Retallick v The Owners - Strata Plan No.90567 - [2025] VSC 576

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT WANGARATTA

COMMON LAW DIVISION
CIVIL CIRCUIT LIST

S ECI 2022 01914

BETWEEN:

ELIZABETH ANN RETALLICK	Plaintiff
v
THE OWNERS - STRATA PLAN NO. 90567 & Ors (according to the attached schedule)	Defendants

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JUDGE:	FORBES J
WHERE HELD:	Wangaratta
DATE OF HEARING:	10 June 2025
DATE OF RULING:	12 September 2025
CASE MAY BE CITED AS:	Retallick v The Owners – Strata Plan No. 90567 & Ors
MEDIUM NEUTRAL CITATION:	[2025] VSC 576

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PRACTICE AND PROCEDURE ― SUMMARY JUDGMENT APPLICATION ― Applications by third parties for summary judgment, or in the alternative, strike out of the first defendant’s third party notices ― Laying of a polished concrete surface within part of construction of a development including a shopping precinct ― Whether documentary evidence provided in application makes clear that a claim against the third parties for liability for construction of the pedestrian surface has no real prospect of success ― Where a factual dispute about circumstances and responsibility for construction of the polished concrete surface in the relevant area of the Development is raised by the documents and affidavit evidence ― Summary judgment refused ― ss 62 and 63 of the Civil Procedure Act (2010) (Vic) ― Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) VR 27 ― 230V Harvest Home Road Pty Ltd v Salvo & Ors [2021] VSC 558.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Fiona Crock	Nevin Lenne Gross
For the Defendant	Lachlan Allan	HWL Ebsworth Lawyers
For the First Third Party	Alexander Di Stefano	McGilvray Law
For the Second Third Party	Kahlia Shenstone	Crisp Law

Contents

A.. Background

B.. Applications

C.. Matters of fact

C.1          The pleadings
C.2          Uncontroversial matters
C.3          Documents produced by the parties
C.4          Evidence of DOMA Group
C.5          Evidence of BLOC
C.6          Evidence of the defendant

D.. Principles

E... Submissions

F... Consideration

HER HONOUR:

A Background

Elizabeth Retallick alleges injuries sustained on or about 28 May 2019, when she entered the shopping complex in the ‘Volt Lane precinct’ in Albury. She claims that she slipped and fell when she stepped onto a polished concrete floor. The defendant is sued as the occupier of the common property of the market precinct where the fall occurred. The defendant has denied negligence and issued third party proceedings against DOMA Group Pty Limited (DOMA Group / first third party) and BLOC (ACT) Pty Ltd (BLOC / second third party). The defendant’s Amended Third Party Notice (‘Third Party Notice’) alleges that if it has a liability to the plaintiff, then the third parties are also liable as they were ‘contracted to construct a commercial shopping complex located at the premises … which included the installation of new concrete pedestrian surfaces.’[1]
[1]Defendant, ‘Defendant’s Amended Third Party Notice’ filed 6 March 2025 (‘Third Party Notice’), 3 [5].

