The Owners - Units Plan 4421 v Geocon Constructors (ACT) Pty Ltd (No 3)

[2025] ACTSC 333

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

The Owners - Units Plan 4421 v Geocon Constructors (ACT) Pty Ltd (No 3)

Citation: 

[2025] ACTSC 333

Hearing Date: 

31 July 2025

Decision Date: 

31 July 2025

Before:

Mossop J

Decision:

See [8]

Catchwords: 

PRACTICE AND PROCEDURE – SUBPOENAS – Whether subpoenas should be issued on defendants prior to close of pleadings – where subpoenas sought to be issued only to particularise existing pleadings – where leave to replead statement of claim granted but as yet unexercised – where position in relation to thirteenth defendant not yet certain – more appropriate to move matter toward closure of pleadings

Cases Cited:

The Owners - Units Plan No 4421 v Geocon Constructors (ACT) Pty Ltd (No 2) [2025] ACTSC 206

Parties: 

The Owners - Units Plan No 4421 (Plaintiff)

Geocon Constructors (ACT) Pty Ltd (First Defendant)

NG Landholdings No. 1 Pty Ltd (Second Defendant)

A.C.N 119 755 734 Pty Ltd (Third Defendant)

Vital Design Solutions Pty Ltd (Fourth Defendant)

Northrop Consulting Engineers Pty Ltd (Fifth Defendant)

O'Neill & Brown Fire Services Pty Ltd (Sixth Defendant)

O'Neill & Brown Plumbing Company Pty Ltd (Seventh Defendant)

Dysen Pty Ltd (Ninth Defendant)

Compendium Design Pty Ltd (Tenth Defendant)

Magnate Tiling Pty Ltd (Eleventh Defendant)

All Things in Concrete Pty Ltd t/a TLC Pumping Pty Ltd & Prestige Pools (Twelfth Defendant)

Nikolaos Georgalis (Thirteenth Defendant)

Darren Sault (Fourteenth Defendant)

Representation: 

Counsel

M Hazan (Plaintiff)

J Steele SC with WDB Buckland (First, Second and Thirteenth Defendants)

Solicitors

Chambers Russell Lawyers (Plaintiff)

Clayton Utz (First, Second and Thirteenth Defendants)

File Number:

SC 506 of 2023

MOSSOP J:

1. Listed before me today was a dispute about subpoenas and, in particular, whether or not subpoenas should be allowed to be issued prior to the close of pleadings. That issue was contested and the subject of written submissions on both sides.

2. It emerged during the course of submissions that one way of addressing the issue would be to simply require defences to be put on. That is because the plaintiff put the desirability of issuing subpoenas not on the basis of an intention to use that material to amend its pleadings but, rather, to support its capacity to particularise the existing pleadings.

3. It appeared to me that it may be more efficient to simply require pleadings to close so as to avoid the issues, or some of the issues, agitated on this application. That has led to consideration of whether or not the leave to replead the case in relation to the thirteenth defendant is to be exercised because that, in turn, would influence the content of the defences. That is because the existing pleadings in relation to the thirteenth defendant were struck out (see The Owners - Units Plan No 4421 v Geocon Constructors (ACT) Pty Ltd (No 2) [2025] ACTSC 206) and there does not seem to be much utility in having a defence put on by a party against whom no claim is presently made.

4. For those reasons, it is necessary to determine whether or not the leave previously granted is to be exercised. That will involve consideration of:

   (a)whether a claim can be pleaded against the thirteenth defendant;

   (b)the limitation consequences of not doing so; and

   (c)if no claim is to be pleaded, the likely removal of the thirteenth defendant from the proceedings.

5. In order to allow that consideration to occur, a period of three weeks was sought by the plaintiff and not opposed by the other parties to the application.

6. The orders that I will make will have the effect of resolving, one way or another, the pleadings in relation to the thirteenth defendant and then allow the case to proceed to the closure of pleadings.

7. It is appropriate, in my view, to reserve all questions of costs so that they can be resolved at a time when there is a fuller appreciation of the facts and at a time when it is necessary to resolve any remaining disputes about the disclosure, one way or another, of documents in the categories the subject of the proposed subpoenas.

8. For those reasons, the orders that I make are:

   (1)Direct that the leave to amend granted on 19 May 2025 extend up until 19 August 2025.

   (2)Direct that the proceedings be listed on 25 August 2025 at 9:15am for directions with an estimate of 30 minutes.

   (3)Direct that the parties provide agreed or competing directions by email to the chambers of Mossop J by 12 noon on 21 August 2025.

   (4)Reserve the question of costs of the application in proceeding dated 3 June 2025 and the amended application in proceeding filed 4 July 2025.

I certify that the preceding eight [8] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: