GOOLWA LIFESTYLE VILLAGE PTY LTD v NEW MILLENNIUM ENTERPRISES PTY LTD IN LIQ & ORS [2026] SADC 73

Applicant: GOOLWA LIFESTYLE VILLAGE PTY LTD AS TRUSTEE OF GOOLWA LIFESTYLE VILLAGE TRUST In Person Counsel: MR R ROSS-SMITH - Solicitor: OUWENS LAWYERS First Respondent: NEW MILLENNIUM ENTERPRISES PTY LTD (IN LIQUIDATION) No Attendance Second Respondent: CRANETEC ENTERPRISES PTY LTD (IN LIQUIDATION) No Attendance Third Respondent: SCOTT ANDREW VALENTINE In Person Counsel: MR D LORBEER - Solicitor: FRANCOM LEGAL Hearing Date/s: 04/07/2025 File No/s: CIV-23-005584 B DISTRICT COURT OF SOUTH AUSTRALIA (Civil: Interlocutory Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. GOOLWA LIFESTYLE VILLAGE PTY LTD v NEW MILLENNIUM ENTERPRISES PTY LTD IN LIQ & ORS [2026] SADC 73 Decision of her Honour Judge Thomas 23 June 2026 PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COURT SUPERVISION - AMENDMENT - GENERALLY PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS - FORM OF PLEADING PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS - STRIKING OUT - DISCLOSING NO REASONABLE CAUSE OF ACTION OR DEFENCE The applicant (Goolwa Lifestyle Village Pty Ltd) is the developer and party to site development agreements with the resident owners of each of 12 villas constructed in a residential park. The applicant alleges it entered into a contract for the supply and installation of lifts to be installed in the villas with one or other of the first and second respondent companies in early April 2018 in reliance on a series of representations made by the first respondent company about the characteristics of the lifts. It further alleges the lifts supplied and installed are defective and incomplete, required extensive rectification works and ultimately were required to be replaced. The third respondent (Mr Valentine) was the sole director of the first and second respondent companies at all material times, held a contractor’s licence under the Home Building Act 1989 (NSW) and is alleged to have authorised the making of the representations by another employee. In its filed statement of claim, the applicant relies on causes of action against the companies for breach of contract, breach of statutory warranties under s 32 of the Building Work Contractors Act 1995 (SA) and breaches of ss 18, 29, 33, 54 and 55 of the Australian Consumer Law, Schedule 2 in the Competition and Consumer Act 2010 (Cth). As against the third respondent, the applicant relies -- 1 of 45 -- on causes of action for his alleged involvement in the first respondent’s contraventions of the Australian Consumer Law. Both companies went into voluntary liquidation in February 2024. The claims against them are the subject of a statutory stay. The applicant now only proceeds against the third respondent. By interlocutory application dated 5 July 2024, the applicant seeks leave to amend in the form of its third proposed statement of claim, relying on causes of action in negligence (a new claim) and for accessorial liability under the Australian Consumer Law. The third respondent opposes leave to amend on grounds that the proposed claim does not disclose reasonable causes of action nor give fair notice of the applicant’s case. The third respondent by interlocutory application dated 15 October 2024 seeks orders striking out those parts of the filed statement of claim that allege his involvement in the first respondent’s contraventions of the Australian Consumer Law. Held: 1. Leave to amend in the form of the third proposed claim is refused. It does not disclose a reasonable cause of action against the third respondent in either negligence or for accessorial liability under the Australian Consumer Law nor does it give fair notice of the applicant’s case against the third respondent. 2. Paragraphs 56-58, 62-63 and 76 of the applicant’s filed statement of claim should be struck out on the basis that they do not disclose a reasonable cause of action against the third respondent. 3. In the interests of finality and for obvious case flow management reasons, it is not appropriate to provide the applicant with a fourth opportunity to reformulate its pleaded claims against the third respondent. Despite considered and lengthy adversarial argument on two occasions, the applicant has again failed to address key inadequacies in its proposed pleading, demonstrating a clear failure and inability to disclose a reasonable cause of action against the third respondent on the facts alleged. Building Work Contractors Act 1995 (SA) ; Uniform Civil Rules 2020 (SA) ; Competition and Consumer Act 2010 (Cth) ; C Sappideen, P Vines & others, Fleming’s Law of Torts (Thomson Reuters, 11th ed, 2024); Home Building Act 1989 (NSW) ; Residential Parks Act 2007 (SA) ; Design and Building Practitioners Act 2020 (NSW), referred to. Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd (2020) 137 SASR 117; Anchorage Capital Master Offshore Ltd v Sparkes (2023) 111 NSWLR 304; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; Astley v Austrust Ltd (1999) 197 CLR 1; Australian Competition and Consumer Commission v Telstra Corporation Ltd (2004) 208 ALR 459; Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640; Banque Commerciale SA v Akhil Holding Ltd (1990)169 CLR 279; Boral Resources v Civil Mining Solutions [2018] SASC 151; Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937; Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 (2014) 254 CLR 185; Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; Channel Seven Adelaide Pty Ltd v Manock [2010] SASCFC 59; Commonwealth of Australia v Verwayen (1990) 170 CLR 394; Community Corporation No 21561 Incorporated & Anor v Pier Apartment Hotel Pty Ltd & Ors [2014] SADC 111; Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241; General Steel Industries Inc v Commissioner for Railways (NSW) (1949) 78 CLR 62; Giorgianni v The Queen (1985) 156 CLR 473; Given v Pryor (1979) 24 ALR 437; Gould v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490; Hallett Concrete Pty Ltd v Adelaide Brighton Cement Ltd [2024] SASCA 80; Hamilton v Whitehead (1988) 166 CLR 121; Hashtag Burgers Pty Ltd v in-N-Out Burgers Inc [2020] FCAFC 235; Hill v Van Erp (1997) 188 CLR 159; Houghton v Arms [2006] 225 CLR 553; JR Consulting & Drafting Pty Ltd v Cummings [2016] FCAFC 20; Keen Mar Corporation v Labrador Park Shopping Centre Pty Ltd (1985) 61 ALR 504; Lee v Westpac Banking Corporation (No 2) [2016] FCA 911; Le Lievre v Gould [1893] 1 QB 491; Mallonland Pty Ltd v Advanta Seeds Pty Ltd (2024) 98 ALJR 956; Nitschke v Foraco Australia Pty Ltd (2014) 120 SASR 162; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR; Perera v Genworth Financial Mortgage Insurance Pty Ltd (2017) 94 NSWLR 83; PPG Development Pty Ltd v Capitanio (2016) 126 SASR 307; Productivity Partners Pty Ltd v ACCC (2023) 297 FCR 180; Productivity Partners Pty Ltd v ACCC (2024) 281 -- 2 of 45 -- CLR 338; Rainham Chemical Works Ltd v Belvedere Fish Guano Company Ltd [1921] 2 AC 465; Rural Press Ltd v ACCC (2003) 216 CLR 53; Said v Butt [1920] 3 KB 497; Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd (2023) 277 CLR 186; State of South Australia v Peat Marwick Mitchell & Co (1997) 24 ACSR 231; Sullivan v Moody (2001) 207 CLR 562; Sutton v AJ Thomson Pty Ltd (1987) 73 ALR 233; Tame v New South Wales (2002) 211 CLR 317; Tsaprazis v Goldcrest Properties Pty Ltd [2000] NSWSC 206; Westpac Banking Corp v Northern Metals Pty Ltd (1989) 14 IPR 499; Williams v Natural Life Health Foods Ltd [1998] 1 WLR 830; Woolcock Street Investments (2004) 216 CLR 515; Yorke v Lucas (1985) 158 CLR 661, considered. -- 3 of 45 -- -- 4 of 45 -- GOOLWA LIFESTYLE VILLAGE PTY LTD v NEW MILLENNIUM ENTERPRISES PTY LTD IN LIQ & ORS [2026] SADC 73 Nature of Application 1 These reasons for decision concern an application for leave to file an amended statement of claim1 in the form of the proposed draft exhibited to the applicant’s solicitor’s third affidavit2 (the Proposed Claim) and the third respondent’s cross application3 to strike out those parts of the applicant’s filed statement of claim4 that allege accessorial liability for contraventions of ss 18, 29, 33, 54 and 55 of the Australian Consumer Law (ACL)5 by the first respondent company. 2 Leave to amend is sought in circumstances where the applicant, Goolwa Lifestyle Village Pty Ltd, now only proceeds against the third respondent, Mr Valentine, following the voluntary liquidation of the first and second respondent companies in February 2024 and the statutory stay of proceedings against them. 3 The application for leave to amend is opposed by Mr Valentine on grounds that the Proposed Claim does not disclose reasonable causes of action in negligence (a new claim) or for accessorial liability under the ACL and does not give fair notice of the applicant’s case. 4 This is the applicant’s third attempt to propound an amended statement of claim against Mr Valentine in face of his application to strike out parts of the plainly deficient statement of claim. Following argument on 17 October 2024, the applicant was given the opportunity to replead the first version of its proposed amended claims against Mr Valentine by reason of significant inadequacies in all pleaded causes of action. 5 The second version of the applicant’s proposed statement of claim was the subject of argument on 20 March 2025. On 24 March 2025, leave to amend was again refused and ex tempore reasons published identifying key inadequacies in the applicant’s second proposed statement of claim.6 The applicant was given a third and final opportunity to replead its proposed amended statement of claim against Mr Valentine. 7 1 FDN 18 filed on 5 July 2024. 2 Exhibit LMA 7 to the Third Affidavit of Lisa Marie Amabili sworn on 23 May 2025 (FDN 43). 3 FDN 30 filed on 15 October 2024. The application is made under UCR 70.3 and does not seek summary judgment, despite the Written Submissions of the Third Respondent (FDN 46) (Third Respondent’s Written Submissions) at [1] and [2] identifying the latter as the question to be addressed. 4 FDN 1 filed on 19 May 2023. 5 Competition and Consumer Act 2010 (Cth) s 131 and Sch 2. 6 FDN 41. 7 Ibid at 5. -- 5 of 45 -- [2026] SADC 73 2 6 In its third Proposed Claim, the applicant again only seeks relief against Mr Valentine, relying on causes of action in tort for breach of common law duties of care and accessorial liability for contraventions of ss 18, 29, 33, 34,8 54 and 55 of the ACL by one of the companies. The applicant seeks damages for loss and damage occasioned by unremedied alleged defects in domestic building works involving the supply and installation of home lifts in villas for which it was the developer and for liability to the subsequent owners of the villas, plus interest and costs.9 7 There is some controversy as to whether the applicant had previously abandoned its claims for the consumer guarantees under ss 54 and 55 of the ACL.10 These claims are addressed because they remain in the Proposed Claim despite what was said in solicitors’ correspondence previously. 8 The applicant no longer presses any claims for breach of statutory duties of care against Mr Valentine as were advanced in the second version of its Proposed Claim.11 Materials Relied On 9 Argument over the Proposed Claim proceeded on 4 July 2025, the parties relying on a third round of written submissions12 and their solicitors’ affidavits.13 Leave was granted for the parties to prepare and file a joint table identifying their opposing positions on whether the issues identified in my ruling on the second version of the Proposed Claim had been addressed properly or at all.14 10 In support of his strike out application, Mr Valentine relies on written submissions filed prior to the first hearing on 17 October 2024.15 Pleading Principles 11 Parts 7, 9 and 10 of Chapter 7 of the Uniform Civil Rules (2020) (UCR) address pleadings, amendments and challenges to them. Part 7 sets out the general rules as to pleadings, UCR 67.2 identifying what is required for a properly formulated pleading. 8 The claim for accessorial liability based on s 34 of the ACL is new. 9 Proposed Claim at Part 1 and [108]-[117]. 10 Schedule of Objections to Proposed Revised Claim (FDN 37) at page 4 re paragraphs [59] and [60] of the second version of the Proposed Claim. 11 Proposed Claim at Part 1 and [108]-[117], marked up version. 17 October 2024, T11.4-.7; 12.33-13.35. 12 Written Submissions of the Applicant (FDN 44) (Applicant’s Written Submissions); Third Respondent’s Written Submissions. 13 [Third] Affidavit of Lisa Marie Amabili sworn on 23 May 2025 (FDN 43); Affidavit of Ziaad El-Tabar sworn on 1 July 2025 (FDN 47); Exhibits to the Affidavit of Ziaad El-Tabar sworn on 1 July 2025 (FDN 48). 14 Joint Table Prepared Pursuant to the Orders of Her Honour Judge Thomas of 4 July 2025 (FDN 51) (Joint Table). 15 FDN 26. -- 6 of 45 -- [2026] SADC 73 3 67.2—Pleading rules (1) A pleading must— (a) comply with the relevant prescribed form; (b) be divided into consecutively numbered paragraphs, each paragraph dealing with a separate matter; and (c) be as concise and precise as practicable. (2) A pleading must— (a) set out the affirmative facts relied on by the party to establish the party’s claim or defence to a claim; (b) identify any statutory provision relied on by the party to establish the party’s claim or defence to a claim or in answer to an allegation of fact by the opposing party; and (c) give fair notice of the party’s case to the opposing party so as to avoid the opposing party being taken by surprise at or in preparation for trial. (3) A pleading must not— (a) make inconsistent allegations of fact unless one is expressed to be in the alternative to the other; (b) contain material that is irrelevant or unnecessary to perform the functions of the pleading identified in subrule (2); (c) contain material that is evasive or ambiguous; d) contain material that is scandalous, frivolous or vexatious; or (e) be an abuse of the process of the Court. (4) A pleading may refer to events occurring after institution of the proceeding. 12 The function of pleadings is expressly identified in UCR 67.1(2). “Facts” are defined in this subrule to mean a proposition of fact or law. 13 The function of pleadings is to state with sufficient clarity the case that must be met.16 Pleadings ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case put against them and, incidentally, define the issues for decision by the Court.17 14 Part 9 relevantly deals with amendment of pleadings. UCR 69.2 provides a party may amend a pleading by consent or with leave of the Court. 