B Applications

The third parties have each made application for summary judgment, or, in the alternative, to strike out the Third Party Notice. Those applications were resisted by the defendant. I heard the applications remotely at the commencement of the Wangaratta circuit. The trial itself was adjourned from the Wangaratta circuit and was to be relisted following the hearing of the applications, in accordance with orders of 19 May 2025.
The DOMA Group summons was filed 14 May 2025 and relies principally on an affidavit of Paul Powderly affirmed 13 May 2025. Mr Powderly is a director and shareholder of Volt Lane Pty Ltd, a company incorporated for the purpose of developing the land known as Volt Lane in Albury.
The BLOC summons was filed on 15 May 2025. BLOC relies on an affidavit affirmed by Mr Powderly on 15 May 2025, supplementary to that affirmed on 13 May 2025 on behalf of DOMA Group. In addition BLOC also relies on two affidavits of Adrian Sky, the commercial manager of BLOC, affirmed[2] on 15 May 2025 and 6 June 2025 respectively.
[2]The jurat of Mr Sky’s affidavit of 6 June 2025 notes the affidavit was ‘sworn’, but the introductory passages refers to affirming. For consistency, this affidavit will be referred to as ‘affirmed’.
In resisting the applications the defendant relies on three affidavits of its solicitor, Aayushee Sharma affirmed 28 May 2025, 6 June 2025 and 10 June 2025 respectively.[3]
[3]At the hearing the Court was informed that there was four affidavits of Aayushee Sharma, including an affidavit dated 20 February 2025. At page 30 of the transcript of the hearing, the Court was taken to an exhibit to this purported affidavit, being an email from Mr Skye to Ms Sharma. The Court was otherwise not taken to this affidavit during the hearing. The Court subsequently located this exhibit as part of Ms Sharma’s affidavit affirmed 28 May 2025 at 221–222 of the exhibit bundle.
All parties relied on written submissions: DOMA Group dated 13 May 2025, BLOC dated 5 June 2025 and the defendant dated 10 June 2025.

C Matters of fact

C.1 The pleadings

The plaintiff pleads the defendant’s liability arises as occupier in negligence in relation to the state of the polished concrete pedestrian surface where she slipped. In its Third Party Notice, the defendant alleges both third parties carried on the business of providing construction and building services;[4] were contracted to construct a commercial shopping complex including installation of concrete pedestrian surfaces;[5] and in carrying out the construction of the shopping complex knew, or ought to have known, that non-compliance with the surface specifications authored by the architect gave rise to a foreseeable risk of injury.[6] Against the third parties the defendant alleges that the pedestrian surface at the location of the plaintiff’s fall did not meet the architect’s specifications.[7] An alternative plea alleges the construction was not in accordance with the architect’s construction plans.[8]
[4]Third party notice (n 1) 3, [2], [2A].
[5]Ibid 3, [5].
[6]Ibid 3–4, [6]–[7].
[7]Ibid 4, [8].
[8]Ibid 4–5, [8A].

C.2 Uncontroversial matters

The area in question is part of a development of a city block in Albury. The overall development (the ‘Volt Lane Development’/’the Development’) comprises a number of areas including an ATO building, a multi-storey carpark, and a shopping precinct called Volt Lane Markets and an outdoor carpark. The architectural drawings for the Volt Lane Development have been prepared by May + Russell architects.
As between plaintiff and defendant, the area where the plaintiff fell is accepted to be at the northern entrance to the shopping precinct. On a plan marked up by the defendant and replicated below,[9] it is described as an outdoor undercover area, outlined in blue and marked as Area B. The defendant’s evidence also describes Area A as exposed external areas laid with pavers and Area C as an indoor area where polished concrete has been laid. In the third parties’ material, Area B is highlighted in pink. At least for the purposes of the applications the parties do not dispute the location of the plaintiff’s fall.
[9]The plan is extracted from architect drawing A200.1 and marked up by the defendant.

