The University of Sydney v Multiplex Constructions Pty Ltd (No 4)

Jurisdiction: Equity - Technology and Construction List

Before: Nixon J

Decision: Leave granted to Plaintiff to rely on further evidence – leave granted for Plaintiff to file amended List Statement – Plaintiff to pay Defendant’s costs thrown away by reason of amendment, otherwise costs of motion be costs in the cause.

Catchwords: CIVIL PROCEDURE – Pleadings – amendment – Plaintiff sought leave to amend claim to raise further alleged defects in building works – whether the delay in raising those matters has been explained – whether the grant of leave would cause prejudice to Defendants – whether the proposed amendments would lead to loss of the hearing date – whether First and Second Defendants have lost, by expiry of long-stop period, a viable and realistic cross-claim in respect of the alleged defects – no substantial prejudice established – leave granted

Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56, 57, 58, 64, 65
Environmental Planning and Assessment Act 1979 (NSW) s 6.20
Design and Building Practitioners Act 2020 (NSW)

Cases Cited: BRJ v The Corporate Trustees of the Diocese of Grafton [2022] NSWSC 1077
Creevey v Barrois [2005] NSWCA 26
Kelly v Mina [2014] NSWCA 9
Onerati v Phillips Constructions Pty Ltd (in liq) (1989) 16 NSWLR 730
Pafburn Pty Ltd v The Owners – Strata Plan No 84674 [2024] HCA 49

Category: Procedural rulings

Parties: The University of Sydney (Plaintiff/Applicant)
Multiplex Constructions Pty Ltd (First Defendant/Respondent)
Brookfield Australia Investments Limited (Second Defendant/Respondent)
Francis-Jones Morehen Thorp Pty Ltd (Third Defendant/Respondent)
Surface Design Consulting Pty Ltd as trustee for Surface Unit Trust (in liquidation) (Fourth Defendant/Respondent)
Arup Pty Limited (Fifth Defendant/Respondent)
McKenzie Group Consulting (NSW) Pty Ltd (Sixth Defendant/Respondent)
Chevalier (Aluminium Engineering) Australia Pty Ltd (Seventh Defendant/Respondent)
Building Studio Architects Pty Ltd (Eighth Defendant/Respondent)
Building Certificates Australia Pty Ltd (Ninth Defendant/Respondent)

Representation: Counsel:
D Miller SC with L Shipway (Plaintiff)
T Breakspear SC with A Carr (First and Second Defendants/Respondents)
Solicitors:
Minter Ellison (Plaintiff/Applicant)
Baker McKenzie (First and Second Defendants/Respondents)
Colin Biggers & Paisley (Third Defendant/Respondent)
Moray & Agnew (Fourth Defendant/Respondent)
Lander & Rogers (Fifth Defendant/Respondent)
Carter Newell Lawyers (Sixth Defendant/Respondent)
Gadens Lawyers (Seventh Defendant/Respondent)
Clyde & Co Australia (Eighth Defendant/Respondent)
Mills Oakley (Ninth Defendant/Respondent

File Number(s): 2019/00401010

Publication restriction: Nil

JUDGMENT

1. This proceeding concerns alleged defects in the construction of a six-storey multidisciplinary research and education centre known as the “Charles Perkins Centre” which is located on the University of Sydney’s campus in Camperdown, NSW (the CP Centre).

2. The existing claims brought by the University essentially relate to defects in the panels used on the exterior facade of the CP Centre, which are alleged to have been combustible (Facade Panel Defects), and defects in the floor tiles used throughout the interior of the CP Centre, which are alleged to be drummy and delaminating (Floor Tile Defects).

3. By Notion of Motion filed 11 December 2025, the University seeks leave to rely on certain lay and expert evidence that was served late, and leave to file a Fourth Further Amended Technology & Construction List Statement (Proposed Amended List Statement).

4. There was no opposition by any Defendant to the grant of leave for the University to rely on the additional evidence, insofar as it relates to the existing claims in respect of the Facade Panel Defects and the Floor Tile Defects. That evidence was served several weeks late, but was served prior to a directions hearing at which this matter was set down for hearing later this year. It was not suggested that any prejudice would arise by reason of the lateness of this evidence insofar as it relates to the existing claims. I am satisfied that leave should be granted.

5. So far as the Proposed Amended List Statement is concerned, there was no opposition by any Defendant to those amendments which are proposed to be made in response to the decision of the High Court in Pafburn Pty Ltd v The Owners – Strata Plan No 84674 [2024] HCA 49, which was delivered since the last iteration of the List Statement was filed. These amendments only raise legal issues and do not expand the scope of the factual enquiry in this proceeding.

6. There was, however, opposition by the First and Second Defendants (together, Multiplex) to the Proposed Amended List Statement insofar as the University sought to introduce new claims in relation to:

7. the insulation used in the CP Centre, which is alleged to have been combustible (the Combustible Insulation Defect); and

8. alleged defects in respect of the construction of the suspended ceiling of the CP Centre (the Suspended Ceiling Defect).

9. If the University is given leave to amend to raise the Combustible Insulation Defect, it will follow that it is also given leave to rely on its proposed evidence in relation to that issue (all of which was served prior to 21 November 2025). The University has yet to serve any lay or expert evidence in relation to the Suspended Ceiling Defect.

10. The value of the Combustible Insulation Defect is said to be $2.9m, based on the costs of rectification works which have been completed, while the value of the Suspended Ceiling Defect is currently estimated to be in excess of $80m.

Relevant Principles

9. The relevant principles were not in dispute. The Court’s discretionary power to grant leave to amend a pleading is subject to the dictates of justice in s 58 of the Civil Procedure Act 2005 (NSW) (CPA), which requires the Court to have regard to the overriding purpose set out in s 56 and the objects of case management set out in s 57.

10. It is sufficient for present purposes to refer to the following summary of the relevant principles, upon which Multiplex relied, which is taken from the decision of Barrett JA (with whom Ward JA (as her Honour then was) and Leeming JA agreed) in Kelly v Mina [2014] NSWCA 9 at [47]-[48]:

“Particularly in light of the opening words of s 64(2), it is not controversial that the provisions in Part 6 Division 1 of the Civil Procedure Act were binding on the primary judge and that, in accordance with s 58, his Honour was bound to seek to act in accordance with the dictates of justice and, in so doing, to have regard to s 56 concerning the ‘overriding purpose’ of the Act and rules of court in their application to civil proceedings; also that, in addressing the amendment application in the particular statutory context, his Honour was required to take into account a combination of factors identified by the High Court in Aon Risk Services Pty Ltd v Australian National University (2009) HCA 29: (2009) 239 CLR 175 and usefully summarised by Vickery J in Namberry Craft Pty Ltd v Watson [2011] VSC 136 (at [38]) as follows:

‘(a) Whether there will be substantial delay caused by the amendment;

(b) The extent of wasted costs that will be incurred;

(c) Whether there is an irreparable element of unfair prejudice caused by the amendment, arising, for example, by inconvenience and stress caused to individuals or inordinate pressures placed upon corporations, which cannot be adequately compensated for, whatever costs may be awarded;

(d) Concerns of case management arising from the stage in the proceeding when the amendment is sought, including the fact that the time of the court is a publicly funded resource, and whether the grant of the amendment will result in inefficiencies arising from the vacation or adjournment of trials;

(e) Whether the grant of the amendment will lessen public confidence in the judicial system; and

(f) Whether a satisfactory explanation has been given for seeking the amendment at the stage when it is sought.’

As this Court has emphasised more than once, Part 6 Division 1 of the Civil Procedure Act made substantive and important changes to the law so that considerations of promptness and efficiency in the conduct of civil litigation are afforded a new and special importance which may sometimes provoke a sense of injustice in a party who has failed to proceed with despatch: see, for example, Dennis v Australian Broadcasting Corporation [2008] NSWCA 37; Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243 at [160]-[161]; Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230; Halpin v Lumley General Insurance Ltd [2009] NSWCA 372; Bi v Mourad [2010] NSWCA 17; Richards v Cornford (No 3) [2010] NSWCA 134.”

Combustible Insulation Defect

11. The Combustible Insulation Defect was discovered when rectification work was done in respect of the Facade Panel Defects, after the University received a Fire Safety Order in February 2022. In short, upon removing the facade panels, access was gained to the insulation behind those panels, which was assessed to be combustible, with the result that variations were raised in late 2023 for this insulation to be removed and replaced. An additional sum of around $2.9m was incurred by the University for this rectification work.

12. On 2 May 2024, the University informed all parties that it considered the insulation to be combustible in breach of Multiplex’s obligations.

13. During the period from April 2024 to August 2025, the parties were engaging in settlement discussions. This was described as a “hiatus” in the proceeding, meaning that during this period no party sought any orders from the Court regarding the further conduct of this proceeding.

14. When this “hiatus” ended in August 2025, the University informed Multiplex that it intended to serve evidence, including expert reports, in relation to the Combustible Insulation Defect.

15. The University served all of its proposed evidence in chief in relation to the Combustible Insulation Defect, including all of the expert reports on which it proposes to rely in respect of liability and quantum, in advance of 21 November 2025, when this matter was listed for directions in the Technology and Construction List.

16. At the directions hearing on 21 November 2025, Counsel for the University resisted the proceeding being allocated a hearing date at that time, on the basis that there was an additional “extensive defect which is not currently the subject of evidence”, and this needed “to be dealt with”. (It was common ground on the hearing of the present application that this was a reference to the Suspended Ceiling Defect, rather than the Combustible Insulation Defect.)

17. In response to this submission, Peden J observed that, in circumstances where the timetable “has everything happening by the end of this year” (namely, 2025) in respect of existing claims, this would leave “a year to deal with everything” (that is, to deal with the additional issues flagged by Counsel for the University). Multiplex did not, in response, advance any contention that this would be an insufficient period to deal with, in particular, the proposed Combustible Insulation Defect. There was an issue raised by the Eighth Defendant regarding the time that would be required to investigate the alleged Suspended Ceiling Defect. Her Honour determined to set the matter down for a three-week hearing commencing on 26 October 2026, but stated at the time that if the University took steps to amend its pleading to raise the new defects to which reference had been made, “then everything may be revisited”.

18. On the present application, Multiplex did not raise any limitation issue in respect of the Combustible Insulation Defect claim, and in particular, did not dispute the University’s submissions that:

19. insofar as the Combustible Insulation Defect is relied upon for the University’s existing breach of contract claim, it is merely a further particular of the breach that is already pleaded (see Onerati v Phillips Constructions Pty Ltd (in liq) (1989) 16 NSWLR 730 at 746-747 per Giles J; Parkview Constructions Pty Ltd v The Owners – Strata Plan 90018 [2023] NSWCA 66 at [90] and [100]-[103] per Leeming JA (Ward P and Simpson AJA agreeing)), and therefore can be dealt with under s 64 of the CPA; and

20. insofar as the Combustible Insulation Defect is relied upon for the University’s claims in negligence, including under the Design and Building Practitioners Act 2020 (NSW), these claims arise from the same (or substantially the same) facts as those giving rise to the existing claims (within the meaning of s 65 of the CPA), because the claims in respect of the facade panels and the insulation both concern material used in the construction of the external walls which is alleged to have been combustible and therefore non-compliant with the Building Code of Australia.

21. Multiplex raised two matters in opposition to the proposed amendments in respect of the Combustible Insulation Defect.

22. The first was the absence of an explanation for the delay in making these amendments, in circumstances where the issue was known to the University from late 2023, and the second was the possible impact on the hearing date.

23. As regards delay, the evidence discloses that:

24. the University only became aware of the need to remove and replace the insulation in the second half of 2023, in the course of rectification work being done on the facade;

25. in December 2023, the University informed Multiplex of the variations which had been agreed by the University in respect of the rectification works (which included the variations for the removal and replacement of the insulation);

26. in early May 2024 – that is, at around the beginning of the “hiatus” period, during which settlement discussions took place – the University informed Multiplex that it considered the combustible insulation to be in breach of Multiplex’s obligations, and provided a sample of the insulation to Multiplex;

27. in early August 2025 – that is, around the time when the “hiatus” period came to an end – the University notified Multiplex that it would be serving expert evidence in respect of the Combustible Insulation Defect; and

28. in November 2025, the University served this evidence, prior to the matter being set down for hearing and prior to providing its Proposed Amended List Statement which included a claim in respect of the Combustible Insulation Defect.

29. It is plain from this chronology that, leaving aside the “hiatus” period, the University has moved with reasonable despatch since becoming aware of the Combustible Insulation Defect.

30. Although I accept, in general terms, Multiplex’s submission that settlement discussions do not pause a litigant’s obligations under the CPA, the present case is one in which it appears that there was some understanding between the parties that no step would be taken in the proceeding in the “hiatus” during which settlement was explored, since no party approached the Court in that period to seek any orders regarding the conduct of this proceeding.

31. Further, any delay is of particular concern where it causes prejudice to another party. There was no submission that Multiplex would suffer any specific prejudice in the event that the University was granted leave to bring a claim in relation to the alleged Combustible Insulation Defect at this stage of the proceeding (such as loss of any potential cross-claim that might have been able to be brought at an earlier point in time).

32. The only potential prejudice identified by Multiplex in respect of the Combustible Insulation Defect was that the grant of leave to amend so as to raise this issue may put the hearing date at risk. In support of this submission, Multiplex provided an aide memoire to the Court setting out the steps which would need to be taken in the proceeding in the event that leave was granted to bring the Combustible Insulation Defect claim. The estimates of the time required for each of those steps were based on the unchallenged evidence of Multiplex’s solicitor, Mr O’Brien. Those steps were as follows:

33. by the end of June 2026 – Multiplex’s lay and expert evidence is served (four months after the proposed leave is granted);

34. by the end of August 2026 – the University’s reply evidence is served (estimated by Mr O’Brien to take two months);

35. by the end of September 2026 – discovery is completed (based on a one-month estimate, with this task only being undertaken after the completion of reply evidence); and

36. by the middle of November 2026 – expert conclaves and preparation of joint reports (based on an estimate of 6 weeks, with this process only being undertaken at the end of discovery).

37. I accept the University’s submission that, having regard to the dictates of ss 56-58 of the CPA and the expectations of this List, it would be possible for this proceeding to be case managed in such a way that the problems apparently caused by this sequencing of steps could be overcome, such that the existing hearing date could be maintained. In particular, it may be that, instead of ordering that reply reports be served, an order is made that the experts meet in conclave and prepare joint reports after Multiplex’s evidence is served. This would immediately save two months from the above timeline, with the result that evidence, discovery and joint reports would, on Multiplex’s own evidence, be completed by around six weeks before the hearing is scheduled to commence. If necessary, the completion date could be brought forward another four weeks, by any discovery being undertaken in parallel with, rather than prior to the commencement of, the expert conclave process.

38. In the absence of Multiplex establishing that it will suffer any substantial prejudice in the event that leave is granted to bring the Combustible Insulation Defect claim at this stage of the proceeding, I do not consider that any delay by the University in taking steps to amend its List Statement to raise this issue, during the “hiatus” period while settlement was being explored, provides a sufficient basis for refusing leave to bring this claim. That is particularly so where the Combustible Insulation Defect claim is a claim for a substantial sum of money, which arises out of similar facts and circumstances as the existing claim in respect of the Facade Panels Defect.

39. Accordingly, I am satisfied that the University should be granted leave to amend its pleading to bring the Combustible Insulation Defect claim. It follows that leave will also be given to the University to rely on the evidence which it has already served in relation to this claim.