16 Gould v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490 at 571 (Isaacs and Rich JJ). 17 Banque Commerciale SA v Akhil Holding Ltd (1990)169 CLR 279 (Banque Commerciale) at 286 (Mason CJ and Gaudron J). -- 7 of 45 -- [2026] SADC 73 4 15 Granting leave to amend is an exercise of judicial discretion, involving broader considerations than whether or not the proposed pleading is tenable in the sense that it articulates an arguable cause of action. These considerations:18 … may include whether there has been undue delay in seeking leave to amend and, if it is allowed, the effect of the amendment on the litigation, including the obligation to make discovery and whether any trial date is likely to be put in jeopardy. The court will also consider the extent of any other prejudice associated with the amendment, depending on whether it is allowed or refused. These broader considerations involve an exercise of discretion by the court. 16 Whilst the discretion to amend is conferred with a duty to make amendments for the purpose of deciding the real issues and avoiding a multiplicity of proceedings, it is not unqualified. Courts are not only concerned with doing justice as between the parties but with the public interest in the proper and efficient use of public resources. 19 It is well-established that case flow management principles inform the Court’s exercise of its discretion to amend and must be considered.20 Whilst various factors have been repeatedly identified as relevant to the exercise of the Court’s discretion on amendments, the weight to be given to these factors, individually and collectively, and the outcome of the balancing process will vary depending on the circumstances of the case.21 17 It nevertheless remains an important consideration that a party should be given a proper opportunity to plead an arguable case and have the Court determine the matters in issue at trial. In this regard, the authorities favour a practical and robust approach to pleadings and their amendment, consistent with the object of the UCR and the overarching obligations of the parties and their lawyers.22 Too strict, legalistic or technical an approach would tend to give pleadings a status and function they did not deserve and undermine the Court’s obligation to do what it can to promote the just, expeditious and economical resolution of claims.23 18 A degree of non-compliance with the rules might be tolerated where a pleading read according to its ordinary meaning gives fair notice of the case to be made at trial. However, leave should not be granted to a proposed amendment that is futile because it is patently bad in law or vulnerable to strike out.24 19 Part 10 deals with particulars and striking out. UCR 70.3 provides: 18 Hallett Concrete Pty Ltd v Adelaide Brighton Cement Ltd [2024] SASCA 80 at [48] (Doyle J). 19 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 189 (French CJ). 20 Channel Seven Adelaide Pty Ltd v Manock [2010] SASCFC 59; PPG Development Pty Ltd v Capitanio (2016) 126 SASR 307 at [38] and [39] (Doyle J). 21 Community Corporation No 21561 Incorporated & Anor v Pier Apartment Hotel Pty Ltd & Ors [2014] SADC 111 (Slattery DCJ). 22 Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd (2020) 137 SASR 117 (Adelaide Brighton) at [46] (Doyle J). 23 Boral Resources v Civil Mining Solutions [2018] SASC 151 at [117] (Doyle J). 24 Commonwealth of Australia v Verwayen (1990) 170 CLR 394 at 456 (Dawson J); Nitschke v Foraco Australia Pty Ltd (2014) 120 SASR 162 at [38] (Stanley J). -- 8 of 45 -- [2026] SADC 73 5 70.3 – Strike out (1) The Court may strike out all or part of a Claim or pleading if— (a) it does not comply with these Rules; (b) it is frivolous, vexatious or an abuse of the process of the Court; or (c) it does not disclose a reasonable cause of action or defence (as applicable). (2) If the Court strikes out all or part of a document under subrule (1), it may if it thinks fit grant leave to file within a specified time an amended or substituted document rectifying the matter that caused the original document to be struck out. 20 UCR 2.1 defines “cause of action” as meaning a set of facts by reason of which (subject to any defence or the exercise of discretion by a court) a person is entitled to relief in a claim. 21 In determining the adequacy of pleadings and proposed amendments, the Court should proceed on the basis that the factual allegations made are to be accepted for the purposes of the application.25 Ordinarily this will not require any consideration of evidence going to the underlying merits of the applicant’s claim, let alone making findings on that evidence.26 22 UCR 70.3(2) contemplates that where a pleading is struck out the Court may give the party an opportunity to replead,27 bearing in mind the importance of not depriving a party of their opportunity for the trial of their case. To strike it out, the Court must be satisfied that the pleading does not disclose a reasonable cause of action.28 The mere fact that the case was weak and not likely to succeed is not a ground for striking out a properly formulated pleading. The Issues for Determination 23 The central question is whether the applicant’s Proposed Claim is tenable in the sense that it articulates an arguable cause of action against Mr Valentine in either negligence or for accessorial liability for contraventions of the ACL by the first respondent company. 24 Case flow management considerations are a lesser consideration here having regard to the stage at which the applications to amend and strike out are made and the likely minimal impact or disruption to the progress of the proceeding to trial. These applications have been made after the applicant has discharged its discovery obligations but the respondents have not despite the third respondent apparently advising he has no discovery to make. The applicant served its liability expert 25 State of South Australia v Peat Marwick Mitchell & Co (1997) 24 ACSR 231 at 238. 26 Adelaide Brighton at [67] (Doyle J) citing Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 941. 27 Adelaide Brighton at [61]-[69] (Doyle J). 28 General Steel Industries Inc v Commissioner for Railways (NSW) (1949) 78 CLR 62 at 91 (Barwick CJ). -- 9 of 45 -- [2026] SADC 73 6 report in April 2024. The third respondent has given notice of his objections to its admissibility. A trial date has not been set. 25 However, case flow management considerations are relevant to the extent that there are limits upon the opportunities that should be given to an applicant to re-plead in the interests of finality and taking into account the delay and costs occasioned by the applicant’s repeated failure to address the same fundamental issues in its proposed pleadings. The Alleged Facts 26 The Proposed Claim is lengthy and repetitious. It is necessary to start by setting out the factual allegations relied on by the applicant as the foundation for the proposed causes of action against Mr Valentine in negligence and for accessorial liability under the ACL. Contract to Supply and Install Lifts with either Company 27 The applicant, Goolwa Lifestyle Village Pty Ltd29, is allegedly the registered proprietor of land on which a residential park under the Residential Parks Act 2007 (SA) is operated under the name ‘Lakeside Goolwa’. It is the developer and party to 12 site development agreements with the resident owners of each of the 12 villas (houses) in the residential park.30 28 The first respondent company New Millenium Enterprises Pty Ltd (in liq) (NME) and the second respondent company Cranetec Enterprises Pty Ltd (in liq) (Cranetec) are each, in the alternative, alleged to be a party to an agreement made with the applicant in about early April 2018 for the supply and installation of 18 home lifts in the villas that were to be constructed in the residential park (the Contract).31 29 There are no pleaded particulars of the alleged Contract. Neither the filed statement of claim or the Proposed Claim identify whether its terms were written, oral or partly written and partly oral. Although no cause of action in contract is alleged against Mr Valentine, these are important contextual facts for the causes of action that are relied upon against him. 30 It is alleged that NME specialised in the manufacture, installation and servicing of lifts and traded as “Homelifts by Cranetec”32 and Cranetec specialised in the installation and servicing of lifts.33 Both companies operated from the same premises at Smithfield in NSW.34 29 In in its capacity as the trustee of the Goolwa Lifestyle Village Trust. 30 Proposed Claim at [1]. 31 Ibid at [12], [13], [24] and [25]. 32 Ibid at [2.4]. 33 Ibid at [3.3]. 34 Ibid at [2.5] and [3.5]. -- 10 of 45 -- [2026] SADC 73 7 31 It is alleged that either NME or Cranetec undertook the supply and installation works pursuant to their Contract,35 and had installed 12 of 18 lifts by December 2019,36 when they ceased trading.37 32 Since Mr Valentine held the same position and authorities in both companies, the same facts and circumstances are relied on by the applicant to propound the proposed causes of action against him, regardless of which of the respondent companies was the contracting party. The “Lifts” and the “Works” 33 The supply and installation of the “Lifts”38 is defined and referred to as the “Works” in the Proposed Claim.39 The use of both terms in the Proposed Claim is confusing but tolerably clear. The use of the generic term “Works” is problematic in context of the ACL claims where it obfuscates the important distinction between goods and services that remains unaddressed in the pleaded allegations. This difficulty is magnified when it is appreciated that the lifts ultimately supplied and installed were apparently modified from the original design the subject of the “First Representation”, although precisely how is not made clear in the pleaded allegations.40 34 Other than earlier references to 18 “Duet” lifts, and the inferences arising from the (following) alleged express terms of the Contract and those implied by statute, there is no pleaded description or detail of the specification of the lifts to be supplied or the scope of installation works under the Contract:41 The express terms of the NME Contract (the Express Terms) were as follows: 13.1 the lifts would be manufactured and installed to comply with the legislative requirements applicable Australia wide and particular [sic] in South Australia; 13.2 NME would bear the onus of ensuring compliance of the Lifts with all South Australia legislative requirements and would provide all certifications required by regulatory authorities within South Australia; 13.1 NME would ensure that there was a qualified lift technical available in South Australia with the skills and access to technical backup and replacements parts for all servicing and maintenance of the Lifts and for emergency call outs as and when required. 35 The applicant relies on the statutory warranties provided in s 32 of the Building Work Contractors Act as being implied into the Contract42 and the 35 Ibid at [38], [44] and [59]-[61]. 36 Ibid at [69]. 37 Ibid at [2.7] and [3.7]. 38 Defined as “18 lifts”. Ibid at [12]. 39 Ibid at [17]. 40 Ibid at [9.3] and [10]. 41 Ibid at [13]. Repeated for Cranetec at [25]. 42 Ibid at [18] and [30]. -- 11 of 45 -- [2026] SADC 73 8 guarantees of acceptable quality and fitness for a disclosed purpose under ss 54 and 55 of the ACL.43 Statutory Framework 36 It is alleged that the Contract made with either of the respondent companies is a domestic building work contract44 and the supply and installation of the lifts is domestic building work45 (or in the alternative is building work),46 all within the meaning of the Building Work Contractors Act.47 37 It is alleged further or in the alternative that the supply and installation of the lifts is building work or construction work under the NSW Design and Building Practitioners Act 2020 (NSW),48 although to reiterate, the applicant no longer presses any cause of action for breach of s 37 of this Act, submitting instead that the breach is a contextual fact that informs Mr Valentine’s common law duty of care. 38 In this regard, it is alleged that NME or CE undertook the pursuant to their Contract, and in doing so were required to hold a contractor’s licence under s 6 of the Building Work Contractors Act and s 4(1)(b) of the Home Building Act 1989 (NSW)49 and to have a registered supervisor under s 26 of the latter Act yet neither company held any such licence when they undertook the “Works” nor had a registered supervisor. 50 39 Inexplicably, there is no pleading of the requirement under s 12 of the Building Work Contractors Act that at all times a licensed building contractor must ensure there is a registered building work supervisor approved by the Commissioner under that Act as a building work supervisor in relation to the contractor’s business. It is unclear whether this omission is tactical or an oversight. Mr Valentine 40 It is alleged and formally admitted that the third respondent, Mr Valentine, was the sole director, secretary and ultimate sole shareholder of NME and the sole 43 Ibid at [21],[22], [33] and [34] for the primary contraventions alleged against the companies. 44 Ibid at [15] and [27]. 45 Ibid at [14], [26], [39.2.1] and [45.2.1]. 46 Ibid at [16], [28], [39.2.2] and [45.2.2]. 47 The expression “building work” is relevantly defined in s 3 of the Building Work Contractors Act as “the whole or part of the work of constructing, erecting, underpinning, altering, repairing, improving, adding to or demolishing a building”. The expression “domestic building work” concerns a building that is a “house”, meaning “a building intended for occupation as a place of residence”. 48 Referred to below as the NSW DBP Act. See s 36. Proposed Claim at [16A], [28A], [39.2.3] and [45.2.3]. 