C.3 Documents produced by the parties

The defendant has issued subpoenas to DOMA Group, BLOC and Volt Lane Pty Ltd, amongst others, in an attempt to ascertain who was responsible for laying the polished concrete. The third parties have also relied on documents produced by them and exhibited to their affidavits in support. This list below is not exhaustive but identifies the principal documents relied on.
(a)Ground Floor Key Plan 109101F – S101[B] dated 6 March 2012 (slab plan) relating to the slab, a document produced under subpoena by BLOC.[10] It appears that this is an engineering drawing.[11]
[10]Affidavit of Aayushee Sharma, affirmed 28 May 2025, Document ‘Tab 14’ in Exhibit ‘AS–1’, 92.
[11]Drawn by AWT Consulting Engineers.
(b)L-201 revision B (landscape finish plan) described as surface finishes plans produced by BLOC in answer to a subpoena. The date is partly obscured but has a handwritten addendum dated 2 May 2012. The document is part of the Tender documentation for the Volt Lane Development. It is a document under the logo of Oculus, Landscape Architect.[12]
[12]Ibid, Document ‘Tab 19’ in Exhibit ‘AS–1’, 226.
(c)A letter dated 5 May 2012, titled ‘Addendum No. 6’, addressed to ‘ALL TENDERERS’ regarding the Volt Lane Markets Project – Civil and Landscaping Tender. This document responds to requests for further information (Tender Addendum), and references the marked up landscape finish plan.[13]
[13]Ibid, Document ‘Tab 20’ in Exhibit ‘AS–1’, 227.
(d)A Ground Floor plan (drawing A200.1) version K stamped ‘approved’ on 4 July 2013, a drawing created by May + Russell and produced by them under subpoena.[14]
(e)A Slab Setout plan (drawing A213) produced under subpoena by architects May + Russell, version G dated 11 December 2013.[15]
(f)A May + Russell authored document titled ‘Supplementary concrete finishes’ dated 4 September 2013, version C issued for construction (concrete finishes specification document).[16]
(g)An unexecuted contract titled Major Works Subcontract’ between DOMA Constructions Pty Ltd and Walsh Earthmoving (Vic) Pty Ltd (Walsh Earthmoving) for Civil and Landscaping works at the Development (the external works contract).[17] The external works contract relates to ‘the performance of civil and landscaping works at the external areas of the premises’.[18] It comprises eleven discrete separable areas of works throughout the entire development (areas A–L), of which two relate to the market precinct (C and D). The external works contract was produced by BLOC under subpoena.[19] Documents incorporated into this contract included two landscape drawings for tender:
(i)Schedule 11, identified as being the “Separable Portions Area Plan and Volt Lane Volt Lane [sic] Development Site Plan”[20], being areas A to L, and
(ii)Schedule 12, identified as being the ‘Volt Lane Development Civil and Landscaping Agreed Construction Program’, which identifies eleven budget areas by colour shading (the budget area landscape plan).[21]
(iii)Schedule 5 lists the contract documents which include reference to (b) design specification(s), (c) design drawing(s) and (f) scope of works documents.
(h)An executed contract between Volt Lane Pty Ltd and JS Consulting dated 9 January 2014 entitled ‘Construction Management Contract’ for the market precinct (internal works contract).[22] Both drawing A200.1 and drawing A213[23] form part of the documents comprising this contract.
[14]Ibid, Document ‘Tab 21’ in Exhibit ‘AS–1’, 268.
[15]Ibid, Document ‘Tab 15’ in Exhibit ‘AS–1’, 93. Also in exhibit ‘PP’, 93, exhibited to the affidavit of Paul Powderly, affirmed 13 May 2025.
[16]Ibid, Document ‘Tab 16’ in Exhibit ‘AS–1’, 94.
[17]Ibid, Document ‘Tab 17’ in Exhibit ‘AS–1’, 100–219; Affidavit of Paul Powderly, affirmed 13 May 2025, Exhibit ‘PP–1’, 1–99. In comparing the two exhibited documents, it appears the version of the external works contract provided by Mr Powderly is missing part of schedule 4 and all of schedules 5–13.
[18]Sharma (n 9) 7 [38].
[19]Ibid.
[20]Ibid, Document ‘Tab 17’ in Exhibit ‘AS–1’, 214–215.
[21]Ibid, Document ‘Tab 17’ in Exhibit ‘AS–1’, 216–217.
[22]Ibid, Document ‘Tab 21’ in Exhibit ‘AS–1’, 229–326.
[23]Specifically, drawing A213, version ‘E’.

