Clark & Anor v On the Level Pty Ltd & Anor [2026] QSC 135

SUPREME COURT OF QUEENSLAND CITATION: Clark & Anor v On the Level Pty Ltd & Anor [2026] QSC 135 PARTIES: JONATHAN HARTLEY CLARK (first applicant) OLIVIA CATHERINE CLARK (second applicant) v ON THE LEVEL (QLD) PTY LTD ACN 095 898 767 (first respondent) HH (CABOOLTURE) PTY LTD ACN 062 194 861 (second respondent) FILE NO/S: 355/25 and 104/26 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Rockhampton DELIVERED ON: 15 June 2026 DELIVERED AT: Rockhampton HEARING DATE: 9 June 2026 JUDGE: Crow J ORDER: Paragraph 45 CATCHWORDS: PROCEDURE- PLEADINGS- STATEMENT OF CLAIM- AMENDMENT- Where the applicants entered into a written contract for the construction of a residential dwelling with the first respondent- Where the second respondent was engaged to provide engineering plans to ensure the footing and slab complied with Australian standards due to reactive soil- Where the applicant initially sued in QCAT for breach of contract, negligence, and misleading and deceptive conduct- where the application was transferred to the District Court in Brisbane and further, the Supreme Court in Rockhampton- whether leave should be granted to amend the pleadings of the consolidated amended statement of claim. Buildings Act 1975 (Qld) s10 Civil Proceedings Act 2011 (Qld) s16 -- 1 of 15 -- 2 Competition and Consumer Act 2010 (Cth) sch 2 (Australian Consumer Law) s18, s29, s236, s237 Uniform Civil procedure Rules r376 Bittun Pty Ltd v Karageozis [2026] QCA 107. Commonwealth of Australia v Winston (2024) 116 NSWLR 111. Devine Constructions Pty Ltd v Heinrich Constructions Pty Ltd [2024] QSC 285. Draney v Barry [2002] 1 Qd R 145. Stimpson v O’Toole [2022] QCA 194. Thomas v State of Queensland [2001] QCA 336 Menegazzo v PriceWaterhouseCooper (a firm) [2016] QSC 94. Wardley Australia Ltd and Wardley Australia Securities Ltd v State of Western Australia (1992) 175 CLR 515. COUNSEL: K Holyoak on behalf of the applicants JJT Dudley on behalf of the first respondent MC Long on behalf of the second respondent SOLICITORS: Grant & Simpson on behalf of the applicants Axis Litigation on behalf of the first respondent Boss Lawyers on behalf of the second respondent [1] The applicants, Mr & Mrs Clark, entered into a written contract for the construction of a residential dwelling on 16 December 2013. The contract was entered into with the first respondent, On the Level (Qld) Pty Ltd (“OTL”) for the construction of a residential home in Roma. The contract provided for the footing to be prepared with in accordance with an engineer’s plan to a soil classification of E-D. [2] A soil classification of E-D meant the soil at the property was extremely reactive and therefore may cause extreme amount of ground movement. The builder engaged an engineer, the second respondent HH (Caboolture) Pty Ltd (“HHC”) to provide engineering plans including a footing and slab layout plan. The engineer HHC prepared the plans, which for the soil classification of E-D required the footing and slab to comply with Australian Standard AS 2870-2011. [3] Mr Hendriks, engineer of HHC, signed a Form 15 compliance certification for building design specification on 12 August 2014. That Form 15 certified the footing, -- 2 of 15 -- 3 slab and frame and certified they complied, inter alia, with AS 2870-2011. Mr Hendriks was carrying out a building certifying function as defined under s 10 of the Building Act 1975 and he gave “a certificate in the approved form for the stage of the building works, that is, after excavation of a foundation material and before the footings for the building are laid…” [4] On 21 October 2014, Mr Hendriks gave a Form 16 inspection certificate under the Building Act 1975 certifying that the footing and slab had met the requirements of the soils report, that is, for an E-D classification and met the requirement for the engineering plan designed for an E-D soil classification. [5] On 1 April 2015, the builder issued a Form 1 certificate of occupancy for the dwelling. On 23 April 2015, Mr & Mrs Clark paid the builder all monies owing under the contract and took possession of the property. It was thereafter rented. [6] Mr Clark alleges between 11 April 2016 and 18 November 2016, he observed some small cracks in the walls of the house and that over a period of time the cracking has progressed. [7] On 21 July 2021, Soil Tech Testing Services issued a soil classification report for the property classifying the soil as P-D due to the presence of uncontrolled fill underneath the slab. On 23 August 2023, Stanford Structural issued an engineering report identifying 43 internal cracks in the house and numerous other problems. [8] On 25 August 2023, Mr & Mrs Clark filed an application for domestic building dispute in QCAT that was allocated case number BDL281 suing the builder for breach of contract, negligence and misleading and deceptive conduct. [9] Without a hearing on the merits and after 2 ½ years that application was transferred to the District Court at Brisbane under file number BD567 of 2026 and then on 2 April 2026 transferred to the Supreme Court at Rockhampton under file S111 of 2026. [10] Also on 25 August 2023, Mr & Mrs Clark sued the engineer, HHC, in the District Court at Roma under file D1 of 2023. That file was subsequently transferred to the