The Owners - Units Plan No 4321 v Victory Homes Pty Ltd

1. By application in proceeding filed on 9 February 2026, the plaintiff has sought leave to file and serve a proposed second further amended statement of claim dated 5 December 2025 and consequential orders. The reason that the proposed second further amended statement of claim is dated 5 December 2025 is because attempts were made, pursuant to directions of the court, to achieve consent to the grant of leave without the necessity for a formal application and contested determination.

2. The grounds of the application are that the pleading is necessary to narrow the issues in dispute and further articulate the plaintiff’s cause of action to ensure that the claim is clear and all material facts are pleaded. This is contended to be an amendment that must be made pursuant to r 501(a) of the Court Procedures Rules 2006 (ACT). Rule 501(a) requires that all necessary amendments of a document be made for the purpose of deciding the real issues in the proceeding.

3. The affidavit in support is that of Thomas Ryan, a solicitor who acts for the plaintiff. That affidavit demonstrates that the plaintiff’s proposal to file a further amended pleading had been discussed amongst the parties from 21 October 2025. It was then the subject of directions made on 24 October 2025. Notwithstanding the terms of those directions, which required the proposed amended pleading to be circulated by 21 November 2025, the proposed amended pleading was only circulated on 5 December 2025.

4. The explanation given to the other parties prior to the directions hearing was that amendments needed to be made to paragraph 29A of the further amended statement of claim dated 5 February 2025 (FASOC), as that paragraph referred to a section of the Building Act 2004 (ACT) which did not exist and that issue needed to be addressed. Further “the Plaintiff intends to amend the FASOC to further plead the material facts of the relevant certificates of compliance issued by the defendants and the certificate of occupancy and use, as requested by the defendants. The most practical method to address these issues is by way of amended pleadings”.

Victory Homes

Submissions

5. The first defendant, Victory Homes Pty Ltd (Victory), submitted that the proposed amendments to the FASOC would introduce a new cause of action and the plaintiff should not be permitted to plead a new cause of action which would otherwise be statute barred. In the alternative, Victory submitted that if leave to amend is granted it should be on terms that the amendments only take effect for the purposes of any limitation argument on and from the date the application in proceeding was filed, namely, 9 February 2026.

6. The submissions of Victory were that the amendments would introduce an “entirely new case against Victory which emerges for the first time years after the claim was filed”. In support of that proposition, Victory said that the present claim pleads that Victory was responsible to the principal under the building contract for obtaining a certificate of occupancy (COU) and was required to satisfy the Construction Occupations Registrar and other authorities with compliance documents and certificates: paragraphs 29 and 29D of the FASOC. According to that claim, Victory’s conduct involved issuing requests for compliance documents and certificates from subcontractors and then providing those documents to the Registrar, who relied on them in issuing the COU.

7. Victory characterised this as a narrow claim. It pointed to its defence (in paragraph 37 of its defence) that it was “a mere conduit” for any certificate produced by any other defendant and was not adopting the correctness of anything stated in the document.

8. In relation to the proposed amendments, Victory emphasised that in paragraphs 29E(a) and (b) of the proposed second further amended statement of claim dated 5 December 2025 there is now a reference to Victory and/or the developer intending to use the compliance documents to obtain certificates of completion from the certifier and then to provide those certificates to the Registrar for the issuing of a COU. There is now reference to Victory having deliberately initiated, organised and directed a process of collecting compliance documentation knowing that such documentation was required to meet the statutory certification requirements. The submissions referred to paragraph 29KD(a)(iii) of the proposed second further amended statement of claim, which identifies as one of the pleaded options that Victory submitted documents to the Registrar with the intention that the certification provided by Certified Building Solutions would be relied upon by the Registrar in issuing a COU. Finally, they pointed to a reference to the certifier having relied upon compliance documentation provided by Victory.