C.4 Evidence of DOMA Group

DOMA Group has not yet filed a defence. It has authorised Mr Powderly to swear the affidavit in support of the application on its behalf. Mr Powderly states:
7.To assist in the Development, Volt Lane Pty Ltd entered a joint venture arrangement with DOMA Constructions Pty Ltd (ACN 143 347 273) for the purposes:
(a)       developing a masterplan for the Development; and
(b)       the construction of the ATO building,
(‘the Albury JV’).
…
10.      The First Third Party was not involved in the Development.
11.The First Third Party’s related entity, Doma Constructions, was involved in the Development as a joint venture partner with Volt Lane Pty Ltd in a limited capacity relating to the development of a masterplan and was responsible for the construction of the ATO building.
Australian Taxation Office Building
12.In or around April 2010, the Albury JV engaged the Second Third Party to construct the Australian Taxation Office building and complete related works.
…
14The First Third Party was not involved in the construction of the ATO building or the related works.[24]
[24]Affidavit of Paul Powderly, affirmed 13 May 2025, 2 [7]–[14].
Mr Powderly exhibits two contracts, being:
(a)the external works contract between DOMA Constructions and Walsh Earthmoving; and
(b)the internal works contract, between Volt Lane and JS Consulting.
He deposes that DOMA Group was not involved in:
(a)the Development;[25]
(b)the construction of the ATO building;[26]
(c)the construction of the car park and markets; or[27]
(d)the fit-out and completion of the markets.[28]
[25]Ibid 2 [10]
[26]Ibid 2 [14]
[27]Ibid 3 [17]
[28]Ibid 3 [24].
By reference to drawing A200.1, he deposes that the areas ‘completed previously by Walsh Earthmoving are shaded in grey, and the unshaded areas indicate where works are to be completed by JS Consulting’.[29] As Area B is unshaded, his evidence is that this indicates work to be completed by JS Consulting.
[29]Ibid 3–4 [28].

C.5 Evidence of BLOC

BLOC relies on the supplementary affidavit of Paul Powderly. In this affidavit, Mr Powderly deposes, to the best of his knowledge, that BLOC ceased working on the Development prior to the commencement of works subject of the internal works contract.[30]
[30]Affidavit of Paul Powderly, affirmed 15 May 2025, 2 [3].
Mr Sky’s affidavit of 15 May 2025 is prepared with regard to Mr Powderly’s first affidavit. He also deposes that:
(a)BLOC was ‘involved’[31] with a joint venture between Volt Lane and DOMA Constructions, limited to construction the ATO building;[32]
(b)BLOC and Volt Lane were ‘involved’ in the construction of a multi-storey carpark and the structure of the markets;[33] and
(c)DOMA Constructions and Walsh Earthmoving entered into a contract regarding the provision of ‘Civil and landscaping works’[34] (i.e. the external works contract); and
(d)BLOC was engaged in only a supervisory capacity for the landscaping works of the Development.
[31]Affidavit of Adrian Sky, 15 May 2025, 2 [9].
[32]Ibid.
[33]Ibid, 2 [12].
[34]Ibid, 3 [16].
He deposes to BLOC no longer holding contractual documents for the work identified in paragraph (b) above,[35] nor any record of engagement for the works in paragraph (c).[36] However, he deposes to the work outlined in paragraph (b) not involving the fitting out of the market interior[37] and that the work outlined in paragraph (c) was completed by November 2012.[38] He states concrete pavers were laid under BLOC’s supervision in Area B.[39] Mr Sky’s evidence as to the supervisory role in relation to the external works contract was based upon his review of ‘the documentation’.[40]
[35]Ibid, 2 [13].
[36]Ibid, 3 [19].
[37]Ibid, 2 [15].
[38]Ibid, 3 [21].
[39]Ibid, 3 [18], [20].
[40]Ibid, 3 [19].
Mr Sky deposes to a belief that Area B has been resurfaced with polished concrete as part of the internal market fit-out.[41] This is based upon drawing A200.1, as exhibited to Mr Powderly’s first affidavit as showing that Area B was to be paved.[42]
[41]Ibid, 4 [28]–[29].
[42]Ibid, 4 [30].