District Court in Brisbane under D1 of 2023 and then on 2 April 2026 transferred from the District Court at Brisbane to the Supreme Court at Rockhampton as S108 of 2026. -- 3 of 15 -- 4 [11] On 20 December 2024, Mr & Mrs Clark issued a claim and statement of claim out of the District Court at Roma, D3/24 against HHC seeking damages for economic loss and property damage that became D1/2025 out of the District Court at Brisbane and subsequently S110 of 2026 of the Supreme Court at Rockhampton. [12] Finally, Mr & Mrs Clark again sued the builder on 20 December 2024 issuing claim D4/24 out of the District Court at Roma on 20 December 2024. That claim became Brisbane District Court claim D2 of 2025 and subsequently Rockhampton Supreme Court file S109 of 2026. [13] On 2 April 2026 I made an order transferring each of the four proceedings pending in the District Court at Brisbane to the Supreme Court at Rockhampton and made directions for the filing of a consolidated statement of claim. [14] By application filed 1 May 2026, Mr & Mrs Clark applied for an order that they are able to file and serve a consolidated amended statement of claim in the Supreme Court and in particular that they be granted leave pursuant to s 16 of the Civil Proceedings Act 2011 (Qld) or alternatively rule 376 of Uniform Civil Procedure Rules 1999 (Qld) to make amendments to paragraph 49 to 63, 64-67, 68-80, 96-110 and 111 to 118 of the draft consolidated amended statement of claim (CASOC). [15] The first defendant raises no objections to the draft CASOC. The second defendant, HHC, disputes only the amendments as contained in paragraphs 96-110 of the CASOC. [16] Paragraphs 96-110 of the CASOC seek to advance causes of action against the engineer HHC for misleading and deceptive conduct in breach of s 18 of the Australian Consumer Law and for misrepresentation in breach of s 29(b) and (g) of the Australian Consumer Law. The parties refer to these causes of action as the “representation claims”. A claim for damages under s 236 of the ACL has a six-year period of limitation under s 237 of the ACL. As it is most undesirable to attempt to determine any limitation questions in an interlocutory proceeding in a matter of this nature1, both counsel for the applicant and second respondent submit that r 376 has not been engaged. 1 Wardley Australia Ltd and Wardley Australia Securities Ltd v State of Western Australia (1992) 175 CLR 515 at 533 per Mason CJ, Dawson, Gaudron and McHugh JJ. -- 4 of 15 -- 5 [17] In cases where r 376 is engaged, there can be no recourse to the general discretion under s 16 of the Civil Proceedings Act2. Both parties therefore submit, and I accept, that the question to allow or disallow the amendments ought to be decided pursuant to s 16 of the Civil Proceedings Act 2011. Section 16 provides: 16 Amendment for new cause of action or party (1) This section applies to an amendment of a claim, anything written on a claim, pleadings, an application or another document in a proceeding. (2) The court may order an amendment to be made, or grant leave to a party to make an amendment, even though— (a) the amendment will include or substitute a cause of action or add a new party; or (b) the cause of action included or substituted arose after the proceeding was started; or (c) a relevant period of limitation, current when the proceeding was started, has ended. (3) Despite subsection (2), the rules of court may limit the circumstances in which amendments may be made. (4) This section— (a) applies despite the Limitation of Actions Act 1974; and (b) does not limit section 103H. [18] In Stimpson v O’Toole [2022] QCA 194, Bowskill CJ, Mullins JA and Boddice J said at [38]-[40] and [50]: “[38] Mr Grant-Taylor QC (who appears with Mr O’Sullivan of counsel for Ms Stimpson) submits that where r 376(1) of the UCPR did not apply to a proposed amendment, so that a party could not proceed to add a new cause of action pursuant to r 376, there was no scope for r 376 to operate as anticipated by s 16(3) of the CPA and the party was entitled to have recourse to the broad discretion conferred on the court pursuant to s 16(2) of the CPA. Mr Diehm QC who appears on behalf of the second respondent agrees with that construction of s 16 of the CPA, making the submission that, as r 376 does not apply to the addition of the new cause of action in the proceeding sought by Ms Stimpson, there is no relevant rule that limits the application of s 16 of the CPA. [39] The parties note that for the same reason that r 376 does not apply to Ms Stimpson’s application, s 16(2)(c) does not apply. 2 Stimpson v O’Toole [2022] QCA 194 at [40]. -- 5 of 15 -- 6 Both parties urge the Court to exercise the general discretion provided for in s 16(2) of the CPA in deciding whether to allow the amendment to add the new cause of action. [40] This construction of s 16 of the CPA advanced by both parties must be correct. The decision of the majority in Draney was addressed by the Legislature’s amendment of s 81 of the SCQA to make it clear that, if the rules of court limit the circumstances in which amendments may be made, there was not to be recourse to s 81 when the relevant rule of court providing for amendment to add a new cause of action or a new party applied. If the circumstances for r 376 of the UCPR to apply (pursuant to either r 376(1) or r 376(4)(b)) are not applicable to a particular case, then the general discretion under s 81 (now s 16 of the CPA) remained. It would usually be a relevant factor to take into account in the exercise of the discretion under s 16(2) of the CPA that r 376 of the UCPR was not applicable. How that factor is taken into account will depend on the circumstances of the case, so that it cannot be characterised as a factor that will affect the exercise of the discretion in one way only or the other way only. […] [50] In accordance with Draney, the exercise of the discretion under s 16(2) of the CPA requires the weighing up of all the relevant factors to determine whether it is in the interests of justice to make the order sought by an applicant. In the circumstances of this particular case, weighing up those factors results in the conclusion that the interests of justice favour granting the leave to Ms Stimpson pursuant to s 16 of the CPA to amend the claim and the statement of claim in the proceeding in the manner shown in the drafts exhibited to her solicitor’s affidavit that was before the primary judge.” [19] The power to grant leave to amend a pleading to introduce a new cause of action which is statute barred is less confined under s 16(2) of the Civil Proceedings Act than under r 376 Uniform Civil Procedure Rules 1999 (Qld)3. Mr Holyoak who appears for Mr & Mrs Clark submits that the applicants have shown that they ought to be granted leave to amend their pleading to bring the representation claims as it is in the interest of justice to do so and although the applicants are not bound by the more confined power under r 376(4), they have met that higher standard. Mr Holyoak submits that even though it cannot be shown that the representation claims are out of time, it can be shown that they arise out of substantially the same facts as the existing causes of action. 3 Hyacinth Developments Pty Ltd v Scenic Rim Regional Council & Ors [2018] QSC 230 per Douglas J at [32]-[33]. -- 6 of 15 -- 7 [20] In Draney v Barry [2002] 1 Qd R 145 at 146, Thomas JA, with whom McMurdo P agreed, said: “[57] Rule 376 provides a structure within which courts may regulate such procedural applications with due regard to the interests of all parties. Sub- rule (4), which is directly relevant in the present context, allows a fairly wide discretion in that the court will not allow such an amendment unless it considers it “appropriate” to do so and also considers that the new cause of action arises at least substantially out of the same facts as the existing cause of action. I do not think that “substantially the same facts” should be read as tantamount to the same facts, and consider that the need to prove some additional facts is not necessarily fatal to a favourable exercise of discretion under r. 376(4). If the necessary additional facts to support the new cause of action arise out of substantially the same story as that which would have to be told to support the original cause of action, the fact that there is a changed focus with elicitation of additional details should not of itself prevent a finding that the new cause of action arises out of substantially the same facts. In short, this particular requirement should not be seen as a straitjacket.” [footnotes omitted] [21] In Thomas v State of Queensland [2001] QCA 336, the Court said at [19]: “[19] That may be thought to encourage a fairly broad brush comparison between the nature of the original claim and that to which it is sought to be amended. It accords we think with Thomas JA's statement in Draney v Barry which might usefully be repeated here. "I do not think that 'substantially the same facts' should be read as tantamount to the same facts, and consider that the need to prove some additional facts is not necessarily fatal to a favourable exercise of discretion under R376(4). If the necessary additional facts to support the new cause of action arise out of substantially the same story as that which would have to be told to support the original cause of action, the fact that there is a changed focus with elicitation of additional details should not of itself prevent a finding that the new cause of action arises out of substantially the same facts. In short, this particular requirement should not be seen as a straitjacket." Of course "the story" is a shorthand reference to the matters that the plaintiff has to prove. If it had to be proved, for example, that the road should have been differently constructed in the 1940s there would not only be a different case (i.e. cause of action) there would be a substantial difference in the material facts now requiring to be proved. Quite apart from this, further consideration would have to be given to the question of prejudice. There are therefore limits to which a broad brush -- 7 of 15 -- 8 approach can provide the necessary answer. There will commonly be three separate questions to consider - (a) Is there a new cause of action? (b) arising out of substantially the same facts? (c) prejudice.” [footnotes omitted] [22] Applegarth J helpfully summarised the “same story” metaphor, and the objection test in Menegazzo v PriceWaterhouseCooper (a firm) [2016] QSC 94 at [48]-[50]: “[48] The words “substantially the same facts” should not be read as tantamount to the same facts. The rule