49 Referred to below as the NSW Home Building Act. 50 Ibid at [17B], [29B], [35], [39.2.4], [39.2.5], [41], [45.2.4] and [45.2.5]. -- 12 of 45 -- [2026] SADC 73 9 director, secretary and a shareholder of Cranetec at all material times.51 Mr Valentine ceased to be a director of Cranetec on about 1 May 2021.52 41 Those material times are identified as being during pre-contract dealings from November 2014 to early April 2018,53 early April 2018 when the Contract was made54 for the supply and installation of the lifts by December 201955 and from January 2021 to January 2022 when complaints were made about defects in the lifts and communications exchanged between the applicant and Mr Valentine.56 42 It is alleged that Mr Valentine is and has been a qualified electrician57 and the holder of a Contractor Licence Numbered 123066C effective from 12 March 2001 to 12 March 2026, Class-Electrician under the NSW Home Building Act.58 The Representations 43 It is alleged that the applicant communicated the following “Disclosed Purpose” to the email address [email protected] in about September 2017 by seeking:59 7.1 the price for the supply and installation 18 residential Duet Lifts in Villas to be constructed in the Residential Park; 7.2 to know whether Homelifts by Cranetec had previously supplied and installed lifts in South Australia; 7.3 to know whether the lifts were compliant with South Australian legislative requirements and relevant Australia standards; 7.4 all in respect of transporting people and goods between floors in villas constructed on the Property. 44 It is alleged that Ms Liarne Peek of “Homelifts by Cranetec” communicated the “Disclosed Purpose” to Mr Valentine and ultimately, following alleged communications between Ms Peek and Mr Valentine, the applicant entered into the Contracts with one of the respondent companies relying on a series of representations that Mr Valentine authorised Ms Peek to convey to the applicant.60 45 The representations allegedly made by Ms Peek to (an unidentified person on behalf of) the applicant are defined collectively as the “Representations” and 51 Statement of Claim (FDN 1) at [2.1], [3.2]; Proposed Claim [3A.3] and [3A.4]; Defence (FDN 4) [2(a)] and [3(a)]. 52 Proposed Claim at [3.2]. 53 Ibid at [3A.3.1], [3A.4.1], [6]-[11A] and [24A]. 54 Ibid at [3A.3.2], [3A.4.2], [12] and [24]. 55 Ibid at [3A.3.3], [3A.4.3], [39] and [42]. 56 Ibid at [77]. 57 Ibid at [3A.2]. 58 Ibid at [3A.1], [37] and [43]. 59 Ibid at [7]. 60 Ibid at [7A], [12], [24] and [24A]. -- 13 of 45 -- [2026] SADC 73 10 separately by reference to three occasions, despite the “Representations” comprising 12 separate statements. 46 The “First Representation” was allegedly conveyed to the applicant on or about 26 September 2017 by Ms Peek with Mr Valentine’s authority:61 8.1 after discussion with his [sic] boss, the price per each Duet Lift supplied and installed in South Australia is $32,900 per lift; and 8.2 the production time on the manufacture of the lifts is 3 weeks with a further 2 weeks for installation; 8.3 the lifts are manufactured to Australian Standards in Australia and the certification for them is relevant nationwide; 47 The “Second Representation” is pleaded in the following terms:62 9. As a result of the communication referred to in the preceding paragraph 8F herein, Valentine authorised Liarne Peek of Homelifts by Cranetec ([email protected]) to advise the Applicant (materially) that “Homelifts by Cranetec”: 9.1 will take responsibility for certification of each lift installed through all of the appropriate agencies as deemed necessary by Government and industry statutes; 9.2 will supply and install 18 Duet Lifts; 9.3 will provide a clear Perspex lift door rather than the standard opaque finish with rubber grips; and 9.4 will ensure that there is a qualified lifts technician available for all servicing needs in the Adelaide area and for the future servicing needs of the lifts. 48 The “Third Representation” is pleaded in the following terms:63 10. As a result of the communication referred to in the preceding paragraph 9A herein, Valentine authorised Liarne Peek of Homelifts by Cranetec ([email protected]) to advise the Applicant (materially) that: 10.1 SafeWork SA will accept NME’s design registration in New South Wales but the registration of the lift with the current design is problematic; 10.2 Liarne Peek had discussions with SafeWork SA, its lift engineer and the owner (being, relevantly Valentine) and the solution proposed is: 10.2.1 the lift is enclosed in a lift shaft with outward swing doors that have an electric strike tied into the lift program; 61 Ibid at [8]. 62 Ibid at [9]. 63 Ibid at [10]. -- 14 of 45 -- [2026] SADC 73 11 10.2.2 the lift car door is to be removed (as is the case with the Atrium) as the lift is now fully enclosed; 10.2.3 the shape and size of the lift car will remain the same as the Duet Lift however all programming and electronic for the operation of the lifts will be to the Atrium Lift’s specifications; 10.2.4 it can train one or two of the Applicant’s staff to be competent in the maintenance and servicing of the lifts. 49 It is alleged that Ms Peek’s boss was Mr Valentine,64 and Mr Valentine and Ms Peek used the same domain for their emails: “@cranetec”.65 50 The “Representations” in paragraphs 8, 9 and 10 of the Proposed Claim do not comply with the rules as to pleadings. 51 First, the form of the “First Representation” (that is how it was conveyed) and to whom it was conveyed on behalf of the applicant is not identified. For the “Second” and “Third Representations”, there is no longer any pleaded allegation that they were in fact conveyed to the applicant. (The version in mark-up shows these allegations have been deleted, perhaps in error). Nor is the form in which these “Representations” were conveyed or when and to whom they were conveyed on behalf of the applicant identified. 52 It is necessary for these material facts to be pleaded, together with adequate particulars, so as to identify the legal grounds relied on for the relief claimed against Mr Valentine to give him fair notice of the case he has to meet at trial. 53 Secondly, the 12 statements made on three occasions are collectively defined as the “Representations” and relied on as part of the broader circumstances informing Mr Valentine’s alleged duty of care. Their collective definition is problematic for several reasons. These statements are relied on as the collective foundation of all the applicant’s ACL claims, despite certain matters (such as price66 and what was to be supplied67 and when68) having no apparent bearing on alleged defects in the lifts supplied and installed or the different ACL claims involving different elements. 54 The material facts constituting each communication should be pleaded separately from the specific representations allegedly arising from what was allegedly said or done. As far as they are relied on as representations made in contravention of different provisions of the ACL, Mr Valentine and the Court should not be left to speculate about what the applicant claims each communication 64 Ibid at [8A]. 65 Ibid at [3A.6], [8], [9] and [10]. 66 Ibid at [8.1]. 67 Ibid at [8.1], [9.2], [9.3], [10.2.1]-[10.2.3]. 68 Ibid at [8.2]. -- 15 of 45 -- [2026] SADC 73 12 allegedly conveyed as to the nature and quality of the goods and services to be supplied and installed. Mr Valentine’s Knowledge and Authorisation 55 It is alleged that Mr Valentine knew the applicant’s “Disclosed Purpose”69 because he discussed it with Ms Peek and authorised her to convey to the applicant the “Representations” in their discussions about price, production time, the scope of works and the manufacture and certification of the lifts to Australian Standards.70 56 It is also alleged that Mr Valentine knew71 or in the alternative, ought to have known,72 that in order to carry out the “Works” the respondent companies were required to hold contractor’s licences under the Building Work Contractors Act and the NSW Home Building Act and have a registered supervisor as a building work supervisor under the latter Act73 but they did not. 57 Further, Mr Valentine authorised and permitted the companies to undertake the “Works”.74 Mr Valentine knew of communications about defects in the “Works” because he was party to them.75 58 However, there are no pleaded circumstances known by Mr Valentine to establish the requisite intention for accessorial liability for NME’s alleged contraventions of the ACL. As discussed further below, without these essential elements the applicant’s cause of action for accessorial liability against Mr Valentine is untenable and vulnerable to strike out.76 Defective and Late Works 59 The pleaded allegations as to the defective, incomplete and late nature of the “Works” are found in paragraphs 62 to 88. They are lengthy, generalised and it is difficult to discern the factual connection at a granular level between any alleged defect and Mr Valentine’s alleged failure to supervise or Mr Valentine’s alleged involvement in NME’s contraventions of the ACL. 60 It is necessary to set out the substance of the allegations pleaded. 61 The applicant alleges the “Works” were defective and incomplete, required extensive rectification works and ultimately were required to be replaced. In support of these general allegations, the applicant refers to and relies on a series 69 Ibid at [7]. 70 Ibid at [7A]-[7B], [8B]-[8F], [9A] and [11]-[11A]. Repeated in [90.1.5.2], [90.1.5.3], [91.3.2] and [97.3.2]. 71 Ibid at [17B] (misnumbered as [17A]) and [29C]. 72 Ibid at [40] and [46]. 73 Ibid at [49]. 74 Ibid at [39] and [44]. 75 Ibid at [77], [78] and [79]. 76 See [136]-[150] below. -- 16 of 45 -- [2026] SADC 73 13 of improvement and prohibition notices issued by SafeWork SA in January 201977 and April 2021,78 a safety inspection report dated 29 March 2021 prepared by JCA Lift Consultants for the lift in Villa 11 (the JCA Report)79 and alleged malfunctions at the 12-month service in October 2020.80 The applicant also impermissibly refers to and relies on an expert report without any substantive plea as to its relevance.81 62 The defects in the Villa 11 lift identified in the JCA Report (defined in the Proposed Claim as the “Villa 11 Defective Works”)82 are alleged to also be defects in the other 11 lifts. Collectively they are defined as the “Defective Works” as set out in the Scott Schedule comprising Annexure A to the Proposed Claim.83 Whether all lifts suffered the same defects as the lift in Villa 11 would be a question for trial. 63 It is alleged that the “Works” were carried out by one or other of the respondent companies in breach of contract, the statutory warranties and ss 54 and 55 of the ACL.84 Yet only the first respondent company is alleged to have made the “Representations” that contravene the ACL.85 This inconsistency is embarrassing. 64 It is alleged that the “Works” were incomplete and done incompetently because Mr Valentine was negligent in his supervision of the “Works”,86 or in the alternative ought to have supervised the “Works” but failed to do so.87 65 It is further alleged that Mr Valentine’s breach of his ongoing duties of care caused and occasioned NME’s contraventions and the defects.88 There is no factual foundation for these pleas. These pleas create uncertainty about the applicant’s case on causation. Are the defects the result of a failure to supervise or false or misleading representations about the quality of the lifts or both? They are untenable pleas in circumstances where the “Representations” relied on as the foundation of the ACL claims do not concern responsibility for supervision and there is no other apparent connection pleaded. 77 Proposed Claim at [67]. 78 Ibid at [73] and [74]. 79 Ibid at [72]. 80 Ibid at [70]. 81 Ibid at [76.2]. 82 Ibid at [72]. 83 Ibid at [76]. 84 Ibid at [62], [63] and [65]. 85 Ibid at [89]. 86 Ibid at [64.1]. 87 Ibid at [64.2]. 88 Ibid at [100] and [103]. -- 17 of 45 -- [2026] SADC 73 14 66 It is further alleged that the “Defective Works” as set out in Annexure A to the Proposed Claim demonstrate that the “Representations” were misleading or deceptive.89 67 It is alleged the applicant provided Mr Valentine with a copy of the JCA Report and the 2021 SafeWork notice and numerous opportunities to rectify the “Defective Works” and corresponded with him between January 2021 and January 2022 about the lifts. It is further alleged that the companies failed to rectify the “Defective Works”, address matters in 2021 SafeWork SA notices or meaningfully respond to the applicant’s communications about the “Defective Works” and Mr Valentine “failed to supervise that rectification, addressing and response”.90 68 To reiterate, the Scott Schedule comprised in Annexure A to the Proposed Claim is the foundation of all the causes of action pleaded against Mr Valentine. When attention is given to its contents, it is plain that it does not adequately identify the defects complained of and is not a proper foundation for a plea that the “Representations” were collectively false or misleading or deceptive or the consumer guarantees were breached. Annexure A does not give fair notice of the case put against Mr Valentine. This is so for the following reasons. 69 Annexure A lists 51 defect items and generally describes the nature of alleged defects for the lift installed in Villa 11 as per the JCA Report as at 29 March 2021,91 (although it is relied on for the alleged defects in all 12 lifts). General non- compliance with AS 1735 is indicated by orange shading of a column in Annexure A whereas “high risk within the meaning of the WHSR” is indicated by green shading. How and why any defect item does not comply with a specific requirement of AS 1735 or is otherwise non-compliant with the unpleaded contractual specification for supply and installation of the lifts is not identified. What the allegation “high risk within the meaning of the WHSR” means should be expressly stated, and any statutory provision relied on identified. 70 It is no answer to point to the references to some provisions of AS 1735 in paragraph 67 of the Proposed Claim that concerns SafeWork SA notices issued in January 2019. The specific provisions of the referenced design and lift codes and AS 1735 and the basis of the alleged “high risk within the meaning of the WHSR” should be expressly stated in Annexure A in accordance with UCR 67.2(2) so that Mr Valentine knows the case he is required to meet. 71 Further, when closer regard is had to the descriptions of many items, there are notable, repeated general references to the “design code” and the “lift code” indicating a design rather than installation issue, in circumstances where the (barely) pleaded contractual obligation was to supply and install lifts of an unidentified specification and no pleaded specification. The last item complains “the lift is not being regularly maintained in a safe operational condition by 89 Ibid at [90.4], [91.4] and [92.4]. 90 Ibid at [80]. 91 Ibid at [72]. -- 18 of 45 -- [2026] SADC 73 15 competent persons”, yet maintenance is not alleged to be a contractual obligation of the respondent companies under the Contract. The only apparent relevance is that the availability of trained maintenance personnel is the subject of some of the statements relied on as “Representations”. 72 As for Mr Valentine’s alleged liability in negligence, the logical connection between an alleged failure to supervise competently or at all and all the alleged defects (whether a design, supply, installation or maintenance issue) is not identified or self-evident. As for Mr Valentine’s alleged involvement in NME’s contraventions of the ACL, how all the alleged defects in the lifts identified some years after the “Representations” were made would render any of the “Representations” false or misleading or likely to mislead at the time they were made or would constitute breaches of the consumer warranty and guarantee is also not identified or self-evident. Negligence Principles 73 The general rule is that at common law damages are not recoverable in negligence for loss that is not consequential upon damage to person or property (that is, pure economic loss), even if the loss is foreseeable.92 74 To establish a duty of care to avoid pure economic loss, an applicant must either identify an assumption of responsibility by the respondent or the imposition of a duty of care by law. To reiterate, in its third Proposed Claim, the applicant eschews the imposition of any statutory duty of care. 75 Under Australian case law, in determining the existence of a duty of care to avoid pure economic loss, it is necessary to apply a ‘salient features’ analysis of the relationship between the parties.93 Having regard to the significant judicial and academic criticism of this approach, it has been observed that any application of this analysis “should be as narrow as possible”.94 76 In the context of a claim for pure economic loss, recognition of a duty of care in novel cases should not involve “any form of ‘instinctive synthesis’ of competing considerations ‘without a chain of reasoning linking those factors with the ultimate conclusion’”.95 Rather, an “incremental and analogical approach, paying close attention to relevant precedents and any risk of incoherence in the principles they establish, is necessary”.96 92 Woolcock Street Investments (2004) 216 CLR 515 (Woolcock) at [22] (Gleeson CJ, Gummow, Hayne and Heydon JJ). Citations omitted. 93 Mallonland Pty Ltd v Advanta Seeds Pty Ltd (2024) 98 ALJR 956 (Mallonland) at [36] (Gageler CJ, Gordon, Steward, Gleeson, Jagot & Beech-Jones JJ) and at [104] (Edelman J). 94 Mallonland at [104]. 95 Ibid at [37]. Citations omitted. 96 Ibid. -- 19 of 45 -- [2026] SADC 73 16 77 The following considerations have been identified by the High Court as relevant in the context of claims for pure economic loss. 78 Reasonable foreseeability of loss is not of itself a sufficient basis to impose a duty of care but it is a necessary condition and it follows that its absence negates a duty of care.97 79 Assumption of responsibility coupled with known reliance are important considerations.98 The term assumption of responsibility has been described as the “core” of the alleged duty of care.99 Whilst the term ‘assumption of responsibility’ has been criticised as “imprecise and beguiling but deceptively simple”,100 it was explained by the majority in Mallonland as:101 … best understood as an undertaking (whether express or implied) by a person to take on a task or job for another person or class of persons, from which it can be inferred that the first person accepted that he or she would take reasonable care when engaging in that task or job. 80 As Edelman J further explained in Mallonland:102 It naturally follows from the nature of an assumption of responsibility as an express or implied undertaking made to a person that the obligation is owed only by those who objectively provide the undertaking and owed only to those to whom they provided the undertaking. An undertaking that founds an assumption of responsibility is to a person or group of people. No undertaking will be implied if it is not reasonably expected that it would be made to that person or group in those circumstances. 81 Ascertaining whether a person assumed responsibility in the requisite sense “depends on an assessment of the entirety of the relationship”103 including in this case the circumstances in which the applicant acquired the lifts supplied and installed by the respondent companies and specifically “the objective features of the relationship”104 between Mr Valentine and the applicant in the relevant statutory and contractual context. 82 An applicant’s ‘vulnerability’, in the sense of its inability to protect itself from the consequences of a respondent’s want of reasonable care “by reason of ignorance or social, political or economic constraints” is also an important requirement in analysing whether any duty of care exists.105 In Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288,106 the applicant’s lack of vulnerability was determinative of the conclusion that no duty of care existed. 97 Tame v New South Wales (2002) 211 CLR 317 at [103] (McHugh J). 98 Woolcock at [24]. 99 Mallonland at [45]. 100 Hill v Van Erp (1997) 188 CLR 159 at 229. 101 Mallonland [36]. Citations omitted. 102 Ibid at [66]. Citations omitted. 103 Ibid at [46]. 104 Ibid at [48]. 105 Ibid at [39] citing Woolcock at [80]. 106 (2014) 254 CLR 185 (Brookfield). -- 20 of 45 -- [2026] SADC 73 17 A mere likelihood of suffering economic loss if reasonable care is not taken will not amount to vulnerability.107 83 In this regard the existence and terms of any relevant contract may bear upon the existence and content of a duty of care,108 as it did in both Woolcock and Brookfield. 84 The case for imposing a duty of care for economic loss is strengthened if the respondent actually or constructively knew of the risk and its magnitude.109 Whilst it is a question of fact in any case, an inference that a respondent involved in commercial construction would be aware of the risk arising from defects in the works and their potential magnitude might be readily drawn.110 As a virtual pre- requisite for a duty of care in cases of pure economic loss, the importance of knowledge has been explained as reflecting:111 the simple propositions that “[n]egligence at common law is still a fault based system… [and it] would offend current community standards to impose liability on a defendant for acts or omissions which he or she could not apprehend would damage the interests of another.” 85 The relevant statutory and common law context, including the allocation of responsibilities and the provision of remedies, is relevant to the determination of whether a duty of care should be imposed in a particular case.112 The coherence of a novel duty of care with other aspects of the law may point to its rejection where the expansion of the law of negligence would obliterate or undercut other legal principles which may serve other important values.113 86 The spectre of indeterminate liability would generally deny the existence of a duty of care.114 87 In the context of the personal liability for a company director, it is basic that the company is a separate legal entity distinct from its directors and shareholders or other agents. Generally, the directors are not personally liable for a company’s civil wrongs because they have general control of the company’s business.115 Specifically, the company does not act as the agent of the directors. For a director of a company to be personally liable in tort:116 107 Woolcock at [23] (Gleeson CJ, Gummow, Hayne and Heydon JJ). 108 Astley v Austrust Ltd (1999) 197 CLR 1 at [47] (Gleeson CJ, McHugh, Gummow and Hayne JJ); Williams v Natural Life Health Foods Ltd [1998] 1 WLR 830 (Williams) at 857 (Lord Steyn). 109 Ibid at [38]. 110 Woolcock at [87]. 111 Mallonland at [38]. Citations omitted. 112 Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241 at 282 and 286 (McHugh J). 113 Perera v Genworth Financial Mortgage Insurance Pty Ltd (2017) 94 NSWLR 83 at [42] and [44]-[45] (Leeming JA, Macfarlan JA and Simpson JA agreeing). 114 Mallonland at [56]. 115 Rainham Chemical Works Ltd v Belvedere Fish Guano Company Ltd [1921] 2 AC 465 at 486-487. 116 Williams at 835. -- 21 of 45 -- [2026] SADC 73 18 …it is not sufficient that there should have been a special relationship with the principal. There must have been an assumption of responsibility such as to create a special relationship with the director or employee himself. 88 Whether the director has assumed personal liability in any case involves an objective inquiry into what was said and done by the director or anyone on their behalf to convey (directly or indirectly) to the applicant that the director assumed personal responsibility to the applicant.117 If reliance is not proved, it is not established that an assumption of responsibility has causative effect.118 Moreover, the test is not simply reliance in fact:119 The test is whether the plaintiff could reasonably rely on an assumption of personal responsibility by the individual who performed the services on behalf of the company. The Parties’ Contentions 89 An essential element of the tort of negligence is that the respondent owes the plaintiff a duty to take reasonable care when engaging in an activity to avoid causing the applicant a particular type of damage or loss that is reasonably foreseeable.120 90 A central dispute in this case arises over the application of the relevant principles and whether the applicant had done enough to plead a tenable cause of action in negligence, focussing on the duty of care issue. 91 The applicant accepts that it is necessary for it to plead sufficient material facts to establish a tenable duty of care if it is to rely on a cause of action against Mr Valentine in negligence to recover damages for pure economic loss. 92 The applicant submits it is not seeking to create new law and brings its claim on established principles, particularly the principle of assumption of responsibility, derived from the legislative requirements for building contractors to be licensed and for there to be a qualified licensed supervisor because:121 The Third Respondent did not supervise, or arrange for supervision, and he was the one who had to do it. 93 The applicant contends that it has properly identified the basis upon which it alleges Mr Valentine owed the applicant a common law duty of care “to supervise the Works or arrange for the appointment of a licensed supervisor” which he breached by not having either supervised or arranged for the appointment of a licensed supervisor.122 Furthermore, it contends it has pleaded the necessary material facts to support its claims that Mr Valentine must be the person 117 Ibid. 118 Ibid at 836. 119 Ibid at 837. 120 Sullivan v Moody (2001) 207 CLR 562 at [42] (Gleeson CJ, Gaudron, McHugh and Callinan JJ); Brookfield at [19] (French CJ) and [69] (Gageler J); Mallonland at [29]. 121 Applicant’s Written Submissions at [66]. 122 Applicant’s Written Submissions at [42]. -- 22 of 45 -- [2026] SADC 73 19 responsible for supervision of the “Works” given the legislative requirements for domestic building works, which it says inform the common law duty of care owed to it by Mr Valentine.123 94 The applicant contends it has reformulated its claim to respond to Mr Valentine’s assertions about insufficient particulars as to his knowledge and conduct and thereby discharged its obligations under the rules and pleaded all necessary matters in its third Proposed Claim to plead a tenable duty of care and give fair notice of its case. Having done that, the applicant submits what is left are controversies that can only be determined at trial. 95 The applicant contends as “a secondary” and plainly “contentious” claim that Mr Valentine may also be liable because he was the sole director of the respondent companies.124 96 In opposing the application to amend, Mr Valentine challenges the applicant’s proposed negligence pleading as patently deficient, falling far short of what is necessary to sustain a proper assumption of responsibility plea in circumstances where there is no discernible plea of a duty of care imposed by law. 97 Mr Valentine submits the applicant has not applied the “incremental and analogical approach” mandated by the High Court.125 He criticises the applicant’s negligence pleading as misconceived and devoid of any meaningful content, resolving essentially to a conclusionary allegation that Mr Valentine in the circumstances of this case should have supervised the “Works”. Mr Valentine submits that is “in truth, simply an appeal to a simplistic intuitive response” and a case not articulated by reference to orthodox legal principles.126 98 As for the applicant’s secondary claim, Mr Valentine challenges it as unpleaded, “presumably because there is no proper basis for an allegation of reckless indifference”,127 contrary to authority and “an (after) thought- bubble that does not go anywhere”.128 Conclusion 99 For the reasons that follow, Mr Valentine’s contentions should be preferred. On a principled approach, the matters relied on by the applicant are clearly inadequate to sustain an alleged duty of Mr Valentine to take reasonable care in supervising the supply and installation of the lifts to avoid causing economic loss to the applicant. The reformulated pleas concerning Mr Valentine’s alleged knowledge and conduct do not sustain any assumption of personal responsibility to supervise or appoint a licenced supervisor. There is no plea of reasonable 123 Ibid at [43]. 124 Ibid at [29]-[34]. 125 Mallonland at [37]. Citations omitted. 126 Third Respondent’s Written Submission at [20]. 127 Ibid at [37]. 128 Ibid at [39]. -- 23 of 45 -- [2026] SADC 73 20 reliance by the applicant on any of the circumstances relied on as sustaining Mr Valentine’s alleged assumption of responsibility or at all. It follows that the applicant’s proposed cause of action in negligence against Mr Valentine must fail in the absence of any tenable basis for the existence of a duty of care. Analysis The Pleaded Duty of Care 100 The applicant propounds the existence of a duty of care allegedly owed by Mr Valentine to avoid causing it to suffer pure economic loss resulting from defects in the lifts supplied and installed under the Contract made with one or other of the companies. Mr Valentine’s alleged duty of care is formulated as a duty to take reasonable care in supervising the supply and installation of the lifts (defined as the “Works”) in the following terms.129 48. The contractor (NME or in the alternative, CE) not having a Contractor’s Licence or a Builder’s Licence, the Works could only proceed lawfully if the contractor appointed a supervisor for the Works. 