Hennessy v CAV Gasworks Pty Ltd - [2025] QSC 266

SUPREME COURT OF QUEENSLAND

CITATION:

Hennessy v CAV Gasworks Pty Ltd [2025] QSC 266

PARTIES:

AMY JANE HENNESSY
(applicant)

v

CAV GASWORKS PTY LTD (ACN 603 728 338) AS TRUSTEE FOR THE CAV GASWORKS TRUST
(respondent)

FILE NO/S:

BS 10560 of 2024

DIVISION:

Trial division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

21 October 2025

DELIVERED AT:

Brisbane

HEARING DATE:

25 September 2025

JUDGE:

Cooper J

ORDER:

Paragraphs 8(i)(i), 8(i)(iv), 8(l) and 12(d) of the amended points of defence filed on 29 May 2025 are struck out.

CATCHWORDS:

PROCEDURE – PLEADINGS – STRIKING OUT – OTHERWISE ABUSE OF PROCESS – where the applicant entered a contract to purchase an apartment “off the plan” from the respondent – where the applicant seeks specific performance of that contract – where the respondent alleged that, among other construction defects, timber floors installed in the apartment required removal and replacement before the contract could complete – where the respondent filed expert evidence addressing the alleged defects in the timber floors – where the parties agreed a date on which the applicant’s expert witness would inspect the apartment to prepare a report addressing the alleged construction defects, including the defects in the timber floors – where the respondent caused the timber floors to be removed before the date the applicant’s expert inspected the apartment – where the applicant’s expert has provided a report containing opinions, based on the evidence available to him, as to the likelihood that the timber floors required removal and replacement – whether the respondent’s allegations concerning defects in the timber floors should be struck out on the basis that a fair trial of those issues is no longer possible

Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27, discussed
British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524; [2002] VSCA 197, cited
Clark v New South Wales (2006) 66 NSWLR 640; [2006] NSWSC 673, followed
Fuji Xerox Australia Pty Ltd v Lee [2003] QSC 303, cited
Katsilis v Broken Hill Pty Co Ltd (1977) 18 ALR 181, cited
Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264, followed
Sun v He (No 2) [2020] NSWSC 1298, cited

Uniform Civil Procedure Rules 1999 (Qld) r 165, r 171, r 250

COUNSEL:

MC Long for the applicant
MD Martin KC with DV Ferraro for the respondent

SOLICITORS:

HWL Ebsworth Lawyers for the applicant
O’Shea & Partners Lawyers for the respondent

The respondent (CAV) is the developer of a multi-storey residential and commercial building in Newstead, known as ‘Luminare’. On 27 February 2020, the applicant (Ms Hennessy) contracted with CAV to purchase an apartment on Level 23 of the building (Unit 2304) “off the plan”. The contract contained a sunset clause which gave either party the right to terminate the contract if, by 31 December 2022, CAV had not issued a notice to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hennessy v CAV Gasworks Pty Ltd

Details

AGLC: Hennessy v CAV Gasworks Pty Ltd [2025] QSC 266
Case: [2025] QSC 266
Decision Date: 21 October 2025

CaseChat Overview and Summary

In the matter of Hennessy v CAV Gasworks Pty Ltd, the plaintiff, Hennessy, sought specific performance of a contract to purchase an apartment from the defendant, CAV Gasworks. The defendant argued that the contract should be terminated due to construction defects, including alleged issues with the timber floors in the apartment. The primary legal issue before the court was whether the defendant's allegations concerning the timber floors should be struck out, as the defendant had removed the floors before the plaintiff's expert could inspect the apartment, potentially making a fair trial of the issues impossible. The court needed to determine whether the removal of the timber floors constituted an abuse of process and, if so, whether the remedy should be proportionate to the prejudice suffered by the non-defaulting party.

The court examined the circumstances surrounding the removal of the timber floors. Mr Cavallucci, the sole director of CAV, testified that the floors required replacement from at least August 2023 due to damage from water ingress. He stated that CAV had engaged a contractor to remove and replace the floors in November 2024, and the floors were eventually removed between 7 April 2025 and 18 April 2025. Mr Cavallucci emphasized that the decision to remove the floors was based on the contractor's availability and not intended to impede the plaintiff's expert's inspection. The court also noted that CAV did not agree to the inspection on the proposed dates because Mr Cavallucci was not available to explain the issues to the expert.

After considering the evidence, the court concluded that certain paragraphs in the defendant's amended points of defence should be struck out. Specifically, paragraphs 8(i)(i), 8(i)(iv), 8(l), and 12(d) were deemed to be based on matters that were incapable of supporting a finding of substantial damage under the contract. The court decided not to summarily determine the issue of substantial damage, as this was a matter to be addressed at trial. The court also declined to grant the plaintiff's request for relief regarding other paragraphs in the amended points of defence.

In its final order, the court struck out paragraphs 8(i)(i), 8(i)(iv), 8(l), and 12(d) of the amended points of defence filed on 29 May 2025. The court directed the parties to present their arguments regarding costs.

Orders

Orders of the court

Paragraphs 8(i)(i), 8(i)(iv), 8(l) and 12(d) of the amended points of defence filed on 29 May 2025 are struck out.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Where there has been an abuse of process, the remedy must be responsive and proportionate to the prejudice suffered by the non-defaulting party.[17] Evidence[17]British American Tobacco, 591-2 [188].The circumstances in which the timber floors were removed Mr Cavallucci, the sole director of CAV, gave evidence that from at least 4 August 2023, the timber floors in Unit 2304 had to be replaced. He also gave evidence of further damage which occurred in Unit 2304 because of the failure of a pressure relief valve in the hydraulic cupboard on Level 23 of the building on 16 September 2023. After Mr Cavallucci turned off the pressure relief valve on that occasion, he commenced cleaning up water which had entered Unit 2304. He deposed that, during the cleanup process, he could see that water had penetrated the timber floorboards, showing signs of damage including discolouration, cupping of the timber floors and warping of some lower cabinetry and skirting boards. Mr Cavallucci also deposed to work undertaken by CAV to address water ingress issues, including: the replacement of the pressure relief valve on Level 23 in September or October 2023; increasing the extent of waterproofing in the hydraulic cupboard on Level 23 at some point after September 2023; removing water-damaged cabinetry from Unit 2304 in September 2023; investigations and attempted rectification of sources of water ingress affecting Unit 2304 between June and December 2024; and removing carpet affected by mould from Unit 2304 in about October 2024. Mr Cavallucci deposed that CAV engaged a contractor to demolish the existing timber floors and install replacement flooring in about November 2024. The contractor inspected Unit 2034 on 30 January 2025 and provided a quote for removing and replacing the timber floors. Mr Cavallucci deposed to having been informed by the contractor in late March 2025 that, due to high demand, the floor removal could only occur between 7 April 2025 and 18 April 2025. If the demolition did not occur in that time, it would be several months before the contractor could remove the floors. Mr Cavallucci deposed that he instructed the contractor to proceed to remove the timber floors within the time window available to it so that construction of Unit 2304 could be advanced towards completion. He stated that, when he gave that instruction, his priority was to progress rectification works and prevent further damage from water ingress. Mr Cavallucci stated that his decision to proceed with the removal of the timber floors in the period nominated by the contractor was based entirely on the availability of the contractor; it was not made to impede Mr Groom’s inspection of Unit 2304. Mr Cavallucci further deposed that CAV did not agree to Mr Groom inspecting Unit 2304 on 8 or 9 April 2025 because Mr Cavallucci needed to be present during the inspection to explain the issues to Mr Groom – based on his knowledge as engineer, builder and draftsman for the development – and he was not available on the proposed dates.

Decision

Reasons for decision

Of the paragraphs CAV relies upon in paragraph 25(c)(i) as the bases for its alleged entitlement to terminate under clause 13.1(g) of the contract, paragraphs 8(i)(i), 8(i)(iv), 8(l) and 12(d) are to be struck out. Further, paragraphs 8(i)(ii) and 8(i)(xiv) had previously been deleted from the amended points of defence. That would leave the matters pleaded in paragraphs 8(i)(iii), 8(m), 8(n) and 12(c) as the bases for the purported termination of the contract under clause 13.1(g). Ms Hennessy submits that, taken at their highest, those matters are incapable of supporting a finding that Unit 2304 was substantially damaged within the meaning of clause 13.1(g) of the contract. I am not persuaded that is an issue that should be summarily determined on this application. The existence of the matters pleaded in those remaining paragraphs, and (if those matters are established) the question whether Unit 2304 was substantially damaged as a result, are issues which should be left for trial. I decline to grant the relief Ms Hennessy seeks in relation to paragraphs 16(b)(i) and 25(c) of the amended points of defence.Conclusion For the reasons set out above, I will order that paragraphs 8(i)(i), 8(i)(iv), 8(l) and 12(d) of the amended points of defence filed on 29 May 2025 be struck out. I will hear the parties as to costs.

Ratio Decidendi

Legal Principle Established

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CITATION:	Hennessy v CAV Gasworks Pty Ltd [2025] QSC 266
PARTIES:	AMY JANE HENNESSY (applicant) v CAV GASWORKS PTY LTD (ACN 603 728 338) AS TRUSTEE FOR THE CAV GASWORKS TRUST (respondent)
FILE NO/S:	BS 10560 of 2024
DIVISION:	Trial division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	21 October 2025
DELIVERED AT:	Brisbane
HEARING DATE:	25 September 2025
JUDGE:	Cooper J
ORDER:	Paragraphs 8(i)(i), 8(i)(iv), 8(l) and 12(d) of the amended points of defence filed on 29 May 2025 are struck out.
CATCHWORDS:	PROCEDURE – PLEADINGS – STRIKING OUT – OTHERWISE ABUSE OF PROCESS – where the applicant entered a contract to purchase an apartment “off the plan” from the respondent – where the applicant seeks specific performance of that contract – where the respondent alleged that, among other construction defects, timber floors installed in the apartment required removal and replacement before the contract could complete – where the respondent filed expert evidence addressing the alleged defects in the timber floors – where the parties agreed a date on which the applicant’s expert witness would inspect the apartment to prepare a report addressing the alleged construction defects, including the defects in the timber floors – where the respondent caused the timber floors to be removed before the date the applicant’s expert inspected the apartment – where the applicant’s expert has provided a report containing opinions, based on the evidence available to him, as to the likelihood that the timber floors required removal and replacement – whether the respondent’s allegations concerning defects in the timber floors should be struck out on the basis that a fair trial of those issues is no longer possible Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27, discussed British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524; [2002] VSCA 197, cited Clark v New South Wales (2006) 66 NSWLR 640; [2006] NSWSC 673, followed Fuji Xerox Australia Pty Ltd v Lee [2003] QSC 303, cited Katsilis v Broken Hill Pty Co Ltd (1977) 18 ALR 181, cited Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264, followed Sun v He (No 2) [2020] NSWSC 1298, cited Uniform Civil Procedure Rules 1999 (Qld) r 165, r 171, r 250
COUNSEL:	MC Long for the applicant MD Martin KC with DV Ferraro for the respondent
SOLICITORS:	HWL Ebsworth Lawyers for the applicant O’Shea & Partners Lawyers for the respondent