C.6 Evidence of the defendant

The affidavit of Ms Sharma of 28 May 2025 exhibits documents relied on by the defendant. These include some of the documents defined above, as well as correspondence with solicitors for the First Third Party prior to the issue of the present application. That correspondence included confirmation from the solicitors acting for DOMA Group Pty Limited that their instructions were:
(a)DOMA Group ‘built the ‘ATO office’ only’;[43]
(b)That:
The only affiliation our client has with the development, is that our client and Volt Land (sic) Pty Ltd formed a joint venture for the purposes of developing a masterplan. For all intents and purposes, we are instructed that Volt Lane Pty Ltd was the developer, not our client.[44]
(c)Volt Lane contracted with:
(i)BLOC to build the carpark and the Volt Lane markets; and
(ii)JS Consulting to complete the fit-out.[45]
[43]Sharma (n 9) Document ‘Tab 8’ in Exhibit ‘AS–1’, 64.
[44]Ibid, Document ‘Tab 10’, in Exhibit ‘AS–1’, 75.
[45]Ibid.
Relevantly, the correspondence made no comment or reference to the external works contract, despite the first third party later relying on the existence of this contract.
The defendant also relies on architectural drawings that identify DOMA Group.[46] These include drawing A200.1[47] and drawing A213 where DOMA Group is identified as ‘the Contractor’, as well as the engineering slab plan which refers to DOMA Group.
[46]Ibid, Document ‘Tab 15’ in Exhibit ‘AS–1’, 93.
[47]Ibid, Document ‘Tab 21’ in Exhibit ‘AS–1’, 268.
The defendant also relies on the absence of any written communication by the solicitors for DOMA Group, advising of involvement of its related entity DOMA Constructions Pty Ltd. This is despite requests by Ms Sharma that Doma Group’s solicitors identify the entity responsible for construction, if this was not DOMA Group.[48]
[48]Affidavit of Aayushee Sharma, affirmed 6 June 2025, 2 [10].
The affidavit records unsuccessful attempts to serve a subpoena for the production of documents upon Volt Lane via the company’s registered accountant and via Mr Powderly personally.[49]
[49]Sharma (n 9) 4 [25].

D Principles

The applicable principles for a summary judgment application were not in dispute. The test for a grant of summary judgment under ss 62 or 63 of the Civil Procedure Act is set out in Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd.[50] An application for summary dismissal must show the claim or defence made against a party has no real prospect of success. The Third Parties therefore must each show the defendant’s claim does not have a real chance of success.
[50](2013) 42 VR 27.
The words of Lysaght are also to be borne in mind:
[A]t the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.[51]
[51]Ibid 40 [35](d).
The onus of proof resting on the third parties does not require them to positively establish a defence they wish to raise. They are required to establish that the defendant’s claim that the third parties, in their business of carrying on construction and building services planned for or constructed the polished concrete surface in Area B is a claim that has no real chance of success. The matters relied on to establish the character of that claim may be refuted by a defendant’s evidence in responding to the summary dismissal application.[52] In that sense, neither party is required to establish the case they intend to prove, but to demonstrate a real question for trial.
[52]230V Harvest Home Road Pty Ltd v Salvo & Ors [2021] VSC 558.

The alternative application, to strike out the pleading under rule 23.01, requires consideration of whether the pleading is groundless, lacking in legal basis, or put another way, is frivolous or vexatious.