49. Valentine knew that the Works could only proceed if a supervisor was appointed for the Works. PARTICULARS OF VALENTINE’S KNOWLEDGE 49.1 The Applicant relies on Valentine’s directorship and on the participation and authorisation previously pleaded herein. 49.2 It can be reasonably assumed that Valentine had that knowledge. 50. In the circumstances that a supervisor was required for the Works to be lawfully carried out, Valentine was responsible to either supervise the Works or have the contractor appoint another supervisor for the Works. PARTICULARS OF RESPONSIBILITY 50.1 The Applicant repeats its previous pleading about Valentine’s knowledge and participation in the NME Contract (or in the alternative, the CE Contract) for the Works (Valentine’s Involvement). 50.2 It is reasonable to infer from Valentine’s Involvement and being the sole director that Valentine was the only person within the contractor’s organisation who had the authority to have him supervise the Works or to appoint another supervisor. 51. Another person was not appointed to supervise the Works. 52. Valentine being the only licenced person employed by or within the contractor during the course of the Works, Valentine assumed responsibility for supervising the carrying out of the Works (Valentine’s Obligation).130 129 Ibid at [48]-[54]. 130 Emphasis supplied. -- 24 of 45 -- [2026] SADC 73 21 THE SCOPE OF THE REQUIRED SUPERVISION 52.1 By virtue of the facts and matters pleaded in paragraphs 7 - 11 (inclusive) herein, Valentine was aware of the scope of the Works and the supply and installation requirements of the NME Contract (or in the alternative, the CE Contract). 53. Arising out of the matters pleaded in preceding paragraphs 35, 36, 37, 39, 45, 49, 50, 51 and 52 Valentine owed the Applicant a common law duty to exercise reasonable care to avoid economic loss caused by defects in or a related to a building for which the Works were done and arising from the Works by competently supervising the Works (Valentine’s Duty of Care). PARTICULARS 53.1 The duty to prevent harm arose by virtue of the relationship of proximity between the Applicant and Valentine in turn occasioned by Valentine’s Obligation. 53.2 Valentine’s Duty of Care constitutes a reasonable burden on the commercial autonomy of Valentine in the circumstances of; 53.2.1 Valentine authorising the making of the Representations to the Applicant as referred to in paragraphs 8, 9 and 10 herein; 53.2.2 Valentine permitting the contractor to contract with the Applicant and to undertake the Works in the circumstances where: 53.2.2.1 the Works were domestic building work under the BWCA; 53.2.2.2 in the alternative to paragraph 53.2.2.1, the Works were building work under the BWCA; 53.2.2.3 in the further alternative to paragraphs 53.2.2.1 and 53.2.2.2, the Works were building work or construction work under the DBP Act; 53.2.2.4 Neither NME nor CE held a Contractor’s Licence under the HBA for the Works; 53.2.2.5 Neither NME nor CE held a Builder’s Licence under the BWCA for the Works; 53.2.2.6 Valentine held a Contractor’s Licence under the HBA; 53.2.2.7 Valentine was the only person within the contractor who could supervise the Works. 54. Arising out of the matters pleaded in preceding paragraphs 47 through 53 inclusive) Valentine was obliged to ensure as supervisor that: 54.1 the Works were carried out with due care and skill and in accordance with the Applicant’s Disclosed Purpose; 54.2 the Lifts would be of an acceptable standard, quality, grade and reasonably fit for the Applicant’s Disclosed Purpose. -- 25 of 45 -- [2026] SADC 73 22 54.3 that the contractor would have facilities available for the service and repair of the lifts within South Australia. 55. Valentine (being responsible for supervising the Works) was liable for the consequences of not supervising them competently or at all, being the Defective Works referred to in this pleading, namely the defective work. 56. Valentine did not supervise the Works competently or at all. 57. The Works were completed without a supervisor. 58. Valentine knew that the Works were completed without a supervisor. PARTICULARS OF VALENTINE’S KNOWLEDGE 58.1 The Applicant repeats the particulars for preceding paragraph 49. 101 It is axiomatic that for the applicant to properly plead a cause of action in negligence for pure economic loss, it must identify the basis upon which the alleged duty of care is said to arise. This follows because, as already stated, the duty of care is an essential element of the tort of negligence and, as a general rule, a person does not owe a duty to take reasonable care to avoid causing reasonably foreseeable pure economic loss to another.131 “Negligence does not entail liability unless the law exacts a ‘duty’ in the circumstances to observe care.” 132 102 As Mr Valentine submits, it is difficult to discern the essence of the applicant’s negligence plea “[g]iven the diffuse way in which it is expressed”.133 The pleading overall is dense and the factual basis of the alleged duty of care obscured by repetitious cross-referencing and the vague and circular definitions of “Valentine’s Involvement”,134 “Valentine’s Obligation”135 and “Valentine’s Duty of Care”136. Despite the applicant’s written submissions stating that the “supervisor claim” is brought on the principle of assumption of responsibility, it is otherwise unclear whether Mr Valentine’s duty is really advanced on the basis of an objective assumption of responsibility by Mr Valentine or somehow as a duty imposed by law.137 103 That said, it is tolerably clear from Part 1 of the Proposed Claim that the applicant now eschews the imposition of a statutory duty of care on Mr Valentine, whether arising under either the NSW DBP Act, the NSW Home Building Act or the Building Work Contractors Act. In this third version of the Proposed Claim, the applicant has confined its pleaded case to a common law duty of care on the basis of both an alleged assumption of responsibility and other ‘salient features’ of 131 Mallonland at [30], [71] and [89]. 132 C Sappideen, P Vines & others, Fleming’s Law of Torts (Thomson Reuters, 11th ed, 2024) at [8.10] citing Le Lievre v Gould [1893] 1 QB 491 at 497 (Lord Esher MR). 133 Third Respondent’s Third Submissions at [11]. 134 Proposed Claim at [50.1]. 135 Ibid at [52]. 136 Ibid at [53]. 137 Applicant’s Written Submissions at [66]. -- 26 of 45 -- [2026] SADC 73 23 the relationship between the parties, purportedly following the approach applied by the High Court in Mallonland. Assumption of Responsibility and Reasonable Reliance 104 The applicant contends the following matters support the existence of the alleged duty of care: • Mr Valentine was the sole director of the respondent companies at the times he participated in and authorised the alleged pre-contractual communications and the alleged “Representations” were made by Ms Peek: Proposed Claim [2.1],[3.2], [3A.3.1], [3A.4.1], [39.2.9] and [45.2.9]. • Mr Valentine was Ms Peek’s boss and used the same email domain name: Proposed Claim [3A.6] and [8A]. • Mr Valentine was the sole director of the respondent companies during the period in which they undertook the supply and installation works: Proposed Claim [3A.3.3], [3A.4], [36], [40], [42] and [46]. • Mr Valentine held a contractor’s licence under the NSW Home Building Act during the period in which the respondent companies undertook the supply and installation works: Proposed Claim [3A.1], [37], [39.2.6], [43], [45.2.6] and [53.2.2.6]. • Neither of the respondent companies held a contractor’s licence under the NSW Home Building Act or the Building Work Contractors Act: Proposed Claim [35], [39.2.4], [39.2.5], [41], [45.2.4], [45.2.5], [48], [53.2.2.4] and [53.2.2.5]. • Mr Valentine was the only person within the respondent companies that could supervise the supply and installation works: Proposed Claim: [50.2], [52] and [53.2.2.7]. • Mr Valentine’s alleged knowledge that the supply and installation of the lifts was intended to transport people and good between floors in the villas: Proposed Claim [7B.1], [39.2.10], [45.2.10]. • Mr Valentine’s alleged knowledge of the scope of the supply and installation works under the contracts: Proposed Claim [52.1]. • Mr Valentine’s alleged knowledge that the supply and installation works could only proceed lawfully if a supervisor for the supply and installation works were appointed: Proposed Claim [49]. • Mr Valentine’s alleged knowledge that the supply and installation works were completed without a supervisor: Proposed Claim [58]. -- 27 of 45 -- [2026] SADC 73 24 • Mr Valentine permitted one or other of the respondent companies to contract with the applicant in these circumstances: Proposed Claim [39.2], [45.2] and [53.2.]. 105 The foundation for Mr Valentine’s alleged duty of care to supervise the “Works” is his assumed responsibility to supervise or appoint another supervisor because he was the contracting companies only licensed person: Proposed Claim [50], [51] and [52]. Ergo, the contention that Mr Valentine’s duty of care to supervise as pleaded in the Proposed Claim: [53]. 106 For the following reasons, the pleaded allegations are not a principled basis upon which to recognise a tenable duty of care in the circumstances alleged in this case. 107 First, contrary to the applicant’s contentions and its obligations under UCR 67.2(2), the basis for Mr Valentine’s pleaded responsibility to either supervise or appoint a supervisor to the “Works” in paragraph 50 is not identified in circumstances where he is allegedly neither the person contracted to carry out the work nor the appointed supervisor and did not have any statutory duty to supervise the work personally. 108 The answer that it is because in the pleaded circumstances Mr Valentine was the only one that held a contractor’s licence is, as Mr Valentine submits, an “appeal to a simplistic intuitive response.”138 109 Secondly, the plea in paragraph 50 is inconsistent with the earlier plea in paragraph 48 that the contractor could only proceed lawfully if the contractor (not Mr Valentine) appointed a supervisor to the “Works”. How is it then said that Mr Valentine has a personal obligation to appoint a supervisor to the “Works”? 110 The untenability of the foundational plea in paragraph 50 is further exposed when proper regard is had to the statutory framework for domestic building work. 111 The applicant relies on s 6 of the Building Work Contractors Act but not s 12 which imposes the obligation to ensure building work is supervised. Under s 12, the obligation to supervise is imposed on the licensed building work contractor, defined in s 3 as “[the person] performing [the] building work”. To reiterate, in this case, the applicant’s pleaded case is that one or other of the respondent companies are the contractors performing the “Works” under their Contract with it, not Mr Valentine. He is not alleged to be a party to the Contract, to have performed the “Works” nor to have any personal role under the Contract. 112 To the extent the applicant relies on Mr Valentine’s holding of a licence under the NSW Home Building Act (since he is alleged to be the only licensed person), the applicant does not identify the statutory provisions relied on to impose obligations under that Act extra-territorially in South Australia to domestic 138 Third Respondent’s Written Submissions at [20]. -- 28 of 45 -- [2026] SADC 73 25 building works that are alleged to be governed by the Building Work Contractors Act. 113 In its written submissions, the applicant refers to the legislative requirements for contractors to be licensed, mentioning “the NSW legislation for the fabrication and the South Australian act for the installation”.139 Whatever requirement is relied on is not pleaded clearly or at all. 114 Reliance in paragraphs 17A.3, 17B.3 (mistakenly labelled 17A.3), 29B.3 and 29C.3 of the Proposed Claim on s 26 of the NSW Home Building Act is misplaced. This section addresses the endorsement of contractor licences to show the equivalence of a supervisor’s licence. This provision has no apparent relevance to the applicant’s case. 115 Thirdly, (as already mentioned) it is not the applicant’s case that Mr Valentine was the nominated supervisor for the “Works” or actually supervised their carrying out. Instead, it is alleged that the “Works” were completed without a supervisor, Mr Valentine knew that and he did not supervise the “Works” competently “or at all”.140 116 Fourthly, the plea in paragraph 52 of the Proposed Claim of Mr Valentine’s alleged assumption of responsibility is a bare and conclusionary plea save for particulars of the scope of required supervision. Attention to “the facts and matters pleaded in paragraphs 7-11 (inclusive)” reveals no alleged facts capable of giving rise to an alleged assumption of responsibility by Mr Valentine to supervise the “Works” in the sense identified in Australian case law. 117 Critically and most fundamentally, the applicant does not plead any facts alleging that Mr Valentine provided or made any personal undertaking (whether express or implied, directly to indirectly) to the applicant about any matter, let alone to undertake personal responsibility for supervising the supply and installation of the lifts under a contract between the applicant and either of the respondent companies. This is a key point and remains unaddressed from the applicant’s previous versions of its Proposed Claim. 118 Specifically, the allegation that “Valentine’s Obligation” (to supervise) arises from dealings Ms Peek had on behalf of either of the respondent companies is untenable. The matters relied on for Mr Valentine’s authorisation and participation in dealings between the applicant and either of the contracting companies do not concern supervision of the “Works”. At their highest, they concern the compliance of the “Works” with unspecified provisions South Australian legislation and Australian Standards. Nothing is asked of or said by Ms Peek about responsibility for supervision of the “Works”, let alone 139 Applicant’s Written Submissions at [66]. 140 Proposed Claim at [56]-[58]. -- 29 of 45 -- [2026] SADC 73 26 Mr Valentine’s participation or involvement in supervising the “Works” or his personal responsibility for their supervision as the only licensed person. 119 In short, the facts alleged are not reasonably capable of sustaining the pleaded conclusion of Mr Valentine’s assumed personal responsibility to supervise. 