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[2025] NSWSC 1210
General information, not legal advice.
Supreme Court of NSW
2025-10-15
Rees J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: The Star Entertainment Sydney Properties Pty Ltd v Buildcorp Group Pty Ltd trading as Buildcorp Interiors (leave to amend) [2025] NSWSC 1210
Hearing dates: 13 October 2025
Date of orders: 15 October 2025
Decision date: 15 October 2025
Jurisdiction: Equity - Technology and Construction List
Before: Rees J
Decision: Leave granted in part; costs orders.
Catchwords: CIVIL PROCEDURE — protracted building-defects proceedings – directions and orders made on 46 occasions — extensive application to amend defence and cross-claims on first day of 10-day trial — principles at [32]-[33] — casino seeks $4 million in damages from builder for using combustible and non-compliant aluminium composite panels (ACPs) — builder cross-claims against architect and façade installer’s insurer — amendments sought to align pleadings with evidence exchanged and to narrow issues in dispute — whether amendments actually do this.
PLEADINGS — proposed amendments inconsistent with previous pleadings — r 14.18, Uniform Civil Procedure Rules 2005 (NSW) — principles at [51]-[53] — rule is subservient to overriding case management principles, to determine real issues in dispute and correct errors.
Legislation Cited: Civil Liability Act 2005 (NSW), s 5D(3)(b)
Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW), ss 4, 5
Civil Procedure Act 2005 (NSW), ss 58, 64(2), 65(2)(c), 65(3)
Environmental Planning and Assessment Act 1979 (NSW), s 6.20
Insurance Act 1948 (Cth), s 48
Limitation Act 1969 (NSW), s 14
Uniform Civil Procedure Rules 2005 (NSW), r 14.18
Cases Cited: Alamdo Holdings Pty Ltd v Australian Window Furnishings (NSW) Pty Ltd [2006] NSWSC 1073
Aon Risk Services Pty Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
AV8 Air Charter Pty Ltd v Sydney Helicopters Pty Ltd (No 2) [2014] NSWCA 238
Cockburn v GIO Finance Ltd (No 2) [2001] NSWCA 177
Friend v Brooker (2009) 239 CLR 129; [2009] HCA 21
Hawkesbury District Health Service Ltd v Patricia Chaker [2010] NSWCA 320
Hawkesbury District Health Service Ltd v Patricia Chaker [2010] NSWCA 320
Nanevski Developments Pty Ltd v Slaveski [2020] NSWSC 617
Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116 [2001] NSWCA 246
Tamaya Resources Ltd (in liq) v Deloitte Touche Tohmatsu (a firm) [2015] FCA 1098
The Owner – Strata Plan 76841 v Ceerose Pty Ltd [2017] NSWCA 140
The Owners – SP 67635 v Metlej Developments Pty Ltd [2013] NSWSC 1564
The Owners – Strata Plan 76841 v Ceerose Pty Ltd [2016] NSWSC 1545
The Owners – Strata Plan No 87231 v 3A Composites GmbH (No 3) [2020] FCA 748
The Owners – Strata Plan No 87231 v 3A Composites GmbH (No 3) [2020] FCA 748
The Owners – Strata Plan No. 91684 v Parkview Constructions Pty Ltd [2025] NSWSC 493
The University of Sydney v Multiplex Constructions Pty Ltd (No 2) [2023] NSWSC 1019
Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514; [1992] HCA 55
White v Overland [2001] FCA 1333
Texts Cited: Ritchie’s Uniform Civil Procedure (NSW) (LexisNexis)
Category: Procedural rulings
Parties: Buildcorp Group Pty Ltd trading as Buildcorp Interiors (Applicant)
The Star Entertainment Sydney Properties Pty Ltd (First Respondent)
The Star Pty Ltd (Second Respondent)
Malone Buchan Laird & Bawden Pty Ltd t/as The Buchan Group (Third Respondent)
Philip Chun & Associates Pty Ltd as Trustee for Philip Chun & Associates NSW Unit Trust (4th Respondent)
The Underwriting Members of Lloyd’s Syndicate 1206 subscribing to the 2013 underwriting year of account (5th Respondent)
The Underwriting Members of Lloyd’s Syndicate 1206 subscribing to the 2014 underwriting year of account (6th Respondent)
The Underwriting Members of Lloyd’s Syndicate 1206 subscribing to the 2015 underwriting year of account (7th Respondent)
Representation: Counsel:
B Le Plastrier / L Muir (Applicant)
L Shipway / S Kanagaratnam (1st, 2nd Respondents)
S Docker SC / Gander (3rd Respondent)
MR Elliott SC / N Simone (4th Respondent)
IGB Roberts SC / J Wright (5th, 6th, 7th Respondents)
Solicitors:
Colin Biggers & Paisley (Applicant)
Holding Redlich (1st, 2nd Respondents)
Lander & Rogers (3rd Respondents)
Gilchrist Connell (4th Respondent)
DWF (Australia) (5th, 6th, 7th Respondents)
File Number(s): 2020/112369
This is an application by the defendant, Buildcorp Group Pty Ltd (the b**uilder), to amend its Cross-Summons and Technology and Construction List Cross-Claim Statement. This application was heard on the first day of a 10-day trial. It occupied the whole day. The submissions and evidence relied upon by the parties assumed a degree of intricate familiarity with the pleadings, procedural history and evidence which I do not presently possess. I will endeavour to deal with the application nonetheless.
As to the substantive proceedings, the plaintiffs seek damages from the builder in respect of three contracts to effect construction and refurbishment works at the Star Casino in Pyrmont. The contracts were entered into roughly a decade ago, being:
(a) the first contract in October 2014 in respect of refurbishment of part of the Astral Hotel tower, referred to as “Project Titan”; (b) the second contract in May 2015 concerned the Darling VIP gaming suites, referred to as “Project Sovereign Rivers”; and (c) the third contract in December 2015, to remove the Observation Lift from the casino and to make good the façade.
On 14 March 2014, the plaintiffs entered into a professional services agreement with Malone Buchan Laird & Bawden Pty Ltd trading as The Buchan Group (the architect) in respect of Project Titan. The architect agreed to indemnify the plaintiffs for any loss in respect of damage to property, or the need to rectify any aspect of the project, arising out of their work: cl 14.1. However, the architect’s liability would be “reduced proportionately to the extent that a breach of this agreement by, or the negligence of, the Principal or … agents or contractors contributed to the Liability”: cl 14.2.
On 29 July 2014, a construction certificate application was completed. A design workshop was held. Emails passed between the builder and the architect in respect of aluminium cladding for the project, with reference made by the builder to selecting “from the Alpolic colour chart” and the architect replying, “Once a suitable colour has been chosen, the client will have to approve both the colour and the material substitution.”
On 15 August 2014, the architect prepared a Shell & Core Works Package specification, detailing the installation of aluminium solid core composite panels to the tower. The architect specified “PVF2 painted aluminium honeycomb core flat sheet wall cladding with silicon filled expressed joints (AL-55) colour … to match existing”. I understand this is not an “Alpolic” cladding product.
But on 16 September 2024, the architect approved a sample of Alpolic composite aluminium cladding submitted by Ausrise Aluminium Pty Ltd (in liq) (the façade installer). On 18 September 2014, the builder entered into a sub-contract with the façade installer. The façade installer had a policy of insurance with Lloyd’s.
On 25 September 2014, 007 401 649 Pty Ltd (liq) (formerly Philip Chun & Associates Pty Ltd ATF Philip Chun & Associates NSW Unit Trust (the certifier) approved the construction certificate. The approved drawings included the construction drawings prepared by the architect as earlier described. That is, no reference was made to the “Alpolic” cladding product.
On 9 October 2014, the architect approved shop drawings prepared by the façade installer, having reviewed the drawings for compliance with the design intent of the architectural drawings. The architect noted, however, that the builder remained responsible for compliance with statutory schemes, codes and requirements. The shop drawings referred to “4mm composite panel” in various locations.
On 22 October 2024, the plaintiffs entered into a building contract with the builder in respect of Project Titan. The builder agreed to indemnify the plaintiffs for any loss or damage to the principal’s property arising as a consequence of carrying out the work but – like the contract between the plaintiffs and the architect – the builder’s liability to indemnify the plaintiffs was “reduced proportionately to the extent that the act or omission of the Principal, the Project Manager or the … agents of the Principal contributed to the loss, damage, death or injury.”
In April 2015, the architect prepared drawings for the Darling VIP gaming rooms. The drawings specified “Alpolic” composite aluminium panel cladding. On 30 June 2015, the architect approved a sample of that product. In July 2015, the architect approved shop drawings prepared by the façade installer, which referred to “aluminium composite panel” in various locations. The certifier for the work performed under the second contract was McKenzie Group.
It is not necessary to refer to the third contract. The certifier for the work performed under the third contract was McKenzie Group. The façade installer remained the same while the façade engineer was Taylor Thomson Whiting.
As I understand it, the plaintiffs removed and replaced the “Alpolic” cladding in response to a fire safety order. The plaintiffs now seek damages from the builder in respect of allegedly defective building work. I understand that the quantum of the claim is some $4 million.
(a) the architect as the first cross-defendant; (b) the certifier as the second cross-defendant, against whom leave to proceed was granted in August 2021 and against whom the proceedings were settled yesterday; (c) AECOM Australia Pty Ltd and WSP Buildings Pty Ltd were the third and fourth cross-defendants, being the fire engineers on Project Titan and Project Sovereign Rivers respectively (the cross-claims against these parties have settled, resulting in the dismissal of the Cross-Claim against them); and (d) the façade installer as the fifth cross-defendant.
In March 2023, the plaintiffs amended their claim to seek damages in respect of the third contract.
Other parties involved in the works, but not former or current parties to these proceedings, are McKenzie Group and Taylor Thomson Whiting. These parties are, however, named as concurrent wrongdoers on various proportionate liability pleadings.
The parties progressively filed their lay and expert evidence and sought production of documents. The procedural history is both protracted and complex. I note that directions and orders have been made in the matter on 46 occasions since the proceedings were commenced.
In February 2024, the builder’s expert architect, Mark Bullen, provided an expert report in relation to the services provided by the architect on Project Titan and Project Sovereign Rivers. Mr Bullen expressed the view that the architect had failed to perform to the standard of a reasonably competent architect, including as the architect had failed to properly include the specification of ACP cladding on the external façade of the project in the drawings it prepared for the construction certificate, or failed to amend the construction certificate as appropriate.
In May 2024, the builder’s senior project manager, Nick Martin made an affidavit. He said that, at the time of the first contract, he understood that the architect, the certifier, the fire engineer and the façade installer were satisfied that the proposed installation of cladding to the Astral Hotel Tower complied with the Building Code of Australia and relevant laws, and was suitable and fit for purpose. So far as the architect was concerned, Mr Martin formed this understanding on the basis that the architect’s Shell & Core Works Package specifications on 15 August 2014 detailed the installation of aluminium solid core composite panels to the tower. Then, the architect approved a sample of Alpolic composite aluminium cladding submitted by the façade installer and shop drawings prepared by the installer.
Mr Martin said that, if he had been alerted by inter alia the architect of any potential BCA compliance issues, he would have ceased the installation of cladding panels to the Astral Hotel Tower and sourced alternate products that were compliant. Mr Martin gave evidence along the same lines in respect of the second contract.
In May 2024, the façade installer went into liquidation. In October 2024, Stevenson J fixed this matter for hearing for 10 days commencing on 13 October 2025.
In October 2024, Alan Polden made an affidavit for the architect. He said that the architect was not asked by the builder, or anyone, to update the For Construction drawings issued for Project Titan to reflect the product substitution of Alpolic FR. He decided not to alter the design documentation “because I was annoyed with the change and that it had been made without my involvement and was presented to me as a fa**it acc**ompli. I personally disagreed with the decision to change the product and did not want [the architect] to be seen as having ‘approved’ or endorsed the decision.”
Mr Polden also addressed Mr Bullen’s report, where the expert opined that the architect should have updated the drawings. Mr Polden replied that his drawings, when read together with the Shell & Core Works Package, provided for the use of “Quadroclad” and “Multipanels”. He was not asked to update the drawings and did not do so, for the reasons already given.
On 25 September 2025, the builder circulated proposed amended pleadings, said to be “largely directed at bringing the proceedings in line with the evidence exchanged to date”. Some of the builder’s pleadings were said to have been dis-aggregated, such that allegations which had been pleaded generally and in a “wrapped-up way” were now pleaded more specifically. Other issues in dispute were said to have been narrowed.
On 26 September 2025, Peden J made directions for the progress of the proposed amended pleadings. Relevantly, if the parties did not consent to the proposed amendments, then the builder was to file a motion and any supporting evidence and submissions by 7 October 2025, with any motion to be heard at the commencement of the trial. On 1 and 2 October 2025, the parties advised the builder which of the proposed amendments they consented to, and which they did not. The builder circulated a further version of the documents on 3 October 2025.
On 6 October 2025, a joint report was completed by the architect experts, Mr Bullen and Mr Roberts. Mr Bullen repeated his views that a registered architect would have appreciated that the changed ACP cladding was contrary to that specified in the drawings relied upon for the construction certificate and needed to be considered by the certifier for an amended construction certificate. An architect would ensure that the change was incorporated into the documents submitted for such an amended construction certificate. The architect in this case was considered to have failed to do so. Mr Roberts did not respond to this comment.
Mr Bullen repeated his view that, when the shop drawings were reviewed, the architect knew or should have known that ACP cladding was to be used on the external walls of the project. The architect should have updated its “For Construction” drawing and sought an amended construction certificate. Mr Roberts expressed a contrary view.
Mr Bullen also opined that, on realising that Alpolic FR had been substituted for the architect’s chosen cladding, an architect would not only amend its For Construction drawings to include the substitution of Alpolic FR, but the architect would also have advised the client and the project manager that an amended Construction Certificate was needed to include the new Alpolic FR cladding. The architect in this case failed to do so. Mr Roberts expressed a contrary view.
The builder filed its motion to amend on 9 October 2025, supported by an affidavit of solicitor Shannon Blain and a further version of the proposed amended pleading. Mr Blain’s affidavit is devoid of any explanation for the late amendments to the pleadings. On the first day of trial, 13 October 2025, the builder provided further versions of the proposed Second Further Amended Technology and Construction List Cross-Claim Statement (twice). The current version is marked “MFI-2”.
“… leave to amend particulars will usually be granted where the amendment is in accordance with the substance of the existing pleadings: Clarapede and Co v Commercial Union Assn (1883) 32 WR 262; and especially where the amendment sought is in accordance with evidence that has actually been given: Dare v Pulham (1982) 148 CLR 658; 44 ALR 117; BC8200139; Mummery v Irvings Pty Ltd (1956) 96 CLR 99; [1956] ALR 795; Leotta v Public Transport Commission (NSW) (1976) 9 ALR 437 at 446; 50 ALJR 666.”
… Relevant matters the Court is to consider include:
(1) The nature and importance of the amendment to the party applying for it: Aon at [102];
(2) The extent of the delay and the costs associated with the amendment: Aon at [102];
(3) The prejudice that might be assumed to follow from the amendment, and that which is shown: Aon at [5], [100] and [102];
(4) The explanation for any delay in applying for that leave: Aon at [108]; and
(5) The parties’ choices to date in the litigation and the consequences of those choices: Aon at [112] and Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 (“Luck”) at [44];
(6) The detriment to other litigants in the Court: Aon at [93], [95] and [114] and Luck at [44]; and
(7) Potential loss of public confidence in the legal system which can arise where a court is seen to accede to applications made without adequate explanation or justification: Aon at [5], [24] and [30].
In this List, the quantum of the plaintiffs’ claim is modest. I have borne this in mind when considering an application for what may be described as wide-ranging amendments and the implications of those amendments on the trial. One hearing day has already been lost. Not only has the parties’ time been diverted from trial preparations to considering this application; so has mine.
I have also borne in mind the professed rationale for these amendments, being to bring the pleadings into line with the evidence, make general allegations more specific and to narrow the issues in dispute. Whilst such aims are laudable, one would not expect such amendments to cause the parties prejudice. Where the parties protest that the proposed amendments work prejudice and not simplicity, then I am inclined to defer to their protestations where there is no other suggested reason for the amendments, nor any explanation as to why these extensive amendments are sought so late in the day.
(a) the architect produced For Construction drawings for the certifier on 15 August 2024 (para 23(a1)); (b) the architect then approved a sample of Alpolic FR composite cladding but did not update the drawings to refer to this fact, in breach of its duty of care (para 23A(c) and 24(e)); (c) had the architect done so, then the certifier would have understood that the cladding proposed to be used was non-compliant and would have either formulated an Alternative Solution or, if no such solution was available, would not have issued the construction certificate and would have warned the builder (para 25A); (d) in that event, the builder would not have used the offending cladding but would have obtained alternative compliant products (para 25B and 25C).
Further, the architect’s approval of the sample of Alpolic FR composite cladding and the subsequent Shop Drawings is said to amount to a representation contrary to the Australian Consumer Law: that Alpolic FR composite cladding and the architect’s design complied with the Building Code of Australia; and that Alpolic FR composite cladding was suitable. Absent these representations, it is now proposed to be said that the builder would not have used Alpolic FR composite cladding but would have sourced alternative suitable problems: para 29A, 29H. The architect does not oppose the pleading of the representations but the paragraphs which plead the counterfactual.
Finally, in the event that the plaintiffs succeed against the builder in contract, equitable contribution is sought from the architect as a co-obligor: para 30A.
The architect’s solicitor, Charles Thornley, said that his client is prejudiced by these proposed amendments as it would have investigated the certifier’s knowledge in respect of the substitution of Alpolic FR for the cladding product specified by the architect. The architect would have sought discovery from the certifier, sought additional discovery from the plaintiffs and the builder, and issued further subpoenas. Further, the architect would have investigated whether there were other witnesses who attended design workshop meetings. The architect would have retained a building surveyor or certifier expert. Mr Thornley complained that the position was quite unfair where it had been difficult to obtain relevant documents from the builder to date.
Mr Thornley also said that the architect would have filed cross-claims against other parties in respect of the proposed equitable compensation claim, including former cross-defendants and others who have never been joined to these proceedings.
The builder submitted that the suggestion that the architect should have updated its drawings is based on the expert report of Mr Bullen. It had been clear since February 2024 that this was in issue. The architect has responded to Mr Bullen’s report through lay witness, Mr Polden, and expert, Mr Roberts, albeit not in any detail. (I interpolate, possibly because it was not a pleaded allegation at the time the affidavit and expert report were prepared). The experts had engaged on the issue, including in their joint report. Having done so, the architect cannot say that it is not prepared to meet this case. While the architect said that it would have asked an independent expert specific questions about whether a reasonably competent architect would have updated its For Construction drawings, that has already happened. The amendment does nothing more than bring the pleading into line with the evidence on which the parties have joined issue.
The builder submitted that the architect was not prejudiced as it had already sought extensive discovery and production on subpoena, such that it was unlikely that there was any further material on which the architect could seek to rely on defending this claim. Nor was there any particular contest on quantum. The architect could cross-examine both quantity surveyors. It was difficult to see that the architect had suffered any real prejudice by not adducing quantum evidence itself.
14.18 Pleadings to be consistent as to allegations of fact
(1) A party must not in any pleading make an allegation of fact, or raise any ground or claim, inconsistent with any of his or her previous pleadings.
(2) Subrule (1) does not affect the right of a party to make allegations of fact, or raise grounds or claims, in the alternative.
As the learned authors of Ritchie’s Uniform Civil Procedure (NSW) observe, “The primary question is whether the alternative allegations cause embarrassment or inconvenience … The rule does not prohibit a party from using a subsequent pleading to explain or qualify an earlier pleading: at [14.18.5], citations omitted.
I do not think this rule prohibits a party from amending its pleading to drop an allegation of fact which the pleading party has come to realise has no basis and to substitute an allegation of a different fact for which the pleading party has come to understand that there is a proper basis. For example, if a statement of claim pleads that the first defendant was the driver of a vehicle involved in a car accident which caused personal injury to the plaintiff, and the second defendant was a passenger, I do not think it offends this rule to amend the statement of claim to change the identity of the driver to the passenger if investigations indicate that the initial pleading is plain wrong. Part of the point in amending pleadings is to determine the real questions raised by the proceedings, correct defects or errors, and avoid multiplicity of proceedings: ss 58, 64(2), Civil Procedure Act 2005 (NSW). Rule 14.18 is subservient to these overriding case management principles and does not preclude what the builder seeks to do.
So far as the builder seeks to change the basis on which it is said that the architect was negligent, it appears from the material which I have been taken to on this application that the initial picture pleaded no longer pertains, as a result of the emerging evidence of Mr Bullen, to which the architect has responded by Mr Polden and Mr Roberts. It may well be that, if the proposed allegation had been pleaded at the outset, that the evidence of Mr Polden and Mr Roberts on this point may have been more fulsome. But the substance of their response to the allegation has been stated. Mr Bullen, Mr Polden and Mr Roberts will be giving evidence in the trial. I am of the view that these amendments should be allowed.
The same can be said for the proposed amended counterfactual, where the existing pleading is itself problematic. I consider that the amended pleading of the counterfactual does put forward a credible sequence of events and it would be preferable to examine whether that counterfactual is established rather than the open-ended proposition for which the builder presently contends.
The same can be said for the proposed pleadings of the counterfactual in relation to the Australian Consumer Law claims. The builder particularises these proposed paragraphs by reference to two paragraphs from Mr Martin’s affidavit of 9 May 2024. The architect has had this evidence for some time. If it be the case that this evidence is inadmissible or insufficient to establish the pleaded counterfactual, then so be it. But I consider that the architect can meet this allegation. It does not give rise to any particular prejudice in terms of evidence or joining additional parties.
The builder proposes to amend its Amended Cross Summers to seek, against the insurers, damages under s 4(1) of Civil Liability (Third Party Claims Against Insurers) Act and s 48 of the Insurance Act 1948 (Cth). I understand that only the latter amendment is in contest.
As for the amendments to the builder’s Further Amended Technology Construction List Cross Claim Statement, the builder’s case against the insurers depends on a pleaded case against the façade installer for the purposes of engaging the subcontractor’s insurance policy. The current pleading against the façade installer is for breach of contract, a claim on the indemnity in cl 13.3.4 of the subcontract, negligence and compensation for contravention of section 54 of the Australian Consumer Law.
The proposed amendments:
(a) plead an entitlement to an indemnity under cl 14.2 of the subcontract (para 87A to 87C); (b) seek compensation for misleading and deceptive conduct under ss 18 and 29 of the Australian Consumer Law in respect of the first and second contracts (para 90A to 90O). In short, it is said that, by providing Alpolic FC samples and referring to this product in shop drawings, the façade installer represented that the product was compliant with the BCA and suitable; and (c) add a claim in the alternative by the builder as the insured (para 97A and 99).
The insurers’ solicitor, Peter Brownless, said that the proposed amended cross-claim asserts, for the first time, that the builder is an “Insured” under the façade installer’s policies and is entitled to recover in its own right. On the evening of 7 October 2025, the builder sought confirmation of cover from the underwriters, who are based in London. Mr Brownless set out the steps required to process this claim, and the timeframes involved. Suffice to say, these steps are unachievable before the conclusion of the trial.
Under the policy, “the insured” included every principal in respect of the principal’s liability arising out of the insured’s performance of a contract, or products supplied by the insured but “only for such coverage and Limited Liability as are provided for by this Policy.” The policy also contained the following exclusion:
“We do not cover any liability:
...
3.6 Contractual Liability
Which has been assumed by You under any contract or agreement that requires You to:
…
3.6.2 assume liability for … Property Damage regardless of fault …”
The sub-contract between the builder and façade installer included an indemnity, “The sub-contractor shall be solely liable for, and indemnifies the Contractor … for, any losses … in connection with or arising out of or in the course of the performance of the sub-contract, irrespective of when or how such losses, expenses, liabilities, costs, Claims and actions arise or whose fault or negligence (if any) gave rise to same, in respect of: (a) any loss of or damage to property; … or (c) financial loss consequent upon paragraphs (a) … above*.*”
The insurers submitted that proposed paras 87A to 87C introduced a new claim against the façade installer for which leave to proceed had not been given. The claim was also time-barred: s 14, Limitation Act 1969 (NSW). The claim was futile given the exclusion in cl 3.6 of the policy, which excludes liability assumed under a contract or agreement regardless of fault. Futile amendments will not be allowed: Alamdo Holdings Pty Ltd v Australian Window Furnishings (NSW) Pty Ltd [2006] NSWSC 1073 per Barrett J at [26].
The builder submitted that leave ought be given unless the argument as to why the exclusion did not apply was “hopeless” or “manifestly groundless”: Nanevski Developments Pty Ltd v Slaveski [2020] NSWSC 617 at [220]-[222] (Ward CJ in Eq). Properly construed, the indemnity in cl 14.2 of the subcontract was blind to the question of fault, that is, whether there was fault was irrelevant for the purposes of engaging the clause. An indemnity which is engaged where there is no fault is also engaged where there is fault. Where the liability for the purposes of the insurance claim is fault based, then the exclusion would not apply.
The insurers submitted that the new Australian Consumer Law claims were sought to be pleaded absent leave to proceed against the façade installer in respect of such claims. These causes of action were not merely amendments to bring the builder’s case into line with its evidence. The insurers say this claim is illogical, as the decision to use the product had already been made. The provision of samples post-dated the architect’s approval of the Alpolic products. The builder could not have relied on the façade installer in the manner sought to be suggested in these circumstances. Nor did the shop drawings refer to “Alpolic” but only to aluminium composite cladding. The claim in respect of the second contract was also hopeless where the samples were provided after the architect specified “ALPOLIC COMPOSITE ALUMINIUM PANEL CLADDING”. The shop drawings made no mention of “Alpolic”.
As to the claim as insured, the insurers submitted that this claim was brought too late to be considered and defended by the Underwriters at the hearing. The insurers will need to consider whether the policy responds to the notification given by builder on 7 October 2025 and if so to what extent.
I consider that the builder’s proposed amendment to claim an entitlement under cl 14.2 of the façade installer’s sub-contract should be allowed. Meeting that claim requires no more than the insurers making submissions on the proper construction of the exclusion in cl 3.6 of the policy and whether the indemnity sought is so excluded. That is, this claim, albeit late, can be met.
The additional Australian Consumer Law claim is also allowed as the insurers’ defence of that claim turns on factual matters which will already be the subject of these proceedings. It is not suggested that the insurers will need to adduce any further evidence or find any further documents to meet these allegations.
The position is different in respect of the builder’s claim against the insurers as the insured. I accept that the insurers are not in a position to assess the claim for indemnity before this trial is concluded. I also accept that the insurers have real prejudice in the circumstances as, had the builder made a claim on the policy before now, the insurers may have exercised their right to take over the conduct of these proceedings.
I also accept that there is a conflict between the insurer’s duties vis a vis the façade installer and the builder’s interests now sought to be agitated by this additional claim. I also accept that there is no relevant prejudice to the builder as the insurers agreed that they will be bound by any findings made in respect of the cross-claim against the façade installer, and that the builder may seek indemnity from the insurers after these proceedings are concluded. The claim to recover the builder’s costs of defending the plaintiffs’ claim appears to fall into the same category, as the builder seeks to recover these defence costs as an insured. These amendments are not allowed.
For these reasons, I make the following orders:
Grant leave to the defendant to file a Further Amended Technology and Construction List Response in the form of Annexure A to its motion filed on 9 October 2025, save for the proposed amendments to paragraph 69, which are not pressed.
Grant leave to the cross-claimant to file a Further Amended Cross-Summons in the form annexed to the motion filed on 9 October 2025 and marked “C” save for prayers 6(b), 7(b) and 8(b).
Grant leave to the cross-claimant to file a Second Further Amended Technology and Construction List Cross-Claim Statement in the form marked “MFI-2” save for the proposed amendments to paragraphs 30A, 97A and 99.
The defendant is to pay the costs of the plaintiff and cross-defendants occasioned by the amendments, including their costs of the motion.
**********
The Star Entertainment Sydney Properties Pty Ltd
Buildcorp Group Pty Ltd trading as Buildcorp Interiors
(2009) 239 CLR 175
(2009) 239 CLR 129
(2001) 53 NSWLR 116
(1992) 175 CLR 514
(1982) 148 CLR 658
(1956) 96 CLR 99
(1976) 9 ALR 437
In December 2024, the architect instructed its architect expert, Grant Roberts, to consider Mr Bullen’s report. Mr Roberts was asked to set out any areas of disagreement and the reasons for his disagreement. In January 2025, Mr Roberts disagreed with Mr Bullen’s opinion that the architect should have updated the construction drawings to show a change in the cladding material to Alpolic FR or to seek an amendment to the construction certificate to reflect the change in cladding material. Mr Roberts was of the view that the architect would only revise its drawings when a direction from the project manager indicated that the principal had approved the variation to the design. From Mr Roberts’ review, the project manager did not give such a direction.
In April 2025, the façade installer’s insurers were joined to the proceedings under s 5 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW). The sixth to eight cross-defendants are the underwriting members of Lloyd’s Syndicate 1206 subscribing to the 2013, 2014 and 2015 underwriting years of account respectively (the insurers). The builder filed an Amended Cross-Summons and Further Amended Technology and Construction List Cross-Claim Statement, effecting the joinder. It is these pleadings which are now sought to be amended.
The builder submitted that the existing proposed counterfactual was much more broadly put, while the new counterfactual was narrower. If the amendment was not allowed, then the builder would be entitled to proceed on its broader case, which was unimpacted by request for particulars or strike applications in the last four years. Alternatively, the builder was content for its new pleaded counterfactual to stand as particulars of the original pleading.
The builder submitted that the proposed counterfactual would also come as no surprise, where the certifier had put on evidence (Mr Marinelli) that it relied on the architect’s drawings and was not aware that Alpolic FR composite cladding was in fact used until the commencement of these proceedings. That a certifier would identify that the Alpolic FR composite cladding was non-compliant emerged from the expert report of Mr Van Ravenstein (April 2024). Either an alternative product would have been available and substituted or, if no alternative product was available, then the certifier would not have permitted substitution of the product specified by the architect. It was no part of the counterfactual that there was a particular alternative product. Mr Harriman’s October 2024 report noted that there were alternatives available; that was enough.
As to the proposed claim for equitable contribution, the builder submitted that this would only arise if the builder was found to have a coordinate liability with the architect in respect of design obligations. In those circumstances, equity may require contribution, which depended on “matters of substance, not form" but required a “common burden”: Cockburn v GIO Finance Ltd (No 2) [2001] NSWCA 177 at [23]-[28] (Mason P). The suggestion that such a claim was time-barred should not be dealt with on an interlocutory application except in the clearest of cases: Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514; [1992] HCA 55 at 533. Whether an action concerning the affixation to a building of allegedly combustible or otherwise defective panels was time-barred by ss 6.20(1) of the EPAA was not entirely clear, as Wigney J appeared to consider in The Owners – Strata Plan No 87231 v 3A Composites GmbH (No 3) [2020] FCA 748 at [68]-[70].
The architect submitted that these amendments radically changed the case against it, offending r 14.18(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). The amendments were not about bringing the builder’s case into line with the evidence but trying to fashion an entirely new case from cherries picked out of comments made by experts in passing or only tangentially when dealing with other topics, and other scraps of evidence. Such an approach smacked of the “ambush theory of litigation”: White v Overland [2001] FCA 1333 at [4] per Allsop J; Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116 [2001] NSWCA 246 at [26]-[31]; Hawkesbury District Health Service Ltd v Patricia Chaker [2010] NSWCA 320 at [170], [179]; AV8 Air Charter Pty Ltd v Sydney Helicopters Pty Ltd (No 2) [2014] NSWCA 238 at [30]. It could not be said that the architect was prepared to meet the case now proposed simply because its evidence touched on the issue of updating the For Construction drawings, when that evidence was prepared in response to the opposite case.
The architect submitted that it is necessary to properly plead a credible sequence of events that would have occurred but for the impugned conduct, and the proposed amendments did not achieve this: The Owners – Strata Plan No. 91684 v Parkview Constructions Pty Ltd [2025] NSWSC 493 at [29]; The University of Sydney v Multiplex Constructions Pty Ltd (No 2) [2023] NSWSC 1019 at [45]-[48] (Stevenson J). The proposed counter-factual rested on a single paragraph of Mr Martin’s reply affidavit, which was said to be inadmissible as hindsight evidence: s 5D(3)(b), Civil Liability Act 2005 (NSW). The builder should be left with its current, albeit defective, pleading.
The architect noted, from the current pleading, it might reasonably have been assumed that the builder’s case was that it would have used the products in the architect’s tender drawings and specification. It is now proposed to allege that the builder would have used an unidentified, different product. Apparently, the builder intended to rely on the plaintiffs’ reply report of Mr Harriman about the existence of a product ‘Vitracore honeycomb ACP’. Mr Harriman said nothing about the availability of that product. No party had investigated its suitability for use on the projects, whether it could be used on the structure as designed or its cost at the time. The architect was not told that the plaintiffs’ evidence would be deployed in the builder’s case in this way, nor that the builder’s expert Mr Van Ravenstein would be deployed in its causation case against the architect.
As to the equitable contribution claim, the architect submitted that this case put its duties to the plaintiffs in issue for the first time. The claim was arguably statute barred by the long-stop limitation period in s 6.20 of the Environmental Planning and Assessment Act 1979 (NSW): The Owners – Strata Plan No 87231 v 3A Composites GmbH (No 3) [2020] FCA 748 at [69]-[81] per Wigney J; The Owners – SP 67635 v Metlej Developments Pty Ltd [2013] NSWSC 1564 at [20] per Sackar J; The Owners – Strata Plan 76841 v Ceerose Pty Ltd [2016] NSWSC 1545 per Stevenson J (leave to appeal refused in The Owner – Strata Plan 76841 v Ceerose Pty Ltd [2017] NSWCA 140). Nor could it be said that the claim arose from the same (or substantially the same) facts as those giving rise to the existing pleadings: s 65(2)(c), CPA. In any event, this was an appropriate case in which the court should “otherwise order” as contemplated, such that the amendment does not take effect from the date on which proceedings commenced: s 65(3) CPA.
The architect submitted that prejudice was substantial and irremediable. The architect had not investigated any counterfactual or loss in relation to a claim the plaintiffs might have brought against it. Further, the architect was entitled to raise a contributory negligence defence to a negligence claim by the plaintiffs or a similar defence under cl 14.2 of its contract. Such a claim would involve discovery, subpoenas, further lay evidence and other experts. There was no time to do any of these things. Finally, the architect could have brought its own cross-claims to seek equitable contribution from other parties who also arguably had co-ordinate liabilities to the plaintiffs, including existing non-active parties to the proceedings such as AECOM and other parties such as the project managers. Any such cross-claim was now also arguably statute-barred by s 6.20 of the EPAA.
The position is different, I think, in respect of the proposed claim for equitable contribution. This is a new cause of action. Equitable contribution is only granted between parties sharing a common obligation to make good the ‘one loss’, where the liabilities are of the same nature and to the same extent: Friend v Brooker (2009) 239 CLR 129; [2009] HCA 21 at [40], [48] per French CJ, Gummow, Hayne and Bell JJ. Rights to contribution are not attracted “merely because they are owed to the same party and related to the same transaction or otherwise connected in time or circumstance”: at [48].
The contractual regime in respect of which equitable contribution is now sought is in respect of the first and second contracts. That is, these contracts were executed in 2014 and 2015. The proposed claim may be statute barred. But that is not why I consider that leave to amend should be refused. Other parties to the 2014 contractual regime included AECOM and the certifier. Other parties to the 2015 contractual regime were WSP and McKenzie. The architect says that it is prejudiced as it would have sought further discovery and joined additional parties. There does not appear to have any warrant for exposing the architect to the suggested prejudice in the absence of any explanation as to why this additional cause of action is sought to be added so late in the day.
The insurers will also need to consider the prejudice that they may suffer as a result of late notification. Where the proceedings were commenced against the builder more than five years earlier, such prejudice may be significant. In particular, the insurers may have exercised their rights under the policies to take over the running of builder’s defence and cross-claim. The forensic decisions as to which parties may have been the subject of the cross-claim would have been different, where the fifth cross-defendant was an insured.
The insurers might have claimed against additional cross-defendants, such as TTW, against whom the Underwriters have obtained evidence from Colin Lim. It is likely that any such claims are now out of time. The Underwriters may not have settled claims against the fire engineers, against whom the Underwriters have obtained evidence in the form of a report from Anthony Enright. If the builder has released those parties in its settlements with them, then the insurers are further prejudiced.
Further, the insurers submitted that they have defended the claim against them as the insurers of the façade installer. The evidence served by the insurers deals solely with the claim against the façade installer. If the builder is now permitted to seek indemnity as the insured, then the insurers will need to consider the interests of the builder as an insured, as opposed to the party claiming against the insured. The builder’s interests are prima facie in conflict with insurers’ current position defending the claim against the façade installer.
Finally, the insurers submitted that the builder was not prejudiced by the refusal of the amendment as it could seek indemnity against the insurers in separate proceedings or after judgment in these proceedings, where the builder and insurers are bound by any findings on the cross claim. Similarly, the insurers opposed the additional claim in para 99 for the builder’s costs of defending the claim by the plaintiffs. This should be refused for the same reasons and also because the claim has not crystalised or been particularised. Clause 5.15 of the policy also excluded liability which was covered by a separate policy of insurance. The builder is insured by Zurich.