E Submissions

The parties agreed on the relevant principles, but not their application. The third parties submitted that the defendant’s approach reversed the onus of proof, requiring them to prove their defence, when the law requires applicants to demonstrate that the defendant’s pleaded claim has no real prospect of success.
DOMA Group submits that:
(a)It has exhibited a copy of the external works contract which is the relevant contract for works, to which it is not a party;
(b)DOMA Group appears on architectural plans only because it shares a logo with DOMA Constructions and in any event its involvement in the Development was limited to the design of a masterplan. The pleading alleges it was contracted to construct a shopping complex which included the installation of new concrete pedestrian surfaces. The external works contract makes clear that DOMA Group was not contracted to construct the relevant pedestrian surface in area B and, as it was not privy to the relevant agreement, it cannot be liable to the defendant; and
(c)The question is one of documentary rather than witness evidence and the Court’s consideration of the documents presently before the Court would not be materially advanced or assisted by cross-examination, interrogation or discovery. Therefore, notwithstanding the summary nature of the application, the evidence and evidentiary standard should be so considered.
BLOC submits that:
(a)It supervised external landscaping works, including those in the markets that were completed pursuant to the external works contract;
(b)Area B was originally part of the landscaping work supervised by BLOC;
(c)As at November 2012, when BLOC’s involvement in these works was completed, Area B was paved with concrete pavers in accordance with the landscape finishes plan; and
(d)The landscape finish plan, dated 6 March 2012 and produced by BLOC does not list polished concrete as the surface installed in the relevant area.
As a result of these matters BLOC submits that:
(a)It did not install polished concrete;
(b)the external landscaping work required installation of pavers and pavers were laid under its supervision;
(c)the scope of work undertaken by BLOC was limited and did not involve the market fit-out;
(d)it was not a party to the internal works contract;
(e)the internal works contract provided for the installation of polished concrete in the area of the fall; and
(f)it has provided documentation that there was no direction to install polished concrete in the area.[53]
[53]Second Third Party (BLOC), ‘Submissions In Support Of Second Third-Party’s Interlocutory Application For Summary Judgement / Strikeout Of Pleadings’ filed 5 June 2025 [17] (‘BLOC’s Submissions’).
The defendant submits that the third parties have not established by clear evidence that its claims against them have no real prospect of success. It is not appropriate to conduct a mini trial as to the question of what was constructed in Area B, by whom and when, prior to trial and prior to the filing of third party defences and discovery.
The defendant disputes the submission that the documentary evidence is clear and would not be capable of being advanced by cross examination or otherwise by viva voce evidence. The defendant points to contradictions in the available documents. In particular, it notes a discrepancy between drawing A200.1 and drawing A231, both created by May and Russell prior to the internal works contract. It submits that on A200.1 Area B is shaded differently to those identified as part of the Stage 1 works and the surface to be constructed in Area B is not identified on that plan. This does not establish that Area B was completed as part of Stage 1. Further it submits that A231 does not prescribe the surface in Area B ( or Area A) and identified polished concrete in Area C only. The defendant submits that there is a contradiction as to whether Area B was to form part of the external works or internal works for the market precinct. This contradiction cannot be explained by the plans. At the very least if the First Third Party, was responsible for a ‘masterplan’ of the Development, any discrepancy in the key project documents for construction was a matter resting with DOMA Group.
Given DOMA Group’s admission on instructions of its involvement in designing a masterplan, the defendant submits that a question arises as to the discrepancy between the documents calling for pavers and the existence of polished concrete.
The defendant also submits that its claim against the third parties is broader than an allegation that the DOMA Group actually constructed the polished concrete surface, alleging involvement in the design process. It points to DOMA Group’s admitted involvement in design of the masterplan. It submits that the shared logo on documentation, and the accompanying description as ‘Contractor’, are matters appropriate to be investigated following discovery and interrogation and tested by cross examination.
Given DOMA Group’s involvement in a masterplan, the defendant also submits that a question arises as to how polished concrete came to be laid in the area when the construction plans called for pavers. That question is not one clearly answered on the present evidence against the third parties.

