reasons that follow.

3A, in its defence at [56(e)], pleaded that “it was reasonable to expect that Qualified Professionals in the construction industry were aware of Known Fire Properties in relation to Alucobond PE and/or Alucobond Plus” (as that term is defined in the pleading). The Applicants joined issue with this contention and then included the alternative plea that if the advice of a qualified fire safety engineer was a pre-condition to the safe use of the products, then that ought to have been disclosed.

The Court should seek to record as many common findings of fact and law as it can for the benefit of group members and the Respondents. Those findings will then bind the group members and the Respondents in any subsequent litigation where the same issues arise. I accept the Applicants’ submission that findings about the role of fire safety engineers, building certifiers and architects during the relevant period, and what was and was not common practice, could be an important finding of fact for some group members, particularly if the class includes the Qualified Professionals themselves. For these reasons, the answer to common questions 28, 29 and 30 proposed by the Applicants will be made.

The Applicants contend that the answer to common question 31 should be qualified in the terms which they advance, referring to the findings in J [1400]. The findings of the Court at J [1392] do not need to be qualified by the paragraph proposed by the Applicants referring to J [1400]. The Applicants’ proposed additional paragraph or qualification will not be included in answer to common question 31.

I direct the parties to confer and submit a revised form of orders to answer the common questions which give effect to these reasons.