120 Finally, there is still no plea of reasonable reliance by the applicant upon Mr Valentine’s alleged assumption of responsibility to supervise the “Works” with reasonable care. This critical defect in the second version of the Proposed Claim was identified by Mr Valentine in his written submissions and in the reasons for my ruling. Nevertheless, this key element remains unaddressed. 121 This is not an omission that can be cured by repleading. There can be no factual foundation for reasonable reliance where there is nothing allegedly said or done by Mr Valentine or by Ms Peek on his behalf in the pleaded dealings with the applicant by which Mr Valentine personally undertook to take reasonable care in supervising the supply and installation of the “Works”. 122 Absent any tenable plea of assumed responsibility and reasonable reliance, the applicant’s Proposed Claim does not disclose a tenable duty of care nor a reasonable cause of action in negligence. Since the pleaded duty of care is untenable, it is futile and does not give rise to any questions that must go to trial. Vulnerability 123 There is also no plea of vulnerability in the sense identified in Australia case law. The Proposed Claim does not identify any alleged inability of the applicant to protect itself from economic loss as a consequence of careless supervision of the “Works”, either entirely or in a way that would cast the consequence of loss on Mr Valentine. This is important in the pleaded circumstances where self- evidently the applicant had the capacity to protect itself by contractual agreement or choosing to purchase elsewhere. 124 The absence of any plea of vulnerability is in the circumstances of this case does not support the existence of any duty of care. This is another critical defect in the Proposed Claim that was identified by Mr Valentine in his written submissions and in the reasons for my ruling in refusing leave to amend in the form of the previous version. It remains unaddressed. Coherence 125 Mr Valentine submits the imposition of a duty of care in this case would lead to legal incoherence where the applicant’s case essentially resolves to an allegation that Mr Valentine failed to ensure the respondent companies discharged their contractual and statutory obligations. He submits it would run counter to the principles in Williams and the rule in Said v Butt141 in which a director was found not to be personally liable for more culpable conduct (positively inducing a breach 141 [1920] 3 KB 497 (McCardie J). -- 30 of 45 -- [2026] SADC 73 27 of contract). He further submits it is contrary to the conclusion reached in Tsaprazis v Goldcrest Properties Pty Ltd:142 In my opinion, if all that is alleged is that the director knows of a contract by the company, knows of circumstances such that the other party would be severely damaged by breach of that contract, and has the power to ensure that the company does not breach its contract, then this is plainly insufficient to give rise to a duty to exercise reasonable care to ensure that the company fulfils its contract. 126 There is obvious merit in Mr Valentine’s submissions. To impose a duty of care on a director in the circumstances alleged in the Proposed Claim absent any pleaded assumption of responsibility or reasonable reliance would undermine the principle of separate legal identity and run counter to the authorities relied on by Mr Valentine in argument. Ongoing Duty of Care 127 The applicant pleads an ongoing duty of care to supervise the “Works” in accordance with the “Representations” and alleges its breach by Mr Valentine occasioned the “Contraventions” and the “Defects”.143 128 This ongoing duty is founded on Mr Valentine simply “[b]eing responsible to supervise the Works”.144 Absent a properly pleaded foundation for legal responsibility to supervise the “Works” and any pleaded connection between the alleged breach of duty occasioning the “Contraventions” and the “Defects”, the plea is untenable. 129 In the alternative, the applicant alleges that Mr Valentine had a duty of care to inform the applicant during the supply and installation of the lifts that the “Representations” were not true and apposite for the lifts and he breached it, occasioning the “Contraventions” and the “Defects”.145 There is no foundation for this alternative duty in the (untenable) duty of care pleas146 or elsewhere in the Proposed Claim. There is also no pleaded connection between the alleged breach of duty occasioning the “Contraventions” and the “Defects.” This proposed cause of action is also untenable and vulnerable to strike out. Indemnity 130 The applicant alleges an entitlement to be indemnified by one or other of the companies “and Valentine” for its liability to the owners of the villas to make good the “Defective Works” under site development agreements made with each subsequent owner for the construction of the villas and for loss of amenity.147 142 [2000] NSWSC 206 at [16] (Hodgson CJ in Eq). 143 Proposed Claim at [98]-[100]. 144 Ibid at [98]. 145 Ibid at [101]-[103]. 146 Ibid at [47]-[55]. 147 Ibid at [104]-[107] and [114]. -- 31 of 45 -- [2026] SADC 73 28 131 The applicant has not identified the relevant provision of the site development agreements. This shortcoming is likely to be capable of remedy and should be remedied if leave to amend was granted. However, having regard to the applicant’s claim for the costs of repairing and ultimately replacing the lifts, it is not clear how there can be any liability to make good as a question of logic. 132 More fundamental a difficulty is how it is said Mr Valentine has any liability to the owners as successors in title under the Building Work Contractors Act or at common law. To reiterate, Mr Valentine is not a contracting party. These pleas are untenable and vulnerable to strike out. Duty as a Director 133 In its written submissions, the applicant suggests Mr Valentine may also have liability because he was the sole director of the respondent companies but it is a “secondary” and “contentious” claim.148 134 There is no merit to this submission for the reasons already ruled on for the second version of the Proposed Claim. 135 The legal basis of this claim in this version of the Proposed Claim is unclear. The referenced authorities refer to a director’s involvement in a company’s tort yet there is no cause of action in tort pleaded against the respondent companies. It is therefore difficult to see the relevance of such a claim and unnecessary to address any further an unpleaded cause of action, despite the parties’ submissions on the topic. Accessorial Liability under the ACL Principles of Accessorial Liability 136 Liability will be imposed on a person “involved” in a contravention of the ACL by another person as follows:149 involved: a person is involved, in a contravention of a provision of this Schedule or in conduct that constitutes such a contravention, if the person: (a) has aided, abetted, counselled or procured the contravention; or (b) has induced, whether by threats or promises or otherwise, the contravention; or (c) has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention; or (d) has conspired with others to effect the contravention. 137 It is necessary for an applicant to plead that the accessory participated in, or assented to, the principal’s contravention with prior knowledge of all the essential 148 Applicant’s Written Submissions at [29]-[34]. 149 ACL s 2. -- 32 of 45 -- [2026] SADC 73 29 elements of the contravention.150 It is insufficient to merely allege involvement in a contravention by simply repeating the definition of involvement in s 2 of the ACL. The respondent is entitled to have the details of the alleged involvement spelt out since it amounts to something akin to fraudulent conduct.151 138 Where involvement in multiple primary contraventions is alleged, an applicant must plead for each contravention the specific conduct by the respondent constituting participation in and actual knowledge of the essential elements at the time of the respondent’s involvement. It is not sufficient for an applicant to plead a series of general allegations and assert reliance on all of them as proving general knowledge or to rely on knowledge obtained after the alleged contravention. 152 139 The essential elements constituting a contravention necessarily depend on what conduct the principal’s contravention consists of in each particular case:153 [T]he single greatest difficulty in the area of accessory liability lies in identifying the essence of the alleged conduct that person must intend to participate in and therefore the associated facts that must be known to form that intent before the person can be an accessory. This intention, and the associated knowledge, is to be identified from the allegations. 140 Personal liability for an individual director does not automatically follow from the company’s contravention of the ACL. A person involved in a contravention will be personally liable even if the company is also liable.154 A person is regarded as being “involved” in a contravention by another party, including the company of which they are a director, if the person has aided, abetted, counselled or procured or induced or has been directly or indirectly knowingly concerned in or party to or conspired with others to effect the contravention.155 141 Each of these concepts of involvement has a well-established meaning in criminal law. 142 The concepts of aiding and abetting and counselling and procuring refer to a person who is in some way linked to the offender and by words or conduct and does something to bring about or renders more likely the contravention. These concepts are distinguished by whether the person was present when the principal committed the offence (aiding and abetting) or whether the person was an accessory before the fact (counselling or procuring).156 150 Rural Press Ltd v ACCC (2003) 216 CLR 53 at [48] (Gummow, Hayne and Heydon JJ). 151 Sutton v AJ Thomson Pty Ltd (1987) 73 ALR 233 at 242 (Forster, Woodward and Wilcox JJ). 152 Lee v Westpac Banking Corporation (No 2) [2016] FCA 911 at [37], [40] and [42] (Dowsett J). 153 Productivity Partners Pty Ltd v ACCC (2024) 281 CLR 338 at [263] (Edelman J) (Productivity Partners) . Emphasis supplied. 154 Houghton v Arms [2006] 225 CLR 553 at [46]. 155 ACL s 2. 156 Giorgianni v The Queen (1985) 156 CLR 473 at 480 (Gibbs CJ) and 493 (Mason J) (Giorgianni); Hamilton v Whitehead (1988) 166 CLR 121 at 128 (Mason CJ, Wilson & Toohey JJ). -- 33 of 45 -- [2026] SADC 73 30 143 Since Mr Valentine is not alleged to have been present when the “Representations” were made, strictly, the plea in paragraph 96 of the Proposed Claim should be confined to him counselling or procuring the alleged contraventions in the manner alleged.157 144 In order to have aided, abetted, counselled or procured a contravention a person must be proven to have intentionally done so. To form the requisite intention, the person must have known the essential facts that gave rise to the contravention. That knowledge extends to all the essential elements of the contravention although it is not necessary to have appreciated that their conduct would be characterised as a contravention.158 Intentional assistance or encouragement of the contravention is required. Inadvertent carelessness is not sufficient.159 145 A person who intentionally participates in or assents to a contravention is a party to the contravention. Their knowledge of the essential matters constituting the contravention must be actual and not constructive. There must be a level of personal involvement. It is not enough to prove that the person was merely the principal on whose behalf things were said or done.160 Furthermore, the knowledge must be contemporaneous, not just acquired after the contravention. 146 In the context of a company director, the director may be liable if they directed or procured the contravention, had a close personal involvement in the contravention or their conduct goes beyond causing the company to take a commercial or business course of action or directing decision-making in good faith and reasonably discharging their duties as a director.161 147 Therefore, to be knowingly concerned in a contravention, two matters must be established. First, actual knowledge of the essential facts constituting the contravention, although it is not necessary to know the legal characterisation of the essential facts.162 Secondly, conduct (whether an act or omission) that properly implicates a person in, or shows a practical connection with, the contravention.163 148 The concept is expressed broadly to apply to a person who has in any way, directly or indirectly, been knowingly concerned in, or party to the contravention. It is sufficient if the person by what they said and did in fact became associated with and therefore involved in the relevant sense in the conduct constituting the contravention. This extends to a director or a person in a position of authority who expressly or implicitly approves of or assents to unlawful conduct. However, it is 157 Giorgianni at 480 (Gibbs CJ) and 493 (Mason J). 158 Yorke v Lucas (1985) 158 CLR 661 at 67 (Mason ACJ, Wilson, Deane and Dawson JJ); Productivity Partners at [12] (Gageler CJ & Jagot J); at [269] (Edelman J). 159 Giorgianni at 506 (Wilson, Deane and Dawson JJ). 160 Keen Mar Corporation v Labrador Park Shopping Centre Pty Ltd (1985) 61 ALR 504 at 508 (Pincus J). 161 Hashtag Burgers Pty Ltd v in-N-Out Burgers Inc [2020] FCAFC 235 at [136] citing JR Consulting & Drafting Pty Ltd v Cummings [2016] FCAFC 20 at [350]. 162 Productivity Partners at [339] (Beech-Jones J). 163 Productivity Partners Pty Ltd v ACCC (2023) 297 FCR 180 at [102] (Wigney and O’Bryan JJ). -- 34 of 45 -- [2026] SADC 73 31 not sufficient for a person to merely occupy a position of authority without the requisite knowledge and participation. 149 In Productivity Partners Pty Ltd v ACCC,164 Edelman J explained that the basis for attribution of liability to the accessory for a contravention is that the accessory must have intended to be involved with the essence of the primary contravention: There are three steps: (i) identification of the essence of the primary offence or contravention; (ii) identification of the acts of the accessory that amount to involvement in the essence of the primary offence or contravention; and (iii) identification of the intention of the accessory to be involved in the essence of the primary offence or contravention. The third matter is often the central issue, as it is in this case. Intent is important because, as Learned Hand J put it, accessory or derivative liability requires that the accessory: show a “purposive attitude” towards the venture; “associate [themself] with the venture”; “participate in it as in something that [they wish] to bring about”; and “seek by [their] action to make it succeed”. 