F Consideration

For the reasons that follow, I am not persuaded that the third parties have demonstrated that the defendant’s claims against them have no real prospect of success.
DOMA Group has not yet filed a defence. It has made a forensic decision to rely upon Mr Powderly’s evidence which does not explain the basis upon which he was authorised to provide the affidavit on behalf of DOMA Group. As a result it has not provided any evidence from a director or person with direct knowledge of the relevant matters concerning the roles of related companies in the DOMA group in the Development.
Insofar as DOMA Group relies on Mr Powderly’s evidence, his affidavits contradict the instructions given to its lawyers as communicated in correspondence prior to issuing its summons for summary dismissal. Notably:
(a)Although Mr Powderly states that DOMA Group had no involvement in the Development on instructions, DOMA Group asserts that it had a ‘limited involvement’ as a joint venture partner developing a masterplan. This is repeated in the First Third Party’s submissions that DOMA Group was ‘only involved in the design of the masterplan’.
(b)Mr Powderly states that DOMA Constructions was a joint venture partner with Volt Lane Pty Ltd and responsible for construction of the ATO building, and that the joint venture engaged BLOC to construct the ATO building and related works although DOMA Group instructions are that it was a joint venture partner.
(c)DOMA Group instructed its lawyers that it built the ATO Office only. By contrast, Mr Powderly and Mr Sky refer to a joint venture between Volt Lane and DOMA Constructions with which BLOC was involved (in an unidentified capacity) in constructing the ATO building.
I appreciate that the question of construction of the ATO is not itself a matter directly bearing on the responsibility for construction of the pedestrian surface in another area of the Development. However, the discrepancy in the evidence about the role of the First Third Party and its related entity in the Development demonstrates that the evidence as to roles and responsibilities of DOMA Group in the Development is not presently a matter that could be said to be clear and beyond controversy.
Further, and perhaps critically, the affidavit evidence of Mr Powderly and Mr Sky is contradictory as to responsibility for the concrete pedestrian surface in area B. Mr Powderly contends that it formed part of the internal works contract between Volt Lane and JS Consulting. He does so on the basis that drawing A200.1. That document is relied on to demonstrate that Area B, as an unshaded area, was not completed as part of the work undertaken by Walsh Earthmoving. Contrary to Mr Powderly’s affidavit, a number of documents do identify Area B as falling within the external works contract. These include the Budget areas schedule which incorporates Area B as part of Budget area D, as does Schedule 11.
To the contrary, Mr Sky deposes positively that BLOC supervised the laying of concrete pavers in Area B as part of the external works contract, and that this was completed by November 2012. He relies on the landscape finishes document dated 2 May 2012 as marked up. This appears to be a document created to seek further information as part of the tender process for the external works contract. If so it could not be evidence of what was actually done once that contract was awarded and signed. The tender addendum notes that as a result of the marked up documents, including those provided by Oculus, that ‘DOMA will be issuing an updated set of civil drawings on …8/5/2012’. In any event, the landscape finishes document pre-dates the actual work and therefore is not a reliable basis for Mr Sky’s evidence that the laying of pavers in Area B actually occurred and was supervised by BLOC. Mr Sky, as it transpired in the hearing, was not in the role of commercial manager as at 2012, and indeed it is not even clear on the evidence that he was engaged by BLOC in any capacity at the relevant time. His affidavit is unsatisfactory as to the basis of his information and belief beyond his review of Mr Powderly’s affidavit and his review of other undisclosed documents. Apart from these contradictions, it is not clear to me that that the grey shaded area in A200.1 necessarily correlates to work under the external works contract as Mr Powderly contends. The legend for A200.1 is that areas shaded grey refers to ‘Stage 1 Works completed’. Stage 1 Works is not defined in the evidence.
‘Stage 1 Works’ completed on other architectural drawings such as drawing A213 have differently marked areas as ‘Stage 1 Works completed’. An extract of drawing A213 is set out here with Area B shaded in blue.[54]
[54] Affidavit of Paul Powderly, affirmed 15 May 2025, 168.
The shaded areas in drawing 200.1 and drawing A231 bear no correlation to the external works contract and in particular the budget area landscape plan and Schedule 11 both of which include Area B. Drawing A213, shows Area C but not area B as being finished with a honed concrete slab. It also references landscape architects documentation for ‘external paving details’. Any documentary inconsistency is amplified by the contradictory affidavit evidence of the Third Parties as to completion of the surface of Area B. Mr Sky’s reliance of A200 to demonstrate that pavers were laid is not evidence of what was actually done. It is evidence of what was intended as at [date of plan] only. None of the documentary evidence to which I was taken confirms a requirement to lay polished concrete in Area B. Nor is there is a document that has been produced to demonstrate that polished concrete was the intended finish to area B.
