Devine Constructions Pty Ltd v Heinrich Constructions Pty Ltd

Case [2024] QSC 285

SUPREME COURT OF QUEENSLAND

CITATION:

Devine Constructions Pty Ltd v Heinrich Constructions Pty Ltd [2024] QSC 285

PARTIES:

DEVINE CONSTRUCTIONS PTY LTD
ACN 114 040 845

(plaintiff)

v
HEINRICH CONSTRUCTIONS PTY LTD
ACN 080 897 605

(first defendant)

LENAC PTY LTD AS TRUSTEE FOR THE LENAC FAMILY TRUST, TRADING AS O’SHE FASHIONS (FORMERLY TRADING AS THE ODYSSEY CONSULTING GROUP)
ABN 81 246 994 126

(second defendant)

CONSTRUC PTY LTD
ACN 102 715 382

(third defendant)

FILE NO/S:

BS No 8984 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

22 November 2024

DELIVERED AT:

Brisbane

HEARING DATE:

3 May 2024; supplementary submissions filed 15 May 2024 and 20 May 2024

JUDGE:

Kelly J

ORDER:

1. Pursuant to rule 376(4) of the UCPR, the plaintiff has leave to file the Amended Claim and Further Amended Statement of Claim in the form of exhibit MTD-01 to the affidavit of Matthew Thomas Deighton filed 3 November 2023.

2.   I will hear the parties as to costs.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – AMENDMENT – ORIGINATING PROCESS, PLEADINGS ETC – where the plaintiff has applied under r 376(4) UCPR for leave to file an amended claim and further amended statement of claim – where the application was opposed by the second defendant and the third defendant – where the plaintiff’s proposed amendments included new causes of action – whether the new causes of action arise “out of the same facts or substantially the same facts as a cause of action for which relief has already been claimed” – whether it is appropriate to grant leave to make the amendments

Competition and Consumer Act 2010 (Cth) Schedule 2, s 236, s 237

Uniform Civil Procedure Rules 1999 (Qld), r 5, r 376

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27, cited
Brisbane Airport Corporation Pty Ltd v Arup Pty Ltd[2017] QSC 232, considered
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25, applied
Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261; [2010] FCAFC 101, cited
Draney v Barry [2002] 1 Qd R 145; [1999] QCA 491, cited
Gladstone Ports Corporation Limited v Murphy Operator Pty Ltd [2024] QCA 74, cited
Jetcrete Oz Pty Ltd v Conway[2015] QCA 272, cited
Menegazzo v Pricewaterhousecoopers (a firm)[2016] QSC 94, applied
Paul v Westpac Banking Corporation [2017] 2 Qd R 96; [2016] QCA 252, cited
Thomas v State of Queensland[2001] QCA 336, cited

Weston v Publishing and Broadcasting Ltd (2011) 83 ACSR 206; [2011] NSWSC 433, cited
Wolfe v State of Queensland [2009] 1 Qd R 97; [2008] QCA 113, considered

Zonebar Pty Limited v Global Management Corporation Pty Ltd [2009] QCA 121, considered

COUNSEL:

G Beacham KC with B A Reading for the plaintiff

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Details
AGLC
Devine Constructions Pty Ltd v Heinrich Constructions Pty Ltd [2024] QSC 285
Case
[2024] QSC 285
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Queensland, Devine Constructions Pty Ltd sought leave to amend its claim against Heinrich Constructions Pty Ltd, Odyssey Pty Ltd, and Construc Pty Ltd. The amendment aimed to introduce new causes of action based on expert reports and to align the pleadings with the current state of the expert evidence. The defendants opposed the application, questioning whether the new causes of action arose from substantially the same facts as those already claimed.

The court had to determine if the proposed amendments met the criteria under rule 376(4) of the Uniform Civil Procedure Rules, specifically whether the new causes of action arose out of substantially the same facts as the original claims. This required a broad but not overly expansive comparison between the original and proposed claims, considering the policies underlying limitations statutes. The court noted that while some new facts could be introduced, there needed to be a substantial factual connection to the original claims.