9. In response, the plaintiff submitted that the proposed amendments do not introduce a new cause of action and, as a result, the application should be determined under r 502 and leave should be granted consistently with r 501(a). Alternatively, if the amendments are properly characterised as a new cause of action, then leave should nevertheless be granted under r 503(4) because any new cause of action arises out of substantially the same facts as those already pleaded.

10. The plaintiff’s submissions point to the fact that misleading or deceptive conduct claims were pleaded against both Victory and the sixth defendant, Milestone Tiling (Milestone), in the original statement of claim. Those claims were maintained in the FASOC. The submissions point to authorities as to what constitutes a cause of action and how to assess whether a new cause of action is based upon substantially the same facts.

Decision

11. The plaintiff’s claim has always been that by passing on the compliance representations, Victory engaged in misleading or deceptive conduct. Although the pleadings are now longer and more detailed, that is simply because they flesh out and make more precise that basic allegation. As the submissions made on behalf of the plaintiff make clear, whether or not the representations in the documents may be attributed to Victory will depend upon whether or not Victory adopted or endorsed the representations so that they became its own: Google Inc v Australian Competition and Consumer Commission [2013] HCA 1; 249 CLR 435 at [69]-[71]; Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; 218 CLR 592 at [40]. It is clear that Victory understood that to be the issue and hence its pleading that it was a “mere conduit”. Insofar as Victory asserts that intention has now been pleaded, that is simply a consequence of the elaboration of the pleading. Having regard to the statutory regime which was pleaded and the actions of Victory which were pleaded, it could not realistically have been asserted that Victory was alleged to have engaged in the process of obtaining certificates and providing them to the Registrar without the intention that the documents then be relied upon and that intention is now specifically pleaded. I do not consider the introduction of the reference to the certifier involves any material change to the case presented.

12. In Borsato v Campbell [2006] QSC 191 at [8], McMurdo J commenced her discussion of what constituted a new cause of action with the following: The term “cause of action” was defined in Cooke v Gill [(1873) LR 8 CP 107 at 116] as being “every fact which is material to be proved to entitle the plaintiff to succeed”, a definition which many judgments have employed in the context of this rule or its equivalent: see e.g. Allonnor Pty Ltd v Doran [[1998] QCA 372 at [3]] per McPherson JA. But it has not been applied literally, for otherwise any new fact to be added to a plaintiff’s case would be treated as raising a new cause of action which required leave in the context of a rule such as r 376(4). So in Allonnor Pty Ltd v Doran for example, there is an indication of what the Court of Appeal in Thomas v State of Queensland [[2001] QCA 336 at [19]] subsequently endorsed as a “fairly broad brush comparison between the nature of the original claim and that to which it is sought to be amended”. The dividing line is between the addition of facts which involve a new cause of action and those which are simply further particulars of the cause already claimed, and its location involves a question of degree which can be argued, one way or the other, by the level of abstraction at which a plaintiff’s case is described. …

13. Perhaps reflecting his lack of enthusiasm for the point, counsel for Victory did not identify any relevant authority as to what constitutes a “new cause of action”. Nor did the submissions address the obviously available alternative if there was a new cause of action, namely that it was, for the purposes of r 503(4), a new cause of action arising out of substantially the same facts. Having regard to the alternatives available in r 503(4) where a new cause of action arises out of substantially the same facts, it is not productive to embark upon an analysis of past authorities as to what might constitute a new cause of action, which would necessitate consideration of cases which refer to old forms of action or to endorsements on writs, and attempt to work out how they apply in the context of the current Court Procedures Rules. Further, it is not necessary to attempt to understand what was said in Meredith v Commonwealth of Australia [2009] ACTSC 168 at [23] or to discern whether B Cairns, Australian Civil Procedure (Thomson Reuters, th 13 ed, 2024) at [8.230] has confused what Thomas JA said in Draney v Barry [1999] QCA 491; [2002] 1 Qd R 145 at [57] as relating to the definition of a new cause of action as distinct from the provision of the rules relating to a cause of action based on “substantially the same facts”. It is sufficient to say that, in this case, the amendments refine the existing case but do not constitute a new cause of action. In any event, and in case I am wrong in that conclusion, they undoubtedly arise out of substantially the same facts as the earlier pleaded claims.

