Trangie-Nevertire Co-Operative Limited v Holcim Solutions and Products EMEA [2026] FCA 263

1. The applicant brings claims against the respondents which, inter alia, allege failure of a lining (the Geogard) supplied to it after it was informed about the product and its suitability for use in a 108 km canal system that provides irrigation services using water from the Macquarie River in Central West NSW. At the time of its supply and installation in 2012 to 2014, the applicant was provided various warranties signed by Firestone Building Products Europe Inc (the European entity) (the Warranties).
2. In summary, in September 2021, the Geogard failed to perform across several sections of the canal system such that the applicant alleged it was defective and/or did not meet the contract requirements. The applicant communicated with the European entity, on the basis it believed this was the entity it had been dealing with from 2011 to 2014. As I will return to below, it commenced proceedings against Holcim Solutions & Products EMEA (Holcim EMEA), in the belief that it was the only entity it had dealt with from 2011 to 2014. After commencing proceedings, the respondents, through their lawyers advised the applicant for the first time it had sued the wrong entity. Ultimately this led to further inquiries by the applicant which resulted in an amended originating application being filed on 25 July 2025 (which was in the form provided to the respondents on 5 May 2025). A statement of claim was filed on 5 May 2025, as the parties agreed the proceedings ought to be conducted on the basis of a statement of claim.
3. This application raises the following questions, in relation to the date on which the proceedings are taken to have been started for the purposes of the Federal Court of Australia Act 1976 (Cth) and the Federal Court Rules 2011 (Cth) (FCR).
   1. Is the start date of the applicant's claims against the second respondent 31 July 2024 or 21 May 2025?
   2. Is the start date for the applicant's misleading and deceptive conduct (MDC) damages claim against the first respondent 31 July 2024 or 21 May 2025?
   3. Is the start date for the applicant's negligence claim against the first respondent 31 July 2024 or 21 May 2025?
   4. Is the start date for the applicant's MDC compensation order claim against the first respondent 31 July 2024 or 21 May 2025?
   5. Is the start date for the applicant's breach of warranty damages claim against the first respondent 31 July 2024 or 21 May 2025?
4. The two alternate dates in the questions reflect the date the applicant commenced the proceedings by filing the originating application and concise statement on 31 July 2024 against Holcim EMEA, and the date of filing the amended originating application on 25 July 2025 (deemed to have started no later than 21 May 2025). The amended originating application added Amrize Building Envelope LLC (the American entity) as the second respondent.
5. As can be seen, the first question relates to the start date for the proceedings against the second respondent. The remaining questions relate to the start date for various claims in the statement of claim against the first respondent.
6. The applicant submitted that the answer to all the questions is 31 July 2024. On the other hand, the respondents submitted that the answer to the first four questions is 21 May 2025. The respondents accepted at the hearing that for the fifth question the answer is 31 July 2024. After the hearing, the parties confirmed that it is agreed the answer to the fifth question is 31 July 2024.
7. The starting dates are relevant to limitation arguments to be determined at the substantive hearing. As limitation questions usually involve complex questions of fact and law, it is generally not appropriate for them to be determined at an interlocutory stage_: McGraw-Hill Financial, Inc v Clurname Pty Ltd_ [2017] FCAFC 211 (McGraw-Hill) at [6], citing Wardley Australia Limited v State of Western Australia [1992] HCA 55; (1992) 175 CLR 514 at 533.

Question 1: Is the start date of the applicant's claims against the second respondent 31 July 2024 or 21 May 2025?

1. The applicant submitted that the need for the amendment to the originating application arose because the first respondent (Holcim EMEA), having ostensible authority from the American entity (the second respondent), initially held itself out to the applicant as the supplier of the Geogard, the subject of these proceedings (that is, holding itself out as the proper respondent). As such, the applicant relied on those representations and named Holcim EMEA as the respondent in the originating application. To put it bluntly, the submission is the applicant was misled, and it was reasonable for them to believe that Holcim EMEA was the supplier of the Geogard, and hence the appropriate respondent. The applicant submitted that the amendment was made pursuant to r 8.21(1)(c) of the FCR and the ordinary relation-back rule applies: r 8.21(2). The applicant submitted in any event, r 8.21 provides non-exhaustive examples of circumstances that may move an applicant to amend an originating process: McGraw-Hill at [23]. If the reason for the amendment was not contained within r 8.21(1)(c), the discretion to grant leave to amend an originating application nonetheless applies. Even if the Court finds that the joinder of the American entity had been pursuant to r 9.05(1), the Court has power under r 1.34 to dispense with the operation of r 9.05(3): Lee v Parker (No 2) [2022] FCA 582 at [110], which should be exercised in the circumstances.
2. The respondents submitted that the amendment was pursuant to r 9.05, and that r 9.05(3) provides: "If a person is joined as a party under this rule, the start date of proceedings for a person is the date on which the order is made". It was submitted the ordinary rule should apply. Even if the amendment is pursuant to r 8.21, there is no automatic reason why the amendment should be taken to have effect from the date of the original originating application, referring to Voxson Pty Ltd v Telstra Corporation Ltd (No 7) [2017] FCA 267 at [15].
3. There was no real issue between the parties as to the relevant principles, each accepting the issue was one of discretion. Nonetheless it is helpful to refer to McGraw-Hill, as it recognises the approach to the exercise of the discretion under r 8.21. The Full Court (Allsop CJ, Jagot and Yates JJ) observed at [23]-[24]:

[23] ...The language of r 8.21(1) is clear: an applicant may apply to the Court for leave to amend an originating application for any reason "including" any of the reasons in r 8.21(1)(a)-(g). Subrules (a) to (g) are examples of amendments that may be the subject of application. They are not a code. Thus, the interaction of r 8.21(1)(g) and (2) does not mean that the Court's power to permit an amendment asserted to involve a statute-barred claim is confined to the circumstances in r 8.21(1)(g)(i). We leave to one side for further argument the proper approach to an amendment introducing an unarguably statute-barred claim. Nevertheless, the following considerations undermine any rigid or bright-line approach exclusively based on r 8.21(1)(g) and r 8.21(2).

[24] The Federal Court Rules must also be construed as a whole. Apart from the fact that the power to apply to amend is expressed inclusively in the opening words of r 8.21(1), other rules disclose the true position.

1. The Court recited the content of various rules: rr 1.32, 1.33, 1.24, 1.35, 16.51 and continued at [25]:

Rules 1.32 to 1.35 are important weapons in the Court's armoury to enable the overarching purpose of the "civil practice and procedure provisions" (defined in s 37M(4) of the Court Act to comprise the Rules and "any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Court") to be achieved as identified in s 37M(1) of the Court Act. The overarching purpose is to facilitate the just resolution of disputes according to law, as quickly, inexpensively and efficiently as possible. Faced with these provisions to construe r 8.21(1)(g) as an exclusive power to permit a statute-barred amendment let alone a merely arguably statute-barred amendment (as in the present case) only in the circumstances permitted by r 8.21(2), is inconsistent with the language of the Rules and inimical to the overarching purpose in s 37M of the Court Act. As the present case demonstrates, given the competing arguments about when the cause of action first accrued and the potential operation of s 55(1)of the Limitation Act, if there is a reasonable argument the claim is not statute-barred, there is no reason in principle that an amendment should not be permitted, particularly if all rights are preserved by the date on which the amendment takes effect being determined as part of the final judgment rather than on an interlocutory basis.

1. Although for an amendment pursuant to r 9.05 the start date of proceedings for a person is the date on which the order is made: r 9.05(3), the Court may make any order it considers appropriate in the interests of justice: r 1.32 and see r 1.35. That is, the Court can order that the amendment takes effect from the date of the commencement of a proceeding, sometimes described as the relation-back principle.
2. It is plain that the exercise of the discretion is fact specific.
3. This case has an unusual aspect. The applicant put the case on the basis the American entity was joined because there was a mistake, by description, as to who was the supplier and, if material, who was the corporate successor to a corporate reorganisation under foreign law in circumstances where that mistake originated from information supplied to the applicant by Holcim EMEA. On the applicant's case, although the American entity was added as the second respondent, it is in circumstances where neither Holcim EMEA nor the American entity has admitted they supplied the Geogard to the applicant. Therefore, the question of which entity meets the description of the entity that supplied the Geogard can only be decided at the final hearing. That is, there remains an ambiguity.
4. If, as the applicant contended, it was misled by the respondents as to the supplier of the Geogard in circumstances where there was no reason for it to doubt they were dealing with the correct entity, that is a strong factor in the exercise of the discretion in favour of the start date being 31 July 2024.
5. To start at shortly before the proceedings were filed, in a letter dated 22 March 2024, Holcim EMEA held itself out to the applicant as the supplier of the Geogard stating:

We refer to your letter of 29 November 2023 ... with respect to the membrane materials supplied by Firestone Building Products Europe Inc (now known as Holcim Solutions and Products EMEA BV) ...

1. This is a letter where Holcim EMEA was responding to the applicant's letter of 29 November 2023, in which it set out legal claims for damages in respect to the lining.
2. The evidence on this application is that the supplier of the Geogard gave the applicant a series of contemporaneous warranty certificates, each in materially identical form. Paragraph one identified that the warranty was given by "Firestone Building Products Europe Inc." defined as "Firestone". Paragraph two directed the warranty holder that "In the event any leak should be discovered in the membrane, the Owner must give written notice to Firestone within thirty (30) days" and "By so notifying Firestone, the Owner authorizes Firestone or its designee to promptly Inspect the project installation".
3. On 20 September 2021, the applicant gave notice to the European entity as directed by the warranty certificate supplied by the supplier. They did so by letter of that date to the European entity which was directed to Mr Philip Moors, the then managing director of the European entity. In the letter, the applicant described the problems with the pipes (attaching photographs) and in the penultimate paragraph stated:

We're asking for your recommendations on how to rectify these problems and whether this can be covered by a warranty.

1. Investigations followed the notice.
2. The applicant subsequently dealt with that entity over a lengthy period of time.
3. There is a further letter from the applicant to "Bernat & Firestone team", which reflects there had been a meeting with them, with the applicant thanking them for their time to "help us overcome our liner repair situation". The letter provided further details of the issues, and the European entity's advice at the time of the original installation. A report dated 8 February 2022 was prepared on the letterhead of Firestone Building Products EMEA.
4. There is a media release from Nashville, Tennessee dated 21 June 2022:

Today, Firestone Building Products is proud to announce that it is adopting the Holcim name and brand identity, becoming the Holcim Building Envelope Division ...

....

Firestone, a premier provider of industry-leading roofing, wall and lining systems, is becoming Elevate. Building on Firestone's iconic brand and legacy, Elevate ....

...

Under the new Elevate brand, the people, products and standards trusted in the industry will remain the same ... Plus, the high-quality solutions, network of licensed applicators and industry-leading warranties will remain unchanged.

1. It is not suggested that the applicant saw this release, but rather it is relied on to show that what is being said by the respondents to the world at large suggests the applicant was going down the right path.
2. There was a meeting on 26 October 2022 between the applicant and Elevate, with Elevate's notes of the meeting (with its header being "HolcimElevate.com") commencing:

At the start of the meeting, Firestone presented their point of view about the ballast.

1. The notes reflect that "Firestone" made various representations, including that "... Firestone has to be considered as the membrane producer. Firestone cannot be considered as the designer, the installer or controller company". The notes reflect there was a discussion on long-term repairs, and the setting up of a trial.
2. I note there is a certificate of dissolution of the European entity dated 27 December 2022, a signatory being Ms Sandi Pack, Secretary and General Counsel (the person who, on the evidence is providing instructions for the respondent). It is not suggested this certificate was known to the applicant at the time of commencing the proceedings.
3. On 19 May 2023, the applicant again wrote to Mr Bernat Amat who is the product development manager of the Building Envelope Division at Holcim Solutions & Products EMEA-BV. The letter complained the applicant has not been receiving the test results that Holcim EMEA had agreed to share. The letter also stated:
   1. It has been drawn to our attention that Holcim. who we understand to now be ultimate owner of Firestone has been using the TNIS in its advertising. [with the link provided]
   2. At that URL, the following quote is attributed to a Mr Philip Moors, Managing Director of Holcim Solutions and Products:

This is the largest EPDM job we have ever completed, equivalent to covering 213 soccer fields, it fills us with pride to be part of this success story and deliver a tangible, long-lasting solution to the local farming community.

1. The letter went on to describe how ironic Mr Moors' statement was given the problems the applicant is experiencing.
2. A response dated 31 May 2023 was received from Elevate, which stated:

We agree that the repair operations must be defined urgently and operated while the canals are empty to avoid damage escalation.

1. The letter acknowledged the project has been used for many years by "our marketing teams", and it understands that it does not reflect the current situation of the canal and it would inform the marketing team accordingly. I note also the letter was signed off by Mr Amat at Holcim EMEA.
2. On 29 November 2023, the applicant again wrote to the European entity and Holcim EMEA and complained that it has been talking to them for more than two years about the failure of the EPDM lining, and because of the lack of any real progress towards resolution they would need to take actions down a more formal path. The applicant then set out its complaints.
3. It is this letter which led to the response on 22 March 2024 with the letterhead from "Holcim", referred to above, where it expressly held itself out to as the supplier of the Geogard:

... with respect to the membrane materials supplied by Firestone Building Products Europe Inc (now known as Holcim Solutions and Products EMEA BV and referred to as "Holcim" below) ...

1. It was signed off by the head of the Building Envelope Division (EMEA and Asia). The content of the letter is consistent with the express statement made at the outset that it was the supplier.
2. That correspondence must be understood against the backdrop of the history of the interactions between the applicant and the first respondent.
3. The applicant submitted that there has been no evidence led that prior to commencing the proceedings Holcim EMEA informed the applicant that it was not the proper entity to be dealing with, nor any of the matters ultimately revealed through the various documents provided by the respondents' lawyers from February 2025. That submission was not challenged.
4. The applicant submitted that the position as reflected by the evidence it that it is clear it intended to sue the particular entity they were in business with at the time.
5. The respondents submitted that what has led to the applicant adding the second respondent if that be the case, is not a result of anything the respondents did but rather is a result of no, or inadequate searches on the part of the applicant. The applicant submitted that no searches were conducted before commencing proceedings because, given what had occurred, it did not understand there was any issue as to the appropriate party they were suing. The evidence from Mr Sannan Tariq, the applicant's solicitor, was that the first time he became aware of any issue with the identity of the first respondent was in a telephone call on 29 September 2024 from Mr Daniel Nixon, the respondents' solicitor, informing him they had commenced proceedings against the wrong entity. The exchanges between the parties thereafter do not need to be traversed. Suffice to say two matters. First, as a result of being informed, the applicant conducted further searches leading it to conclude that it appeared that it may have in fact been dealing with two entities in 2011 to 2014. The respondents submitted those searches should have been conducted earlier (as the document, an invoice from 2012, was always in their possession). However, that submission takes no account of the ongoing conduct (and its nature) between the first respondent and the applicant. Second, it was not until February 2025 when further documents were produced by the first respondent. The respondents' submission fails to address the evidence of the interaction between Holcim EMEA and the applicant from when they called on the warranty in 2021.
6. The respondents also submitted that they are prejudiced, inter alia, because of the limitation periods. The respondents submitted orally that the limitation bar is there, "to stop these sorts of stale claims". The respondents pointed to the fact that they and the applicant do not have the supply contract. They do not know who the people are that the applicant pleaded in the statement of claim to have dealt with from the respondents. The respondents' submission also suggested the applicant is in the position it is in because of its own making, since it has taken so long to bring this case. However, that fails to recognise that on the applicant's case the issue with the pipes only arose in 2020/2021, and therefore it was only at that time it needed to call on the warranty in relation to that issue. The applicant submitted that is when the loss accrued. Any dispute with that, is properly a matter for trial. Further, there is a certification of amendment lodged in the state of Indiana, changing the name Firestone Building Products Company, LLC to Holcim Solutions and Products US, LLC, effective 3 October 2022 (that name has since be changed again, so it is now Amrize Building Envelope LLC). The applicant submitted that therefore the persons whom the respondents claimed not to know, are their former employees. That is because no new entity or new business was formed, it was just a change of name. So much appears to be correct.
7. The respondents' submissions rely, in part, on an assertion that the applicant suffers no prejudice because they are not going to succeed based on the Proposal for Transfer of Branch Activity, a document which the respondents submitted means that when the European entity was dissolved, Holcim EMEA did not take on Australian obligations. The respondents submitted that:

...if our construction [of the document] is right, at all times from 2018, before my client was involved, it assigned part of its business but not the relevant part, and it was dissolved in 2020 before my client was involved, and therefore there was no one ever to sue, the position doesn't change whether he was told that then or told that later.

1. However, the respondents accepted their construction may be wrong, it is challenged by the applicant, and it involves a question of Belgian law on which there will need to be expert evidence at the trial. Acceptance of that reflects the flaw in the respondents' submission, as it presupposes the correctness of an issue they accept will need to be determined at trial.
2. Given the evidence, I am satisfied that the applicant was misled by the respondents as to the supplier of the Geogard in circumstances where there was no reason for it to doubt they were dealing with the correct entity. The interactions between Holcim EMEA and the applicant culminated in the letter of 22 March 2024, which was in clear terms. It was reasonable for the applicant to assume it was the entity on 31 July 2024 that they intended to sue, being the entity they were in business with at the time - the entity that supplied and installed the material, the lining, and told the applicant various things about the quality of the lining and made the relevant representations. Given the nature of the interactions between Holcim EMEA and the applicant, and the circumstances in which they occurred, I do not consider it unreasonable for them not to have identified this current issue as to the identity of the relevant entity before the proceedings were commenced. The respondents' submission that those communications and dealings were based on a mistaken belief on their part, does not assist them. The respondents' submission was, in effect, the applicant should have checked the accuracy of what it was being told by Holcim EMEA. The applicant was not required to assume it was a mistake for Holcim EMEA to identify itself as the relevant entity. After proceedings were commenced, I do not consider that there has been a delay on their part such as to tell against the proceedings against the second respondent commencing on 31 July 2024. I consider that the submission as to prejudice, given the particular circumstances weigh in favour of the applicant. The interests of justice are better served if the starting date is 31 July 2024.
3. In the circumstances, I am satisfied that the start date of the applicant's claims against the second respondent is 31 July 2024. That is so whether the amendment is made under rr 8.21 or 9.05. It may be accepted that, as explained above, r 8.21 is non-exhaustive and therefore can encompass this unusual factual circumstance. In any event, if this is addressed under r 9.05, I nonetheless order the proceedings to commence on 31 July 2024. Any arguments as to the application of limitation periods are properly considered at the trial.

Question 2-5: Is the start date of the applicant's claims against the first respondent 31 July 2024 or 21 May 2025?

1. These questions arise from amendments to the originating application, and what is said to be differences between the concise statement filed on 31 July 2024 and the statement of claim filed on 5 May 2025 (with the amended originating application filed on 25 July 2025 which, as noted above, was deemed to have started no later than 21 May 2025). These questions raise the issue about whether there are new causes of action.
2. The applicant accepted that although the misleading and deceptive conduct claim and the warranties claim had been pleaded in the originating application (they are existing claims), the negligence claim had not been pleaded. It submitted that nonetheless, the negligence claim arises from the same facts pleaded and from the same story. It was submitted accordingly that all the claims should start on 31 July 2024.
3. On the other hand, the respondents submitted that the negligence claim is a new cause of action, and there is an "entirely new misleading or deceptive conduct case", although a case was originally pleaded. As explained above, there is no longer any dispute in relation to the starting date of the warranties claim.
4. Rule 8.21(g)(i) "requires the Court to focus on the facts currently pleaded to determine whether the new claim for relief (or new legal foundation for a claim) arises out of the same, or substantially the same facts": Darcy v Medtel Pty Ltd (No 3) [2004] FCA 807 at [30] cited in Carter, in the matter of Spec FS NSW Pty Ltd (In Liquidation) [2013] FCA 1027; (2013) 225 FCR 79 at [38]. The expression "substantially the same facts" does not mean "the same facts" and the need to prove additional facts to support the new cause of action does not preclude the exercise of the Court's discretion under r 8.21(g)(i). If the additional facts to support the new cause of action arise out of substantially the same story as that which supports the original cause of action, the fact that there is a changed focus with the elicitation of additional details should not, of itself, prevent a finding that the new cause of action arises out of substantially the same facts: Draney v Barry [1999] QCA 491; [2002] 1 Qd R 145 at [57] cited with approval in Bryant (Liquidator) v L.V. Dohnt & Co Pty Ltd, in the Matter of Gunns Limited (In Liq) (Receivers and Managers Appointed) [2018] FCA 238 at [71].
5. To make good the submissions as to whether the claims arose out of the same facts, the parties addressed the concise statement and statement of claim in some detail.
6. Before considering this further, it is timely to recall the different nature of a concise statement and a statement of claim.
7. It has been recognised that the function served by concise statements is distinct from that of traditional pleadings: Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 [2021] FCAFC 121; (2021) 287 FCR 388 (Allianz) at [140]-[154] and see Chadwick v State of New South Wales (Amendment Application) [2022] FCA 1138 at [14].
8. The contents of a concise statement are not governed by the rules of pleadings. The purpose of a concise statement, in contrast to pleadings, is to enable the applicant to raise the key issues and key facts at the heart of the dispute and the essential relief sought from the Court: Allianz at [140], and see Central Practice Note: National Court Framework and Case Management (CPN-1) at [6.8]-[6.10]. It is limited in length (being no more than 5 pages), and therefore necessarily limited in content (by comparison to a statement of claim). Given that, it is to be expected that a statement of claim filed after a concise statement will contain more detail. It is in that context that the submission as to differences must be considered.
9. Turning to the questions.
10. Both questions two and four relate to the misleading and deceptive conduct claims (albeit address the different relief sought with one directed to the damages claim and one to the compensation claim).
11. I do not agree with the respondents that the misleading and deceptive conduct is entirely different. It does not need to arise from the same facts. That submission, based on the assertion there are new facts, matters and circumstances pleaded in the statement of claim, failed to focus on whether the facts are substantially the same, or arise from substantially the same story. Beyond a mere assertion, the respondents did not address why those facts are not substantially the same or arise from substantially the same story. This is highlighted by the nature of some of the differences relied on in oral submissions (e.g. the statement of claim provides details of persons the applicant dealt with, while the concise statement does not refer to the identified persons but rather refers to the respondent company). The submission also failed to recognise the difference between a concise statement and statement of claim. Not surprisingly, as explained above, there are additional facts in a statement of claim. It is more detailed and pleaded with more precision of language as to the representations. However, properly considered, although there is the pleading of facts not in the concise statement and a claim for compensation is added, in relation to misleading and deceptive conduct, these claims arise substantially out of the same story as in the concise statement. These claims in the amended originating application start on 31 July 2024.
12. Question 3 raises a claim for negligence, which was not pleaded in the originating application. The only submission advanced by the respondents is that negligence is a new cause of action. That a claim is a new claim for relief does not address the question of whether it arises from substantially the same facts. I accept that this new claim for relief arises out of substantially the same facts. It has as its base substantially the same facts and story. The negligence claim in the amended originating application starts on 31 July 2024.
13. As already explained, in relation to question five, it is agreed that the warranties claim starts on 31 July 2024, which was confirmed after the hearing. In that confirmation of the parties' position it was explained:

This agreement is strictly on the basis that the Applicant has now confirmed that the breach of 'Firestone Warranty' cause of action pleaded against Holcim Solutions and Products EMEA in paragraphs 5, 27, 28, 31 and 54 of TNCL's Statement of Claim are in respect of no more than the 'Firestone Warranty' documents which are defined in paragraph 15 of TNCL's Concise Statement...

1. The issue of any limitation periods that are said to arise in the case is a matter to be determined at trial.

1. For the reasons above, in relation to each question, the answer is 31 July 2024.

I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Abraham.