VWA v Homes Victoria [2026] VCC 471

County Court of Victoria|2026-04-17

This matter was listed for hearing on 15 April 2026 and was listed in conjunction with a jury trial in the matter of Holzer v Homes Victoria CI-24-05501 ("the Holzer proceeding") The estimate provided was 3-4 days.
On 15 April 2026, the Court dealt with a number of pre-trial procedural matters
In the course of the afternoon of 15 April 2026 the defendant foreshadowed an application for leave to file and serve an Amended Defence.
The Court ordered that a draft of the proposed Amended Defence be provided to the Court and the plaintiff no later than 9:30am on 16 April 2026.
At approximately 9:29am on 16 April 2026, the defendant sent to the Court and the plaintiff a document titled "Amended Defence".
On the morning of 16 April 2026, Counsel for the defendant made a formal oral application for leave to file and serve an Amended Defence.
In broad terms, the proposed amendments sought to expand upon the bald denial of negligence which was pleaded in paragraph 11 of the Defence dated 21 March 2025 ("the original Defence') and asserted that the defendant had reasonable systems in relation to inspection, reporting, cleaning and maintenance and that it discharged its duty of care "at least in part' by engaging and supervising a reputable and competent" cleaning contractor, GJ & K Cleaning Services, and engaging and supervising a " reputable and competent" contractor, McPeake, to perform inspection, building and maintenance services.
The application was supported by an Affidavit of David Robin Guthrie affirmed on 16 April 2026, plus exhibits, which purported to explain the circumstances in which the application was made (Exhibit "A").

In issue between the parties is whether leave should be granted if so what consequential orders should be made.
I have taken into account the contents of the Affidavit of David Robin Guthrie affirmed on 16 April 2026 , the helpful oral submissions made by both Counsel on 16 April 2026 and the cases referred to by Counsel in their oral submissions.
This Ruling should be read in conjunction with the Ruling delivered today on the Holzer proceeding in which the applicable legal principles were discussed and will not be repeated here.

The submissions made in the Holzer proceeding were adopted and repeated in this application.

The plaintiff would suffer prejudice if the amendments were allowed including the question of whether additional defendants should be joined to the proceeding.
If the amendments were allowed, the plaintiff's case, as currently pleaded could not proceed.
It was not desirable that the plaintiff's case precede the Holzer proceeding.

The ultimate question in determining such an application is what the justice of the case requires.
Having conducted the balancing exercise required of me, I find that it is in the interests of justice to allow the proposed amendment.
In the circumstances, the case cannot currently proceed.

The parties are requested to prepare orders consistent with this ruling prior to 24 April 2026 including costs orders and any further timetabling orders.
If the parties are unable to agree on the form of orders, the court will make a further ruling on 27 April 2026.

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