14. Therefore, I accept the plaintiff’s submissions that the amendments are ones for which leave should be granted pursuant to rr 501 and 502. If I am wrong in considering that no new cause of action is pleaded, then the amendments are amendments which ought to be made under r 503(4) as they are within the scope of that rule, it is appropriate that the plaintiff be permitted to refine its case and no relevant prejudice has been established. Further, in those circumstances it would not be appropriate to confine the operation of the amendments to a date later than the commencement of the proceedings.

Milestone Tiling

Submissions

15. The submissions made on behalf of Milestone are that the plaintiff seeks to introduce a new cause of action. No submissions were made explaining why the amendments in relation to Milestone amount to a new cause of action. The submissions also referred to the delay in making the amendments and that Milestone had no contract with the plaintiff. It submitted that granting leave would cause “irreparable prejudice”. Milestone also submitted that the assessment of any costs order made in its favour should not be deferred until the proceedings end.

16. The plaintiff submitted that a misleading or deceptive conduct claim had always been included in the statement of claim and hence Milestone’s submissions were based on an incorrect premise. The plaintiff submitted that no relevant prejudice capable of justifying a refusal of leave had been established.

Decision

17. So far as Milestone is concerned, the proposed second further amended statement of claim makes more specific the representations contained in the certification that Milestone provided and more specifically pleads the reasons why the representations were made in trade or commerce.

18. It is clear that the proposed amendments do not introduce any new cause of action. If I am wrong about that, then the amendments involve a cause of action arising out of substantially the same facts as the cause of action already pleaded. In either event, the nature of the amendments is such that it is clearly appropriate to grant leave to allow them to be made.

Costs

19. In my view, the submissions made on behalf of Victory and Milestone in opposition to the grant of leave to amend lacked substance. The effect of those parties opposing the amendments has been to delay the proceedings. Notwithstanding that the plaintiff is seeking an indulgence, the circumstances of this case, the nature of the amendments made and the submissions made in opposition to them are such that I do not consider it appropriate that the plaintiff pay the costs of the defendants in relation to the application for leave to file and serve a proposed second further amended statement of claim. On the contrary, this is a case in which the defendants who opposed the granting of leave should pay the plaintiff’s costs from the date when the application was ultimately made.

20. So far as the other costs involved in the application prior to its formal filing are concerned, I consider that as between the plaintiff and the two defendants that opposed the application the appropriate order is that the plaintiff’s costs of that application are the plaintiff’s costs in the cause. So far as costs thrown away by reason of the amendments, I consider, consistent with the plaintiff’s submissions, the plaintiff should pay the defendant’s costs thrown away as a result of the amendments.

21. The other defendants are entitled to the position established by r 513, subject to the operation of r 1701(2). That outcome requires no order of the court, but in order to make the position clear, I will make an order reflecting the operation of those rules. Orders

22. The orders of the Court are: (1) The plaintiff is granted leave to file and serve the proposed Second Further Amended Statement of Claim dated 5 December 2025 in the form annexed to and marked “Item 6” to the affidavit of Thomas Ryan affirmed 5 December 2025 by 23 February 2026. (2) The first and sixth defendants are to pay the plaintiff’s costs of the application for leave to file an amended pleading from 6 February 2026 and otherwise as between the plaintiff and the first and sixth defendants the costs of the amendment are the plaintiff’s costs in the cause. (3) The plaintiff is to pay the first and sixth defendants’ costs thrown away by reason of the amendment. (4) As between the plaintiff and the remaining defendants the costs of the amendment are in accordance with rules 513 and 1701(2). (5) The proceedings are listed for directions at 9:15am on 25 February 2026 and the parties are directed to provide agreed or competing directions to the associate to Mossop J by 4pm on 24 February 2026. (6) Note: the directions should include the directions up to and including the completion of evidence.

I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate: Date: