Wadren Pty Ltd v Probuild Constructions (Aust) Pty Ltd - [2024] VSC 724

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

TECHNOLOGY, ENGINEERING & CONSTRUCTION LIST

S ECI 2023 00960

WADREN PTY LTD (ACN 005 537 235) in its capacity as Trustee for the HOPPERS CROSSING UNIT TRUST (ABN 83 405 769 465) (and others according to the Schedule)	Plaintiffs
v
PROBUILD CONSTRUCTIONS (AUST) PTY LTD (Subject To A Deed of Company Arrangement) (ACN 095 250 945) (and others according to the Schedule)	Defendants
and
QIC PRIVATE CAPITAL PTY LTD (ACN 076 279 528) AS TRUSTEE FOR THE QIC PROPERTY FUND and another according to the Schedule)	Third Parties

S ECI 2023 05073

QIC WERRIBEE PTY LTD (ACN 624 121 204) as Trustee for the QIC WERRIBEE TRUST (and others according to the Schedule)	Plaintiffs
v
WADREN PTY. LTD. (ACN 005 537 235) as Trustee for the HOPPERS CROSSING UNIT TRUST (and others according to the Schedule)	Defendants

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JUDGE:	Delany J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 and 24 October 2024
DATE OF JUDGMENT:	21 November 2024
CASE MAY BE CITED AS:	Wadren Pty Ltd & Anor v Probuild Constructions (Aust) Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2024] VSC 724

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PRACTICE AND PROCEDURE — Two related multi-party proceedings — Building and construction — Applications for trial of separate questions — Technology, Engineering and Construction List — Active case management — Proposed preliminary trial to determine whether errors and defects in design of concrete structures and whether remedial works reasonable and necessary to rectify — Structural engineering expert evidence critical — Existing orders for early expert conclaves and reports — Applications adjourned until after completion of structural engineering expert evidence and any pleading amendments— Orders requiring the timely joinder of any additional parties — Observations concerning the approach to expert evidence in the TEC List — Murphy v State of Victoria [2024] VSCA 238, Tepko Pty Ltd v Water Board (2001) 206 CLR 1, Hyder Consulting (Vic) Pty Ltd v CGU Insurance Ltd [2001] VSC 449, Inpex Operations Australia Pty Ltd v AIG Australia Ltd (No 2) [2023] WASC 61, referred to.

PRACTICE AND PROCEDURE — Civil Procedure Act 2010 (Vic) — Imperative for parties and practitioners engaged in complex litigation to comply with overarching obligations — Civil Procedure Act 2010 (Vic) ss 20, 22, 23 and 29, Part 4.9, s 49 and Practice Note SC CC1 paragraph 8 referred to.

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S ECI 2023 00960

APPEARANCES:	Counsel	Solicitors
For the 1st and 2nd Plaintiffs	Jeffery Gleeson KC with Premala Thiagarajan SC and James Grey	Allens
For the 1st Defendant	Jeremy Slattery KC with Alissa Crittenden	Clyde & Co
For the 2nd and 5th Defendants	Greg Harris KC with Tim Maxwell	Wotton + Kearney
For the 4th and 5th Defendants	Suresh Senathirajah KC with Arjunan Thangarajah	Colin Biggers & Paisley
For the 8th Defendant	Perry Herzfeld SC with Julia Watson	Ashurst
For the 9th Defendant	No appearance

S ECI 2023 05073

APPEARANCES:	Counsel	Solicitors
For the 1st – 4th Plaintiffs	Jonathon Moore…

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.

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Details

Case: [2024] VSC 724
Decision Date: 21 November 2024

CaseChat Overview and Summary

In the case of Wadren Pty Ltd v Probuild Constructions (Aust) Pty Ltd, the dispute involved two related multi-party proceedings in the Supreme Court of Victoria. The proceedings pertained to errors and defects in the design of concrete structures and the necessity of remedial works to rectify these issues. The court was tasked with overseeing the active case management of these matters within the Technology, Engineering and Construction (TEC) List.

The primary legal issues that the court needed to address included whether a preliminary trial should be held to determine the presence of errors and defects in the design, and if the proposed remedial works were reasonable and necessary. Critical to these determinations was the need for comprehensive structural engineering expert evidence. The court also had to consider the existing orders that mandated early expert conclaves and the submission of expert reports. Given the complexity of the issues, the court needed to ensure that the approach to expert evidence was aligned with the principles set out in relevant case law, such as Murphy v State of Victoria [2024] VSCA 238, Tepko Pty Ltd v Water Board (2001) 206 CLR 1, Hyder Consulting (Vic) Pty Ltd v CGU Insurance Ltd [2001] VSC 449, and Inpex Operations Australia Pty Ltd v AIG Australia Ltd (No 2) [2023] WASC 61.

The court decided to adjourn the applications for a trial of separate questions until after the completion of the structural engineering expert evidence and any necessary amendments to the pleadings. The reasoning behind this decision was to ensure that all parties had access to the most current and comprehensive expert evidence before proceeding with the preliminary trial. The court also emphasized the importance of timely joinder of any additional parties to avoid potential delays and to maintain the efficiency of the litigation process. These orders were made to facilitate a more informed and effective resolution of the disputes at hand.

Orders