The court found that the new causes of action did indeed arise from substantially the same facts as the original claims. The additional facts emerged from the same overarching story and shared a common focus, despite the new details. This aligned with the practical tests established in relevant case law, confirming that the new claims were sufficiently related to the original pleadings. Consequently, the court granted leave for the plaintiff to file the amended claim and further amended statement of claim.

Pursuant to rule 376(4) of the UCPR, the plaintiff has leave to file the Amended Claim and Further Amended Statement of Claim in the form of exhibit MTD-01 to the affidavit of Matthew Thomas Deighton filed 3 November 2023. The court will hear the parties as to costs.

Orders

Orders of the court

1. Pursuant to rule 376(4) of the UCPR, the plaintiff has leave to file the Amended Claim and Further Amended Statement of Claim in the form of exhibit MTD-01 to the affidavit of Matthew Thomas Deighton filed 3 November 2023.

2. I will hear the parties as to costs.

Background

Background to the litigation

An expert retained on behalf of Devine, Mr Eric Fox, produced a report dated 25 June 2020. Devine’s statement of claim was then filed on 19 August 2020. During February and March 2021, defences were filed by Heinrich, Odyssey and Construc. On 9 September 2020 and 7 August 2022, Dr Nicholas Stevens produced expert reports on behalf of Odyssey. On 21 September 2022, Mr Fox produced a supplementary report responsive to Dr Stevens’ reports. At some point, it would appear after September 2022, Mr Fox informed Devine’s solicitor that he did not have the expertise to analyse and interrogate Dr Steven’s report and calculations. On 12 October 2022, Devine filed an amended statement of claim. On 28 February 2023, Mr Tim Peters produced an expert report on behalf of Heinrich. Mr Fox thereafter informed Devine’s solicitor that he did not have the expertise to analyse and interrogate Mr Peters’ report and calculations. By 10 May 2023, Devine’s solicitor had found an expert with suitable qualifications and expertise, Dr Al-Ameri. By an order dated 11 July 2023, the respondents consented to the service of an expert report from Dr Al-Ameri. On 20 August 2023, Dr Al-Ameri produced a report which was responsive to Dr Stevens’ and Mr Peters’ reports. The proposed pleading has been settled by counsel following the receipt of the report of Dr Al-Ameri and seeks to make Devine’s case consistent with the current state of the expert evidence which it intends to adduce at trial. The proposed amendments arise out of substantially the same facts The essential question posed by r 376(4)(b) is whether the new cause of action arises out of “substantially the same facts” as a cause of action for which relief already has been claimed. That question involves a “fairly broad brush comparison”,[23] but not one involving “too broad a brush”,[24] between the nature of the original claim and that to which it is sought to be amended. The question involves matters of “impression”,[25] and “degree”.[26] The answer to the question is informed by policies underlying the applicable limitations statute.[27] The words “substantially the same facts” are not to be viewed as a “straitjacket”.[28] The rule countenances the introduction of some new facts in support of a new cause of action,[29] without requiring precise similarity of factual circumstances.[30] [23]Thomas v State of Queensland [2001] QCA 336, [19].[24]Ibid, [20].[25]Ibid, [17].[26]Menegazzo v Pricewaterhousecoopers (a firm) [2016] QSC 94, [50].[27]Paul v Westpac Banking Corporation [2017] 2 Qd R 96, [23].[28]Draney v Barry [2002] 1 Qd R 145, [57].[29]Gladstone Ports Corporation Limited v Murphy Operator Pty Ltd [2024] QCA 74, [165].[30]Weston v Publishing and Broadcasting Ltd (2011) 83 ACSR 206, [592] per Ward J dealing with s 65 of the Civil Procedure Act 2005 (NSW). The authorities have identified helpful practical tests, or lines of inquiry, which provide some guidance for the purpose of ascertaining whether additional facts arise out of substantially the same facts. One inquiry involves asking whether the additional facts arise out of “substantially the same story”. In Draney v Barry, Thomas JA observed:[31]“…If the necessary additional facts to support the new cause of action arise out of substantially the same story as that which would have to be told to support the original cause of action, the fact that there is a changed focus with elicitation of additional details should not of itself prevent a finding that the new cause of action arises out of substantially the same facts.”[31][2002] 1 Qd R 145, [57].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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