150 Moreover, intention is the reason for requiring knowledge of the essential facts:165 [K]nowledge is not, independently, a criterion for accessory liability. Instead, it is a prerequisite for the required intention. Principles of Primary Liability Misleading and Deceptive Conduct 151 The principles are well established. Section 18 of the ACL does not impose liability. It establishes a norm of conduct that a person must not, in trade or commerce, engage in misleading or deceptive conduct or conduct likely to mislead or deceive. It applies to conduct and (unlike s 29) is not limited to making a statement or representation that is misleading or deceptive or likely to mislead or deceive. 152 Determining whether a person has breached s 18 of the ACL involves four steps: first, identifying with precision the “conduct” said to contravene s 18; secondly, considering whether the identified conduct was conduct “in trade or commerce”; thirdly, considering what meaning that conduct conveyed; and fourthly, determining whether that conduct in light of that meaning was “misleading or deceptive or… likely to mislead or deceive”.166 153 Each step involves “quintessential question[s] of fact”.167 164 Productivity Partners at [258] (Edelman J). Citations omitted. 165 Ibid at [259] (Edelman J). 166 Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd (2023) 277 CLR 186 at [80] (Kiefel CJ, Gageler, Gordon, Edelman and Gleeson JJ) (Self Care v Allegran). 167 Australian Competition and Consumer Commission v Telstra Corporation Ltd (2004) 208 ALR 459 at 475 [49] (Gyles J). See also Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592 at 625 [109] (McHugh J). -- 35 of 45 -- [2026] SADC 73 32 154 Given its comprehensive and wide application, when s 18 is used to found a cause of action, the factual basis on which the section is alleged to apply must be pleaded with clarity.168 155 In Self Care IP Holdings Pty Ltd v Allergan Pty Ltd,169 the High Court explained why: The third and fourth steps require the court to characterise, as an objective matter, the conduct viewed as a whole and its notional effects, judged by reference to its context, on the state of mind of the relevant person or class of persons. That context includes the immediate context – relevantly, all the words in the document or other communication and the manner in which those words are conveyed, not just a word or phrase in isolation – and the broader context of the relevant surrounding facts and circumstances. It has been said that “[m]uch more often than not, the simpler the description of the conduct that is said to be misleading or deceptive or likely to be so, the easier it will be to focus upon whether that conduct has the requisite character”. That said, the description of the conduct alleged and identified at the first step should be sufficiently comprehensive to expose the complaint, because it is that conduct that will ultimately, as a whole, be determined to be or not to be misleading or deceptive. 156 For liability to be established for a contravention of s 18, the impugned conduct must lead or be capable of leading a person into error.170 Mere confusion or wonderment or error resulting from other circumstances but not the impugned conduct is insufficient to establish misleading or deceptive conduct. 157 Conduct is likely to mislead or deceive if there is a real or not remote chance or possibility that it will have that effect. The test is objective and fact-based, having regard to all the circumstances in which the conduct occurred. 158 If a person makes a representation with respect to any future matter and the person does not have reasonable grounds for making the representation, the representation is taken to be misleading.171 False and Misleading Representations about Goods and Services 159 Although s 29 of the ACL takes a different form from s 18 by prohibiting false or misleading representations about goods and services, its prohibition is similar in nature. Section 29(1)(a) prohibits false and misleading representations that goods are of a particular, standard, quality, value, grade, composition, style or model or have a particular history or particular previous use, whereas s 29(1)(b) concerns representations about a particular standard, quality, value or grade of services. Section 29(1)(j) prohibits representations concerning the availability of facilities for the repair of goods or of spare parts for goods. 168 Banque Commerciale at 286 at 286 (Mason CJ and Gaudron J). 169 Op cit, at [82] (Kiefel CJ, Gageler, Gordon, Edelman and Gleeson JJ). Citations omitted. Emphasis supplied. 170 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 at [39] (French CJ, Crennan, Bell and Keane JJ). 171 ACL s 4(1). -- 36 of 45 -- [2026] SADC 73 33 160 Where multiple representations are alleged, it is necessary to plead the sub- section of s 29 relied on and the factual basis on which it is engaged for each representation. Conduct Misleading the Public 161 Section 33 of the ACL prohibits conduct that is liable to mislead the public as to the nature, the manufacturing process, the characteristics, the suitability for their purpose or the quality of any goods, whereas s 34 whilst similar in nature, concerns services. Where multiple representations are alleged, it is necessary to plead how these provisions are said to be engaged for each representation relied on. 162 By contrast to ss 18 and 29 of the ACL, conduct will not infringe ss 33 or 34 unless it is liable to mislead the public. That is, to contravene ss 33 and 34, the conduct complained of must have a public element to it.172 This essential element of the contravening conduct should be pleaded assuming it is not self-evident. Consumer Guarantees 163 Sections 54 and 55 of the ACL provide statutory guarantees to consumers that goods are, respectively, of acceptable quality and reasonably fit for a disclosed purpose. Whether goods are of acceptable quality and reasonably fit for a disclosed purpose are objective questions of fact determined from the perspective of a reasonable consumer with full knowledge of the relevant circumstances. 164 These sections only apply to consumers as defined in s 3 of the ACL. As is relevant to this case, that is where the amount payable for the goods is $100,000 or less, or the goods are of a kind ordinarily acquired for personal, domestic or household use of consumption and not purchased for resupply or using them up or transforming them in the course of the process of production or manufacture. This essential element of the contravening conduct should be pleaded. The Parties’ Contentions 165 The applicant submits it has addressed Mr Valentine’s asserted insufficiencies with the particulars of Mr Valentine’s knowledge and conduct by its reformulated ACL claims. In the Proposed Claim the applicant now pleads that at the time the alleged representations were made, Mr Valentine was the sole director and secretary of the companies, was aware of the applicant’s “Disclosed Purpose” and the scope of the works under the supply and installation and authorised Ms Peek to communicate certain matters.173 Particulars of each alleged contravention of the ACL by NME are now pleaded.174 172 Westpac Banking Corp v Northern Metals Pty Ltd (1989) 14 IPR 499 at 508 (Northrop, Davies and Spender JJ). 173 Proposed Claim at [90.1.5], [91.3] and [97.3], cross-refenced to [7]-[11] inclusive. 174 Ibid at [90.1]-[90.4] for s 18; [91.1]-[91.4] for s 29; [92.1]-[92.4] for ss 33 and 24; [93.1]-[93.5] for s 54; and [94.1]-[94.5] for s 55. -- 37 of 45 -- [2026] SADC 73 34 166 Mr Valentine submits the accessorial liability pleas remain deficient, largely for the reasons previously advanced by it and as identified in my ruling and reasons for the second version of the Proposed Claim. First, there is no proper pleading of the circumstances relied upon in support of the allegation that any particular representation is false or misleading (whether a present or future fact). Secondly, there is no pleading of Mr Valentine’s knowledge of any circumstances that rendered any particular representation false or misleading. Thirdly, there is no pleading of Mr Valentine’s subjective awareness that any particular representation would likely lead the applicant into error. Conclusion 167 There are numerous serious inadequacies in the applicant’s reformulated pleading of Mr Valentine’s accessorial liability for contraventions of the ACL. Some are likely to be capable of remedy (such as the form of the “Representations”). Other are more fundamental and not capable of remedy on the basis of the currently pleaded factual allegations. As a consequence, the accessorial liability claims pleaded against Mr Valentine in the Proposed Claim are untenable and vulnerable to strike out. 168 First and most critically, absent any allegation of circumstances known by Mr Valentine that render any of the “Representations” false or misleading and likely to lead into error, the accessorial liability claims founded on ss 18, 29, 33 and 34 of the ACL must fail for want of an essential element. It is not sufficient to merely plead that Mr Valentine allegedly participated in or authorised the making of the “Representations” that were false or misleading or likely to mislead. 169 As regards the consumer guarantees under ss 54 and 55 of the ACL, there is no pleaded circumstances connecting Mr Valentine to the alleged contraventions of these provisions by NME or any pleaded circumstances known by Mr Valentine that would establish the requisite intention for accessorial liability. There is also no pleading that the applicant is a consumer, a necessary element for these sections to have application in this case. 170 These omissions cannot be cured by regard to any of the matters relied on in paragraphs 7 to 11A of the Proposed Claim as the foundation for Mr Valentine’s knowledge and participation in the making of the “Representations”. None are capable of giving rise to any inference of the requisite knowledge necessary to establish accessorial liability. -- 38 of 45 -- [2026] SADC 73 35 Analysis The Pleaded ACL Claims 171 The applicant seeks damages against Mr Valentine for his alleged involvement in NME’s alleged contraventions of ss 18 and 29(1)(a), (b) and (j), 33, 34, 54 and 55 the ACL pursuant to s 236 of the ACL.175 172 The primary contraventions of the ACL relied on by the applicant are found in paragraphs 89 to 95 of the Proposed Claim. The “Representations” allegedly made by Ms Peek with Mr Valentine’s knowledge and authority are the basis of each alleged contravention. It is alleged the “Representations” were made to the applicant in trade or commerce and induced the applicant to enter into “the Contract”.176 173 Contrary to the applicant’s submissions, there is no pleaded allegation of contraventions of the ACL by Cranetec. Nor is it alleged that either Cranetec or Mr Valentine made the “Representations”. Whilst this much is clear, the plea in paragraph 89 is otherwise confusing. The usage of the “Contract” is inconsistent with the earlier definitions of “NME Contract” and “CE Contract”. The inconsistency cannot be resolved by a common sense reading of the pleading as a whole since an inconsistent definition of “Contract” appears in Part 1, “Introduction by Applicant”. 174 The basis on which the applicant alleges the “Representations” made by NME contravened specific provisions of the ACL is pleaded in paragraphs 90 to 94. The specific contraventions of the ACL by NME are collectively defined as the “Contraventions”.177 175 Mr Valentine’s accessorial liability is pleaded in paragraphs 96 and 97 of the Proposed Claim in the following terms: 96. Valentine’s involvement in the making of the Representations constitutes aiding and abetting counselling or procuring them. 97. In the premises of preceding paragraphs 96, Valentine: 97.1 directly or indirectly was knowingly concerned and a party to the Representations; 97.2 held the necessary involvement and influence in respect of the conduct of NME and CE and assumed responsibility for the conduct of NME and/or CE. 97.3 in that at the time of making the Representations: 175 Proposed Claim at [113]. Despite the applicant’s submissions to the contrary, there is no allegation that Cranetec made the “Representations”. 176 Ibid at [89]. 177 Ibid at [95]. -- 39 of 45 -- [2026] SADC 73 36 97.3.1 Valentine was the sole director of NME and/or CE during the period in which it made the Representations to the Applicant as referred to in paragraphs 8, 9 and 10 herein. 97.3.2 By virtue of the facts and matters pleaded in paragraphs 7 – 11 (inclusive) herein, Valentine was aware of the scope of the Works and the supply and installation requirements of the NME Contract or the CE Contract. 97.3.3 Valentine was Liarne Peek’s boss and authorised Liarne Peek of Homelifts by Cranetec to communicate to the Applicant the matters comprised in paragraphs 8, 9 and 10 herein. The Pleaded Representations 176 The pleaded “Representations” are found in paragraphs 8, 9 and 10 of the Proposed Claim, the text of which is set out above.178 177 Recognising that a representation is a statement relating to a matter of (present or future) fact that may be express or implied and made orally or in writing or by implication from words or conduct,179 where there are multiple representations alleged to be false or misleading arising from multiple communications it is necessary for each representation to be pleaded with precision and clarity. It is essential to identify both the representation conveyed by the impugned conduct and the circumstances in which it is alleged to arise and has been communicated to the applicant for the reasons explained by the High Court in Self Care referred to above. 178 Here none of the alleged representations are pleaded in the Proposed Claim with precision or clarity. The “First”, “Second” and “Third Representations” are collectively defined as the “Representations” despite each comprising a number of logically distinct statements apparently conveyed on (three) different occasions (two of which are unspecified) to an unidentified person on behalf of the applicant. 