Background
In December 2013, Jonathan and Olivia Clark contracted with builder On the Level (Qld) Pty Ltd (OTL) to construct a residential home in Roma, Queensland. Because the site soil was classified as extremely reactive (E-D classification), OTL engaged engineer HH (Caboolture) Pty Ltd (HHC) to design footings and slabs compliant with Australian Standard AS 2870-2011. In August and October 2014, HHC’s engineer Mr Hendriks signed the statutory Form 15 and Form 16 certificates under the Building Act 1975 (Qld), certifying that the footing and slab design and construction met the AS 2870-2011 requirements for the E-D soil classification. The Clarks took possession in April 2015 after paying the contract price in full.
From 2016, progressive cracking appeared in the dwelling. A 2021 soil report reclassified the site as P-D due to uncontrolled fill discovered beneath the slab, and a 2023 structural engineering report identified 43 internal cracks and numerous other defects. The Clarks commenced proceedings against OTL in QCAT in August 2023 (for breach of contract, negligence and misleading and deceptive conduct) and separately sued HHC in the Roma District Court. After a protracted procedural history involving multiple transfers, Crow J consolidated all four related proceedings in the Supreme Court at Rockhampton in April 2026 and directed the filing of a consolidated amended statement of claim (CASOC).
By application filed 1 May 2026, the Clarks sought leave under s 16 of the Civil Proceedings Act 2011 (Qld) to amend the CASOC to include, at paragraphs 96–110, new causes of action against HHC for misleading and deceptive conduct under s 18 of the Australian Consumer Law (ACL) and misrepresentation under s 29(b) and (g) of the ACL, based on the representations made by the Form 15 and Form 16 certifications. OTL did not oppose any amendment; only HHC contested the representation claims.
The Court’s Holding
Crow J granted leave to amend under s 16 of the Civil Proceedings Act 2011. Because neither party contended that the ACL limitation period had clearly expired, r 376 of the Uniform Civil Procedure Rules 1999 (Qld) was not engaged, leaving the court to exercise the broader discretion conferred by s 16(2) in the interests of justice. Applying the “substantially the same facts” test as articulated in Draney v Barry [2002] 1 Qd R 145 and Stimpson v O’Toole [2022] QCA 194, the court concluded that the representation claims arose from the same factual “story” as the existing negligence and breach of contract claims against HHC. The Forms 15 and 16 were, by statute, a necessary precondition to the certificate of occupancy already pleaded in the original claim, and HHC itself conceded those forms could have been tendered at trial without objection under the old pleadings.
The court rejected HHC’s prejudice argument. While HHC raised the fact that certifying engineer Mr Hendriks had died after proceedings commenced, no affidavit or specific evidence of prejudice was filed. Crow J found only a general, unparticularised prejudice which was insufficient to outweigh the interests of justice in allowing the amendment. The court further noted that the factual issue of the Clarks’ reliance on the certifications — the one genuinely new element introduced by the representation claims — was a matter within the Clarks’ own knowledge and could be fairly tested at trial even with the passage of time. The delay in proceedings was explicable by the evolving nature of the defects, the protracted QCAT process, and the multi-court transfer history, none of which was attributable solely to the applicants.
Although the court applied the broader s 16 discretion, it expressly found that the applicants had also met the higher standard under r 376(4)(b) — that the new causes of action arose out of substantially the same facts as those already pleaded. The particulars of HHC’s lack of reasonable grounds for making the representations were drawn directly from the negligence particulars at paragraphs 84–89 of the CASOC, reinforcing that the “story” had not materially changed.
Key Takeaways
- Where r 376 UCPR is not engaged (because limitation is not clearly expired), courts apply the broader s 16 Civil Proceedings Act 2011 discretion and ask whether amendment is in the interests of justice, weighing all relevant factors including prejudice, delay, and the nature of the new claim.
- The “substantially the same facts” test is not a straitjacket: additional facts needed for a new cause of action do not defeat amendment if they arise from the same overall factual narrative as the existing claims — here, HHC’s engineering certification and non-compliance with AS 2870-2011.
- Statutory building certificates (Forms 15 and 16 under the Building Act 1975) are factually and legislatively integral to a building negligence claim even if not expressly referenced in the original pleading; their conceded admissibility at trial under the old pleadings was decisive.
- Bare assertions of prejudice — including the death of a key witness — will not defeat an amendment application absent an affidavit particularising specific evidentiary or forensic harm suffered as a result of the amendment.
Why It Matters
This decision is a practical guide for Queensland building and construction litigants navigating amendment applications in consolidated, multi-defendant proceedings. It confirms that ACL misrepresentation claims founded on statutory engineering certifications can be grafted onto existing negligence pleadings without meeting the stricter r 376 threshold, provided the underlying factual narrative is the same. Practitioners should note that conceding the admissibility of documents under existing pleadings may effectively foreclose an objection to amendments that rely on those same documents.
The case also highlights the court’s willingness to accommodate amendment in complex building defect litigation where defects have emerged progressively over years and the proceedings have moved through multiple courts. Courts will look past procedural delay where the complexity of the dispute — multiple parties, evolving damage, and multi-forum transfers — explains the timeline. For respondents resisting amendment, unsupported prejudice submissions are unlikely to succeed; specific evidence of harm attributable to the amendment, rather than to the passage of time generally, is required.