Suspended Ceiling Defect

29. The particulars of the proposed Suspended Ceiling Defect are pleaded as follows in para 31(b)(iv) of the Proposed Amended List Statement:

“Suspended Ceiling

(A) suspended ceiling installed in the CP Centre that is defective in that:

I. there are insufficient hanger-rods, in terms of number and placement and spacing, to appropriately support the ceiling;

II. metal angles installed at the interface of different ceiling types result in the weight of the tiled ceiling system being transferred to the plasterboard ceilings, which has caused and will cause the plasterboard ceilings to deflect and/or deform and (an increased risk of collapse);

III. non-proprietary, incompatible and inadequate fittings and materials have been used for the connections within the support frames;

IV. the connections between the ceiling rails within the support frames are not correctly installed;

V. screws connecting elements of the suspended ceiling have not been installed or screw connections have not been made correctly;

VI. insufficient fasteners have been installed between the plasterboard ceilings and steel stud-wall frames;

VII. ceiling hanger rods have been installed such that they are supported by the bulkhead members instead of the concrete soffit;

VIII. the fixings of the ceiling hangers into the concrete soffits do not have the appropriate seismic rating required by the Robert Bird Group Structural Design Brief 11, Structural Specification S-200(J) (Ceiling Specification);

IX. a substantial number of drive pin fixings of the ceiling hangers into the concrete soffit did not provide the minimum design capacity of ceiling hangers as required by AS2785;

X. a substantial number of ceiling hangers have been installed skewed rather than vertical as required by AS2785; and

XI. a substantial number of ceiling hangers were not connected to the support frame and therefore provide no support to the support frame.”

30. At the commencement of the hearing of its amendment application, the University indicated that it only sought leave to bring a breach of contract claim in respect of the Suspended Ceiling Defect, and not a tortious claim (as had previously been proposed). It handed up a form of Proposed Amended List Statement which reflected this change.

31. With that change, Multiplex did not make any submission that the proposed amendments were outside the limitation period (as had been raised in respect of the previously proposed tortious claim).

32. Instead, Multiplex advanced three main submissions as to why leave should not be granted:

33. first, there had not been an adequate explanation for the delay in bringing the Suspended Ceiling Defect claim, in circumstances where the University was aware of issues with the suspended ceiling since 2015;

34. secondly, the grant of leave would cause irremediable prejudice to Multiplex, as Multiplex has lost, by reason of the University’s delay in bringing the Suspended Ceiling Defect claim, the opportunity to bring a potential cross-claim against the subcontractor who installed the suspended ceiling (namely, Cubic Interiors NSW Pty Ltd (in liq)) and its insurers; and

35. thirdly, the granting of leave would likely result in an adjournment of the hearing date.

36. It is convenient to deal with the last issue first, as it bears similarities with the submissions already addressed above in respect of Combustible Insulation Defect.

37. There was affidavit evidence from the University that it will be able to serve its liability expert evidence in respect of the Suspended Ceiling Defect by late March 2026, and its quantum evidence in a staged process, with the first stage being served by 31 March 2026, the second by 15 April 2026, and the last by 30 April 2026. The University sought orders requiring the service of its evidence by those dates.

38. Multiplex again relied on Mr O’Brien’s estimates of the time required for the steps to be taken upon receipt of this evidence, which resulted (according to Multiplex’s aide memoire) in the following timeline:

39. by mid-July 2026 – Multiplex’s lay and expert liability evidence is served;

40. by the end of August 2026 – Multiplex’s quantum evidence is served;

41. by the end of October 2026 – the University’s reply evidence is served;

42. by the end of November 2026 – discovery is completed; and

43. by mid-December 2026 – expert conclaves and joint reports are completed (based on a 6-week period commencing at the end of reply evidence).

44. For the reasons given at paragraph [26] above, I am of the view that it would be possible for this matter to be case-managed so as to address the apparent problems created by this timeline and thereby maintain the current hearing date. For example, if reply evidence is dispensed with (and all other steps are maintained), the timeline would be complete by mid-October 2026, and therefore in advance of the hearing. Further, this completion date would be brought forward by another two weeks if the time for Multiplex’s expert evidence on quantum in respect of the Suspended Ceiling Defect claim were to run from the time when the second (rather than the third and final) stage of the University’s quantum evidence is served. This would result in all joint reports being received by around four weeks before the hearing.

45. In addition, there is no apparent reason why the conclave and joint report of the liability experts could not occur in advance of the conclave and joint report of the quantum experts. Adopting the six-week period estimated by Mr O’Brien, this would result in the joint report on liability being received by the end of August 2026, and therefore around two months before the commencement of the hearing.

46. For those reasons, I am not satisfied that, if leave is granted, the existing hearing date would not be able to be maintained. Further, even if I had determined that the existing hearing date would be lost, I would not have considered this to be a sufficient basis to refuse leave to amend, in circumstances where a hearing date was sought by Multiplex after being notified of the University’s intention to bring the Suspended Ceiling Defect claim, and where Peden J observed, at the time that the hearing date was set, that it may need to be revisited in the event that the University sought leave to bring the Suspended Ceiling Defect claim.

47. As regards the remaining matters on which Multiplex relied in opposing the grant of leave in respect of the Suspended Ceiling Defect claim, the issues of delay and the loss of a potential cross-claim against Cubic are related, and it is necessary to set out the relevant timeline in some detail. I have done so by reference to a number of milestone events, to which Multiplex referred in the course of its submissions.

Events prior to commencement of proceeding

40. The first such milestone is the commencement of this proceeding in December 2019.

41. Prior to that time, there had been a number of incidents in respect of the suspended ceiling which had come to the University’s attention.

42. The first was a relatively minor incident in March 2015, when a person appears to have been doing some work in the ceiling of the CP Centre and leant on a grid which gave way, causing some tiles to fall. The University engaged an engineer from ARUP Pty Ltd, who reported that there had been a localised failure, in circumstances where the framing had not been properly clipped and secured.

43. The second incident occurred in August 2015, when an isolated area of the suspended ceiling collapsed, once again apparently while someone was doing work. Multiplex was advised of this incident, and Cubic attended the site and repaired the ceiling. As a result of this incident, the University requested that Multiplex complete a review of other ceilings in the CP Centre and provide a report.

44. On 19 August 2015, Cubic provided a report to Multiplex, which was in turn provided to the University (Cubic Report). This report stated that Cubic and Multiplex had conducted an inspection of the suspended ceiling and noted that other ceiling hangers in the area “appeared to be sound and in good working order” and that, other than the “small localise[d] issue” that had been identified, the ceiling appeared “to be in good state with correct hanger supports”. Cubic also reported that, following the inspection, it had formed the “considered opinion” that the failure that had occurred was “an isolated incident with unexplained reason”.

45. On the same date, Cubic issued a “Certificate of Compliance – Design and Installation of a Building Element”, which certified, inter alia, that all of the relevant work had been completed in accordance with the Building Code of Australia, Australian standards, the “Design Documents”, and Multiplex’s obligations under the head contract.

46. There were no further incidents with respect to the suspended ceiling for a period of around two years after the Cubic Report and Certificate of Compliance were issued.

47. On 6 September 2017, there was a partial collapse of the ceiling in the basement lift lobby. On 11 September 2017, Multiplex inspected the affected area and expressed the view to the University that a missing hanger “had been removed for some works and not re-installed, adding load to the middle hanger”, which caused the collapse.

48. On 13 September 2017, ARUP provided a report to the University in relation to this incident (ARUP Report). ARUP stated that “the anchor for the hanger” had “locally failed” resulting in the collapse in this area, and that a closer inspection of the failed anchor location indicated that the embedment depth was very low, partially due to damaged concrete, which had likely contributed to the “pull-out” failure that had occurred. ARUP raised a concern that “the capacity of the installed anchors are close to capacity limit”, and recommended that certain investigations be taken in respect of a suspected “inadequate anchor system”, including an inspection of the existing ceiling system for “conical failures around the shot-fired anchors” and engaging a qualified engineer to conduct a design check in relation to the shot-fired anchors.

49. There is no evidence that these steps were taken. However, it is not apparent that the failure to take those steps was of any significance. That is because when, in 2024, the University did engage a firm to undertake an inspection of the suspended ceiling (and not an inspection limited to the shot-fired anchors), no issue was identified in respect of the shot-fired anchors. Further, none of the particulars of the Suspended Ceiling Defect claim allege defects in respect of the shot-fired anchors.

50. The only other reports of incidents in relation to the suspended ceiling prior to the commencement of the proceeding in December 2019 were:

51. a report in March 2018 that the ceiling appeared “to be sagging” in an area where heavy equipment was located, which was described as being caused by the machinery in question; and

52. a report in September 2018 that there was a “dip identified in the ceiling”, which appeared to be caused by the manner in which one particular beam was supported.

53. Having regard to the matters set out above, I am satisfied that, as at the commencement of this proceeding in December 2019, the University was not aware of the Suspended Ceiling Defect (as particularised in the Proposed Amended List Statement), and was not aware of matters which, acting reasonably, would have alerted it to this Defect. The only incidents which had occurred were described to the University as events of localised failure, which had specific (and different) causes, and the University had been provided, by Multiplex, with statements from Cubic that the ceiling works complied with the head contract and were “sound”.

Period prior to Cubic going into liquidation in December 2021

52. The second milestone event was in November 2021, when Cubic was declared insolvent by its director and placed into liquidation.

53. There was no evidence of any further incidents being reported with respect to the ceiling in the period of around two years between the proceeding being commenced and Cubic being placed into liquidation.

54. It follows that the position as at this second milestone event was the same as the position as at the first.

Period prior to Long-Stop Date in December 2023

55. The third milestone event was the expiry of the ten-year “long-stop” period prescribed by s 6.20 of the Environmental Planning and Assessment Act 1979 (NSW). Because the Certificate of Practical Completion for the CP Centre is dated 20 December 2013, this period expired on 20 December 2023 (Long-Stop Date). After that point in time, no claim could be brought against Cubic in respect of the suspended ceiling works.

56. In the period leading up to this third milestone event, there were two further incidents reported to the University with respect to the suspended ceiling.

57. First, in February 2022, it was reported that a particular area of the suspended ceiling was “bowed”, which appeared to be the result of a water leak.

58. Secondly, in May 2023, an area of ceiling in an equipment room collapsed. This appears to have been the first incident involving a collapse of any part of the suspended ceiling since September 2017.

59. Mr Derek Jacobs, who has held the role of Head of Facility Services at the University since August 2021, gave evidence that, at the time of this incident occurring in May 2023, he did not think it was due to a problem with the ceiling, but rather was a problem with the light fitting that had been installed in this location.

60. Mr Jacobs subsequently, in around mid-2023, came to learn of the other incidents which had occurred in relation to the suspended ceiling of the CP Centre in the period from 2015 to 2022 (being those incidents described above). Having learned of those matters, Mr Jacobs implemented, from September 2023, weekly visual inspections of the ceilings. These inspections identified a number of issues such as cracks, deflections and sagging in the suspended ceiling.

61. In November 2023, Mr Jacobs decided to engage a consultant, Norman Disney Young (NDY), to investigate and provide an opinion on the cause of the failures in the suspended ceiling of the CP Centre. NDY first inspected the suspended ceiling in around January 2024.

62. Having regard to the matters set out above, I am satisfied that, as at the expiry of the Long-Stop Date in December 2023, the University, although on notice that there was an issue with the suspended ceiling which required investigation, was not aware of the Suspended Ceiling Defect which is pleaded in the Proposed Amended List Statement.

Events up to November 2025

63. NDY provided a report to the University on 15 March 2024 (NDY Report). The NDY Report identified a number of failures in the construction of the suspended ceiling, including insufficient installation of ceiling support hanger rods, non-proprietary connections between ceiling frame support members, and general poor workmanship. (The particulars to the pleading of the Suspended Ceiling Defect in the Proposed Amended List Statement are drawn from the NDY Report.)

64. The Appendix to the NDY Report shows that the inspection conducted by NDY for the purposes of this report was confined to only a limited number of areas of the suspended ceiling.

65. In May 2024 (that is, during the “hiatus” period in this proceeding), the University engaged Hansen Yuncken to undertake early investigation and planning on the scope of works that would be required to rectify or replace the suspended ceiling.

66. Hanson Yuncken reported on the results of their early investigation planning phase in August 2024. Following this, NDY was engaged in around late 2024 to undertake a further detailed investigation of the suspended ceiling in the vacant teaching space on level 1 of the CP Centre.

67. Further investigations followed during the first half of 2025, which it is unnecessary to describe in detail, as a result of which the University reached the view that the ceiling should be replaced rather than repaired.

68. It is unclear, on the evidence, precisely when Multiplex was informed of the Suspended Ceiling Defect.

69. On 18 November 2025, Multiplex’s solicitors informed the other parties in the proceeding that they were instructed to seek an order setting the matter down for hearing at the directions hearing on 21 November 2025. On 20 November 2025, the University’s solicitors responded, stating as follows (emphasis added):

“3. … If such an order [being an order setting the matter down for hearing] is proposed by [Multiplex], we can only assume that it is in response to the University’s advice that it is investigating further significant defects in the building…

4. These defects have been disclosed on a without prejudice basis…”.

70. Having regard to the terms of this correspondence, it appears that Multiplex was informed of the proposed Suspended Ceiling Defect claim, during the course of “without prejudice” communications, at some time prior to Multiplex notifying the other parties, on 18 November 2025, that it intended to seek an order setting the matter down for hearing when the matter was next before the Court for directions on 21 November 2025.

Delay

71. I am satisfied that the delay in bringing the Suspended Ceiling Defect claim has been adequately explained.

72. As set out above, up until 2023, the University was only aware of a handful of isolated incidents in respect of the suspended ceiling, in some cases several years apart, which had been described as instances of localised failure, and had been attributed a number of distinct causes. Further, the University had received, from Multiplex, the Cubic Report and the Certificate of Compliance, which stated that the suspended ceiling work was sound and had been completed in accordance with the head contract.

73. Another incident in mid-2023 prompted the undertaking of visual inspections in the latter part of that year, which in turn led to the engagement of NDY, and the identification of the issues regarding the construction of the suspended ceiling which are set out in the NDY Report. The NDY Report was received shortly before the commencement of the “hiatus” period in this proceeding. During this period, the University continued to conduct investigations, involving a number of consultants, following which it notified Multiplex, in the course of “without prejudice” communications, of its proposed Suspended Ceiling Defect claim.

Loss of Potential Cross-Claim

74. In Creevey v Barrois [2005] NSWCA 264 at [56], Basten JA (with whom Handley and McColl JJA agreed) stated as follows (emphasis added):

“…an assumed loss of a right to cross-claim against a joint tortfeasor will give rise to significant prejudice sufficient to render it unjust to allow a claimant to proceed out of time, but only where the possible claim for contribution has been shown to be viable and realistic, rather than a fanciful or theoretical possibility.”

75. Whether there is a “viable and realistic” cross-claim depends not only on the prospects of establishing liability, but on the prospects of recovery. In BRJ v The Corporate Trustees of the Diocese of Grafton [2022] NSWSC 1077 at [129], Garling J stated that:

“In this case, however, I am not persuaded that the unavailability of the Cross-claim amounts to ‘significant prejudice’ which should be given any weight in determining the Trustees Motion. That is because I cannot be sure that it was a “viable and realistic” and not merely ‘fanciful or theoretical’ cross-claim, partly because, as it seems to me, any judgment against the cross-defendant would likely be worthless: cf Mabbett v Josef & Sons Contracting Pty Ltd [2006] NSWSC 1452 at [121].”

76. Cubic was placed into liquidation in November 2021, with more than $34m in liabilities. Since that time, there has been no realistic prospect, absent a policy of insurance which covered the relevant liability, of any cross-claim being brought against Cubic which might result in any recovery by Multiplex.

77. That leads to the question as to whether or not there is a sufficient basis to conclude, on the evidence presently before the Court, that there is more than a theoretical possibility that such a policy existed, which would have responded to a cross-claim brought by Multiplex in respect of the Suspended Ceiling Defect.

78. The existence of any such policy was a matter which Multiplex was well-placed to investigate. Clause 18(a) of the S****ubcontract between Multiplex and Cubic provided as follows:

“Before commencing work under the Subcontract, the Subcontractor shall purchase and maintain insurance on terms and with an insurer acceptable to Multiplex in respect of the following:

(i) Contract Works insurance covering physical loss or damage to the Subcontract Works, but only to the replacement value of the Subcontract Works or the amount stated in Item 23A of Annexure Part A, whichever is the lesser;

(ii) General Public and Products Liability insurance covering legal liability to pay for personal injury and property damage out of or in connection with the execution of the work under the Subcontract with a limit of cover not less than the amount stated in Item 23B of Annexure Part A on an occurrence basis;

(iii) Motor Vehicle insurances to cover personal injury and property damage arising from the use of any motor vehicles or other mobile equipment used in or about the execution of the work under the Subcontract including compliance with any Law and with a limit of cover (in respect of third party property damage only) of not less than the amount stated in Item 23C of Annexure Part A;

(iv) Workers Compensation and Common Law insurance in accordance with Law in respect of the Subcontractor’s liability for any loss or claim by any person employed or otherwise engaged by it in or about the execution of the work under the Subcontract;

(v) Professional Indemnity insurance covering liability for any act, error or omission arising out of or in connection with the professional business practice of the Subcontractor, with a minimum of coverage of the amount stated in Item 23D of Annexure Part A for any one claim and in the aggregate, with one automatic reinstatement of the aggregate limit; and

(vi) if work under the Subcontract includes any work involving asbestos or asbestos decontamination, including stripping, encapsulation or removal, a liability policy of insurance covering asbestos removal on an occurrence basis with a limit of cover of not less than the amount stated in Item 23F of Annexure Part A.”

79. It is a corollary of the requirement that Cubic would purchase such policies on terms that were “acceptable” to Multiplex, that Multiplex would be consulted about the terms of each such policy.

80. Further, cl 18(e) stated that:

“when required by Multiplex, the Subcontractor will provide full copies of the insurance policies arranged (including any schedules, endorsements or other documents affecting the operation or interpretation of such policies)”.

81. The University’s amendment application has been on foot for around two-and-a-half months. Multiplex has had ample time to ascertain the insurance position of Cubic.

82. Multiplex did not, in its evidence on this application, provide the terms of any insurance policy in the name of Cubic. Nor did Multiplex lead any evidence of any searches being made of Multiplex’s records for copies of any such policy, nor any evidence of enquiries being made of Cubic’s liquidator regarding the terms of any such policy.

83. Instead, at the hearing of the University’s application, Multiplex tendered a “Certificate of Currency” issued by Resource Underwriting Pacific Pty Ltd and dated 30 August 2013, which relevantly stated as follows:

“THE INSURED: FORIS PTY LTD trading as CUBIC INTERIORS, CUBIC PROJECTS PTY LTD

PROFESSIONAL BUSINESS: Advice & design in respect to modifications & alterations for internal fit outs and manufacturers specifications

…

TYPE OF INSURANCE: Professional Indemnity

CONTRACT WORDING: RUPPL – D&C Wording (Oct 10)

PERIOD OF INSURANCE: 31 August 2013 to 31 August 2014 at 4:00PM Local Standard Time

LIMIT OF INDEMNITY: $10,000,000 each and every claim and in the aggregate any one Period of Insurance

…

COVERAGE/EXTENSIONS: As Per Contract Wording and/or Endorsements attaching to and forming part of the Certificate.”

84. Multiplex did not lead any evidence of the searches undertaken in order to locate this document, or in what file it was located (or whether any such file contained other documents relevant to the insurance position). Nor was there any evidence that, for example, Multiplex’s solicitors have, since this document was located, made any enquiry of Resource Underwriting regarding the relevant policy wording.

85. As matters stand, it is not known whether the insurance which is the subject of the Certificate of Currency was a claims made and notified policy, in which case it would have no application to any claim notified after 31 August 2014. Multiplex referred to the fact that cl 18(e) of the Subcontract required Cubic to ensure that any insurance referred to in cl 18(a)(v) (that is, any professional indemnity insurance) would be maintained for not less than seven years following the last date for delivery of a Security Release Notice pursuant to cl 42.6 of the Subcontract. However, there is no evidence as to whether or not there was compliance with cl 18(e), despite this clause obliging Cubic to provide Multiplex, on request, with the full terms of any policy.

86. Similarly, the scope of the insuring clause and of any exclusions are unknown. That is a significant matter, particularly where most of the particulars of the Suspended Ceiling Defect (see para [29] above), when read in conjunction with the NDY Report by reference to which those matters are particularised, appear to be matters of poor or defective workmanship, rather than matters of defective design (such as might, depending on the policy’s terms, be covered by a policy of “Professional Indemnity” insurance).

87. Finally, it is unknown whether, as at the time that the Long-Stop Date passed, there had been other claims in respect of the professional indemnity insurance referred to in the Certificate of Currency, such that the aggregate limit of indemnity had already been exhausted.

88. Having regard to those matters, I am not satisfied that Multiplex has established that it had, as at the Long-Stop Date, a viable and realistic Cross-Claim against Cubic, to which a policy of insurance would have responded.

89. It follows that I am not satisfied that Multiplex will suffer any substantial prejudice by reason of the University being granted leave to bring the Suspended Ceiling Defect claim at this stage of the proceeding.

Conclusion – Suspended Ceiling Defect

90. In circumstances where:

91. Multiplex has not established that it will suffer any specific prejudice if the University is granted leave to amend its breach of contract claim in respect of the CP Centre, so as to advance a new particular of breach, relating to the Suspended Ceiling Defect;

92. the Suspended Ceiling Defect claim is a claim for substantial damages, presently estimated to be in the amount of over $80m, and the refusal of leave to amend would mean that the University would be shut out from advancing this claim;

93. the University has led detailed documentary evidence regarding the history of incidents and investigations with respect to the suspended ceiling, which establishes that, prior to around the time when the “hiatus” period in this proceeding commenced, the University was not aware of the Suspended Ceiling Defect that is particularised in the Proposed Amended List Statement;

94. neither the University nor Multiplex sought, during the “hiatus” period when settlement was being explored, to obtain any orders from the Court regarding the progress of the proceeding;

95. Multiplex had been informed, prior to seeking an order that the matter be set down for hearing, that the University intended to bring the Suspended Ceiling Defect claim; and

96. on the basis of the parties’ estimates of the time required for evidence on the Suspended Ceiling Defect claim, the introduction of this claim will not result in the loss of the hearing date;

I am satisfied that the University should be granted leave to amend its List Statement so as to bring the proposed Suspended Ceiling Defect claim in this proceeding.

ORDERS

91. For those reasons, I will grant leave to the University to rely on the evidence served up to 20 November 2025, and will grant leave to file the Proposed Amended List Statement in the form provided to the Court at the hearing of the Motion.

92. I will also make the orders for pleadings and evidence proposed in the short minutes of order that the University provided to the Court, save that:

93. I will amend the orders in respect of Multiplex’s evidence to reflect, subject to para (2) below, the estimates in Mr O’Brien’s affidavit, as reflected in Multiplex’s aide memoire; and

94. in respect of Multiplex’s quantum evidence regarding the Suspended Ceiling Defect claim, I will adopt Mr O’Brien’s estimate of four months, but this period will run from the time when the University’s second (rather than third and final) tranche of quantum evidence is served.

95. I will not, at this stage, make any determination as to whether there should be expert reports in reply, or whether the experts should instead proceed, after service of Multiplex’s evidence, to meet in conclave and prepare a joint report. Those are matters that can be addressed as part of the case management of this proceeding at future directions hearings.

96. The University accepted that it should be ordered to pay the costs thrown away by the amendment.

97. However, the University submitted that it should be awarded its costs of the Notice of Motion, because its amendment application had been unsuccessfully opposed. Multiplex submitted that, in the event that leave was granted, it should nonetheless be awarded costs, on the basis that the University had sought an indulgence.

98. I consider that the appropriate order is that costs be costs in the cause. If the University’s claims are not ultimately established, then Multiplex should obtain its costs of the University seeking this leave to expand its claim.

99. For those reasons, I make the following orders:

100. The Plaintiff is granted leave to rely on its further and reply evidence served on the parties on 20 November 2025 as follows:

(a) affidavit of Glen Felstead dated 15 May 2024; (b) expert report of Colin Cass dated 17 November 2025; (c) expert report of Peter Karsai dated 18 November 2025; (d) expert report of Paulo Da Silva dated 20 November 2025; (e) expert report of Steven Halliday dated 20 November 2025; (f) expert report of Allan Harriman dated 20 November 2025; and (g) expert report of Per Olsson dated 20 November 2025.

2. Leave is granted to the Plaintiff to file and serve the proposed Fourth Amended List Statement in the form provided to the Court on 27 February 2026 (and marked for identification “MFI-1”).
3. The Defendants are to file and serve any List Response to the Plaintiff’s Fourth Amended List Statement by 30 March 2026.
4. The First and Second Cross-Claimants are to file and serve any amended Cross-Claims by 30 March 2026.
5. The Cross-Defendants (if any) are to file and serve any Cross-Claim List Response by 30 April 2026.
6. The Plaintiff is to serve any lay and expert evidence it intends to rely upon in respect of the Suspended Ceiling Defect claim, other than in respect of quantum, by 31 March 2026.
7. The Plaintiff is to serve any lay and expert evidence it intends to rely upon in respect of the quantum of the Suspended Ceiling Defect claim, in the stages described in the affidavit of Maciej Getta dated 24 February 2026, as follows:

(a) Stage 1: by 31 March 2026; (b) Stage 2: by 15 April 2026; and (c) Stage 3: by 30 April 2026.

8. The First and Second Defendants / First and Second Cross-Claimants are to serve any lay and expert evidence in respect of the Combustible Insulation Defect claim by 30 June 2026.
9. The First and Second Defendants / First and Second Cross-Claimants are to serve any lay and expert liability evidence in respect of the Suspended Ceiling Defect claim by 17 July 2026.
10. The First and Second Defendants / First and Second Cross-Claimants are to serve any lay and expert evidence in respect of the quantum of the Suspended Ceiling Defect claim by 14 August 2026.
11. The Plaintiff pay the costs thrown away by reason of the filing of the proposed Fourth Amended List Statement.
12. The costs of the Notice of Motion filed 11 December 2025 otherwise be costs in the cause.
13. The matter is listed for directions in the Technology and Construction List on Friday, 15 May 2026.

**********