179 To reiterate, 180 there is no longer any plea that the “Second” and “Third Representations” were conveyed by Ms Peek to the applicant (although that appears to be an unintended marking-up error). The form of each communication conveying the alleged representations to the applicant and to whom on behalf of the applicant should be identified. The form was in previous versions. If the applicant is relying on express statements made in emails sent by Ms Peek to someone representing the applicant and that is the applicant’s case, that should be expressly pleaded. If not and the alleged representation arises by implication, the basis for any implication relied on should be identified. 180 Each representation allegedly conveyed by the communications relied on should be pleaded separately from the communication and any other 178 See [46]-[48] above. 179 Given v Pryor (1979) 24 ALR 437 at 446 (Franki J). 180 See [50]-[54] above. -- 40 of 45 -- [2026] SADC 73 37 representation. Where communications allegedly convey multiple representations, they should not be conflated by collective definitions as they have been in the Proposed Claim. 181 These are not pedantic pleading points. Here, the alleged representations are the foundation of the applicant’s claims for damages based on contraventions of eight different provisions of the ACL by NME and Mr Valentine’s alleged involvement in the making of the representation. The ACL provisions relied on require different matters to be established to prove any contravention. It is therefore critical for each contravention to be properly pleaded having regard to the essential facts necessary to establish liability under the particular provision in question. This is all the more important when a claim for accessorial liability is advanced and it is necessary to plead Mr Valentine’s participation in and knowledge of all essential elements of the contravention. 182 To reiterate again, the collective definition of the “Representations” and its use throughout the Proposed Claim is particularly problematic having regard to the wide application of the provisions relied on as the foundation of discrete causes of action under the ACL. 183 This difficulty is apparent from the pleaded statements that have no apparent relevance to any alleged contravention of the ACL. There are no substantive allegations apparently made about the falsity of the statements about price,181 production time,182 what would be installed and supplied183 and what SafeWork SA would accept.184 None of these matters are logically connected to the alleged defects in the lifts (defined by reference to the Scott Schedule comprising Annexure A) or concern the quality or fitness for purpose of the lifts. None are apparently relied on as representations contravening any identified section of the ACL (despite the broad cross-referencing in some paragraphs suggesting otherwise).185 184 Other statements concern diverse and generally described matters ranging from compliance with standards,186 certification responsibility,187 technician availability and training188 to discussions with SafeWork SA about a proposed design solution.189 Despite these different subject matters, the applicant relies on the “Defective Works” set out in Annexure A as the basis for the “Representations” collectively contravening ss 18, 29, 33 and 34, simply saying:190 181 Proposed Claim at [8.1]. 182 Ibid at [8.2]. 183 Ibid at [9.2] and [9.3]. 184 Ibid at [10.1]. 185 Ibid at [91.1], [91.2] and [91.3]. 186 Ibid at [8.3]. 187 Ibid at [9.4]. 188 Ibid at [9.2] and [10.2.4]. 189 Ibid at [10.2.1], [10.2.2] and [10.2.3]. 190 Ibid at [90.4], [91.4] and [92.4]. -- 41 of 45 -- [2026] SADC 73 38 …that those defects demonstrate that the Representations were misrepresentations or misleading and deceptive. 185 The applicant also relies on “Defective Works” set out in Annexure A to the Proposed Claim as particulars as to why the supplied and installed lifts were consumer goods of unacceptable quality within the meaning of s 54 of the ACL and not fit for the applicant’s “Disclosed Purpose” contrary to s 55 of the ACL.191 186 These are impermissible generalised ‘rolled up’ pleas for the reasons discussed above.192 When attention is given to the 51 defect items in Annexure A, it is plain they all do not concern all the alleged “Representations” and thereby demonstrate that collectively they are false or misleading or deceptive. To the extent any defect item concerns any “Representation” and is relied on to establish a contravention of any provision of the ACL it should be separately identified having regard to the different and essential elements of each alleged contravention. 187 Mr Valentine and the Court should not have to speculate about the representations alleged to arise from each communication and the basis on which each one contravenes the various provisions of the ACL relied on by the applicant. The Pleaded Discussions 188 New pleas are introduced in paragraphs 7A, 8B, 8F and 9A alleging discussions between Mr Valentine and Ms Peek at unknown times preceding the occasion of each alleged representation. These discussions are relied on as constituting Mr Valentine’s knowledge of the “Representations” and his authority to convey those “Representations” to the applicant. The alleged time of each discussion is stated to be unknown until discovery and inspection. 189 These pleas are generic and devoid of any particulars, indicating impermissible fishing and speculation notwithstanding the all too common practice of tolerating such pleas at earlier stages of a proceeding. Accessorial Liability 190 In its reformulated claim, the applicant alleges Mr Valentine’s involvement in the making of the “Representations” by NME constitutes aiding and abetting, counselling and procuring them193 and that in those premises, he was directly or indirectly, knowingly concerned in and a party to them.194 191 These conclusionary pleas are supported by allegations that at the time of making the “Representations”, Mr Valentine was the companies’ sole director, was aware of the scope of the works and supply and installation requirements under the Contract made with either of them and, as Ms Peek’s boss, authorised her to 191 Ibid at [93] and [94]. 192 See [59]-[72] above. 193 Proposed Claim at [96]. 194 Ibid at [97.1]. -- 42 of 45 -- [2026] SADC 73 39 make them to the applicant.195 The applicant also relies on the following bare plea that Mr Valentine:196 held the necessary involvement and influence in respect of the conduct of NME and CE and assumed responsibility for the conduct of NME and/or CE. 192 Whilst Mr Valentine’s conduct amounting to involvement in the “Representations” and the “Contraventions” is now identified, these pleas remain inadequate to establish a complete cause of action for accessorial liability under the ACL. First and most fundamentally, there is still no pleading of Mr Valentine’s knowledge of any of the essential facts constituting any of the alleged contraventions of the ACL from which his intention to participate as an accessory is to be inferred. Secondly, the alleged facts do not address all the elements of the different provisions of the ACL. 193 In the context of a misleading and deceptive representation made in contravention of s 18 of the ACL (and for that matter also ss 29, 33 and 34), involvement requires the accessory to know not only that the representation was made, but that it had a tendency to lead others into error.197 Knowledge of that tendency or likelihood would be inferred if the accessory knew the statement was false. Knowledge that conduct would or was likely to lead others into error generally requires knowledge of falsity.198 194 Here there is no pleading that Mr Valentine knew of any matters that rendered any of the “Representations” false or misleading or deceptive and having a tendency to lead the applicant into error (or otherwise constituted essential elements of the other alleged contraventions of the ACL). Since any known matters must be actually and contemporaneously known, defects subsequently identified in the lifts cannot found the requisite intention to be involved in the alleged contraventions constituted by the making of the “Representations”. 195 As regards the contraventions based on ss 33 and 34 of the ACL, the basis upon which the lifts are goods as opposed to services for these provisions to apply is not identified. There is no pleaded public element to the “Representations” nor any pleaded circumstances known by Mr Valentine that rendered the “Representations” liable to mislead as to the characteristics of the lifts or their suitability for the applicant’s disclosed purpose, whether goods or services. 196 As regards the consumer guarantees under ss 54 and 55 of the ACL, there are no pleaded circumstances connecting Mr Valentine to the alleged contraventions of these provisions by NME or any pleaded circumstances known by Mr Valentine and establishing the requisite intention for accessorial liability. There is also no 195 Ibid at [97.3]. 196 Ibid at [97.2]. 197 Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 198-199 (Gibbs CJ). 198 Anchorage Capital Master Offshore Ltd v Sparkes (2023) 111 NSWLR 304 at 260 at [330], 362 at [332] (the Court). -- 43 of 45 -- [2026] SADC 73 40 pleading that the applicant is a consumer, a necessary element for these provisions to have application in any case. 197 By reason of the failure to plead any material facts establishing Mr Valentine’s knowledge of the essence of any of the primary contraventions by NME and therefore Mr Valentine’s intention to participate in NME’s contraventions of the ACL, the applicant’s pleaded case of accessorial liability against Mr Valentine is untenable and is vulnerable to strike out. Loss and Damage 198 The applicant claims both wasted expenditure for monies paid to NME for the lifts and the costs of replacing the lifts. It cannot have both. 199 The applicant further claims an indemnity against Mr Valentine for an unspecified amount to compensate the owners of the villas for their unspecified losses including loss of amenity arising out of the “Defective Works”. The legal basis of the owner’s claims is not identified. These pleas are insufficient to sustain any meaningful claim for contribution or indemnity. Moreover, under s 236 of the ACL the applicant is only entitled to recover loss and damage actually suffered and is not entitled to damages for a contingent loss if that is what is sought. Mr Valentine’s Application to Strike Out 200 By interlocutory application dated 15 October 2024199 Mr Valentine seeks orders striking out paragraphs 56-58, 62-63 and 76 of the applicant’s filed statement of claim.200 201 In its filed statement of claim, the applicant presses claims for accessorial liability against Mr Valentine for contraventions of ss 18, 29, 33, 54 and 55 of the ACL by NME. 202 The primary contraventions pleaded in paragraphs 56 to 58 of the filed statement of claim are bare conclusions unsupported by any factual foundation as to why the alleged representations were false, misleading or deceptive or why the lifts were not of acceptable quality of fit for the applicant’s disclosed purpose. These pleas are plainly inadequate where there are a series of representations comprising 12 statements allegedly constituting contraventions of five separate provisions of the ACL. 203 There is also no pleaded factual foundation for Mr Valentine’s alleged responsibility for the making of the “Representations” or his alleged involvement by inducing or authorising or being directly or indirectly knowingly concerned and party to the primary contraventions. Absent any pleaded factual foundation for Mr Valentine’s participation and knowledge of the essential elements of the 199 FDN 30. 200 FDN 1. -- 44 of 45 -- [2026] SADC 73 41 primary contraventions of the ACL, the causes of action against him for accessorial liability are wholly inadequate and should be struck out on this basis alone. 204 By its application to amend, the applicant has in effect conceded that the parts challenged by Mr Valentine in its filed claim should be struck out. Orders 205 The applicant’s application for leave to amend in the form of the Proposed Claim should be refused. It does not disclose any reasonable cause of action against Mr Valentine in negligence or for accessorial liability for the first respondent’s alleged contraventions of the ACL. Mr Valentine’s application to strike out parts of the applicant’s filed claim should be granted in the terms sought. 206 The next question is whether the Proposed Claim discloses any ability for the applicant to reformulate a reasonable cause of action by addressing the material deficiencies identified in these reasons, bearing in mind the restraint that should be exercised before reaching a conclusion that there is not. 207 Accepting that the threshold is a high one, this was nevertheless the applicant’s third unsuccessful attempt to propose an amended statement of claim against Mr Valentine after considered and lengthy adversarial argument on two occasions.201 Whilst it must be acknowledged that a party may not know every detail of the claim they wish to pursue, and may rely on inferences drawn from limited information, they must have a reasonable basis for making their claim. Here there is a clear failure and inability to disclose a reasonable cause of action against Mr Valentine on the facts alleged. Leave to reformulate and propose a fourth version of proposed statement of claim against Mr Valentine should not be granted having regard to the interests of finality and obvious case flow management considerations in the circumstances of this case. 208 Orders will be made dismissing the applicant’s application to amend and striking out paragraphs 56-58, 62-63 and 76 of the applicant’s filed statement of claim. It is appropriate that cost follow the event and the applicant pay Mr Valentine’s costs of and incidental to both applications for leave to amend and strike out on the standard costs basis, as taxed or agreed and certified fit for junior counsel. 209 The question as to whether the costs of and incidental to the third Proposed Claim should be awarded on a higher basis is reserved for further consideration by the parties and the Court in circumstances where this was the applicant’s third attempt to plead a tenable cause of action against Mr Valentine and key inadequacies identified in previous versions of the Proposed Claim nevertheless remained unaddressed. 201 20 March and 4 July 2025. -- 45 of 45 --