Whilst the present information does not implicate DOMA Group as a party to either the external works contract nor the internal works contract, its role in the construction of the market precinct, even to the extent of an ‘involvement in developing a masterplan’ is somewhat opaque. None of the joint venture documents that delineate DOMA Group’s role in the Development are before the Court.
While the DOMA Group evidence does not describe what is meant by a masterplan, it could be inferred that this as the overall plan for the Development as produced by the architects. Its role in co-ordinating and engaging contractors and providing the relevant construction plans for those tenders is unclear. Documents incorporated into the external works contract such as the May and Russell drawings, identify DOMA Group as the contractor, the Tender Addendum is sent out on DOMA Group letterhead (although signed by DOMA Constructions) and indicates that the civil and landscaping tender would be assessed by a committee ‘formed with representatives from DOMA, the Albury City Council, and Volt Lane’. The external works contract, although to be signed by DOMA Constructions, is intended to be signed by them as agent. The agency is variously described as for Volt Lane Pty Ltd as trustee, and elsewhere in the document as agent for Albury JV Pty Ltd.[55] What has been put in evidence as to the external works contract is version 1 dated 16 February 2012 of a proposed contract, is unexecuted, and predates the conclusion of the tender process. It’s status as a binding contractual document is open to question. While DOMA Group is not party to the signed internal works contract, the names of four persons associated with DOMA Group appears on the distribution list. ‘DOMA Group’ generally is described as Contractor on documents incorporated into the contract.[56]
[55]Per affidavit of Aayushee Sharma, affirmed 28 May 2025, 7.
[56]For example, per the construction drawing A200.1
No doubt the corporate structure of the ‘DOMA Group’ differentiates related corporate entities. What is unexplained by the evidence is the division of responsibility in the Development of entities within the group. As such the extent of involvement by DOMA Group in the contractual arrangements for construction of the relevant aspect of the Development is not clear. The information provided by DOMA Group as to relevant contracts prior to the issue of its summary dismissal application did not make mention of a contract between its related entity DOMA Constructions and Walsh Earthmoving. [57]
[57]Affidavit of Aayushee Sharma, affirmed 28 May 2025, 75.
I have already addressed the evidence of Mr Sky. On the basis that BLOC supervised aspects of the external works contract including the laying of the surface of Area B, an arguable cause of action is demonstrated giving rise to a factual dispute as to what was in fact done and in what circumstances. As I have outlined, the present documentary and affidavit evidence does not put that question beyond doubt.
The submission that the internal works contract provides for laying polished concrete in Area B is not borne out by the documents incorporated into that contract. A213 expressly contradicts that proposition. Neither third party can point to a document at present that clearly identifies what surface was laid in Area B, when and by whom.
Even if I am wrong about the prospects of success of the defendant in its third party claims, I hold the view that under s 64 of the Civil Procedure Act, it would not be in the interests of justice to summarily dismiss the claim without affording the defendant an opportunity to conduct a hearing on the merits after filing of third party defences, full discovery and interrogation.
As to the alternative relief seeking striking out the third party statement of claim, I do not propose to strike out the present pleading. It is apparent that the defendant’s claim may well require repleading upon consideration of the documents that have come to light in the course of these applications. The existing pleading was prepared based upon the documents available to the defendant through an informal request for information and an incomplete subpoena process. The defendant identifies a wider claim against the third parties than being a party to the relevant contract to construct. In relation to BLOC the admitted role in construction is a supervisory one. In relation to DOMA Group the role in construction as a joint venture partner and related entity to a builder of some parts of the Development is likely to require refinement. Any application to amend the pleading by the defendant ought be made following engagement by the third parties with the defendant about pleading deficiencies that have been first raised in the course of this application.
In the circumstances the applications for summary dismissal and the alternative relief of striking out the current pleadings will be dismissed.

SCHEDULE OF PARTIES

S ECI 2022 01914
BETWEEN:
ELIZABETH ANN RETALLICK	Plaintiff
- v -
THE OWNERS - STRATA PLAN NO.90567	Defendant
DOMA GROUP PTY LIMITED	First Third Party
BLOC (ACT) PTY LTD	Second Third Party

Retallick v The Owners - Strata Plan No.90567

[2025] VSC 576

12 September 2025