presupposes the addition of facts in an amended pleading in support of a new cause of action. As Thomas JA observed in Draney v Barry: “If the necessary additional facts to support the new cause of action arise out of substantially the same story as that which would have to be told to support the original cause of action, the fact that there is a changed focus with elicitation of additional details should not of itself prevent a finding that the new cause of action arises out of substantially the same facts. In short, this particular requirement should not be seen as a straitjacket.” The story metaphor in this passage has proven a useful and enduring one. However, as the Court of Appeal constituted by McMurdo P, Thomas JA and Holmes J (as her Honour then was) observed in Thomas v State of Queensland, the “story” is a shorthand reference to the matters that the plaintiff has to prove. Some authorities may be thought to encourage “a fairly broad bush comparison between the nature of the original claim and that to which it is sought to be amended”. However, as Thomas v Queensland exemplifies, on occasions a judge can use “rather too broad a brush”. [49] Depending upon the circumstances of the particular case, an amendment which sets out a different breach of duty may not be within the scope of r 376(4)(b). One possible inquiry in assessing whether the new cause of action arises out of substantially the same facts is to consider what would have happened if, at trial, the plaintiff sought to lead evidence of the facts without having made the amendment. If the evidence would clearly be objectionable on the ground of surprise or on the ground that it was simply irrelevant to the case raised by the plaintiff’s pleading, then this may assist in determining whether the requirement of r 376(4)(b) is satisfied. In a case alleging breaches of duty, the inclusion of additional facts which raise quite different breaches of duty may lead to the conclusion that the new cause of action based on the new breach of duty does -- 8 of 15 -- 9 not arise out of substantially the same facts as a cause of action for which relief has already been claimed. [50] The helpful test of asking whether the additional facts arise out of “substantially the same story”, like the inquiry into what would have happened if the plaintiff had sought to lead evidence of the new facts without having made the amendment, are practical tests applied in reaching a conclusion about whether the requirement of r 376(4)(b) is satisfied. One returns to the words of the rule: “substantially the same facts”. A question of degree is involved. [23] Similarly, Kelly J in Devine Constructions Pty Ltd v Heinrich Constructions Pty Ltd [2024] QSC 285 said: “[26] The essential question posed by r 376(4)(b) is whether the new cause of action arises out of “substantially the same facts” as a cause of action for which relief already has been claimed. That question involves a “fairly broad brush comparison”, but not one involving “too broad a brush”, between the nature of the original claim and that to which it is sought to be amended. The question involves matters of “impression”, and “degree”. The answer to the question is informed by policies underlying the applicable limitations statute. The words “substantially the same facts” are not to be viewed as a “straitjacket”. The rule countenances the introduction of some new facts in support of a new cause of action, without requiring precise similarity of factual circumstances. [28] Another inquiry involves considering whether evidence of the new facts would have been objectionable at a trial on the grounds of surprise or relevance, without the plaintiff having made the amendment. That type of inquiry was adopted by Keane JA in Wolfe v Queensland. [33] It may be accepted that the facts of other cases are unlikely to be determinative, or particularly informative, about the proper application of r 376(4) in any given case. Nevertheless, the reasoning adopted in relation to other factual scenarios is of some assistance in understanding the proper application of the “fairly broad brush comparison” countenanced by the rule.” [footnotes omitted] [24] The use of metaphors such as the “same story” test has been the subject of some criticism4, but it seems to me scarcely distracts from a proper analysis of comparing 4 Commonwealth of Australia v Winston (2024) 116 NSWLR 111 per Leaming JA at [117-120], [130]. -- 9 of 15 -- 10 the existing pleadings and the proposed pleadings as a matter of substance rather than form. Freeburn J demonstrated this in Bittun Pty Ltd v Karageozis [2026] QCA 107. [25] The authorities have shown in order to determine whether the new causes of action arise out of substantially the same facts, close attention needs to be brought to the facts alleged in the existing claim and the facts sought to included in the proposed statement of claim. [26] It is necessary therefore to examine the facts alleged in Mr & Mrs Clark’s original claim against the engineer HHC. They are set out in statement of claim D1/23 issued out of the Roma District Court on 24 August 2023. There are numerous allegations in D1/23 which relate to the proposed representation claims the subject of paragraphs 96 to 110 of the CASOC. These include paragraph 2(c)(ii) in which the Clarks allege that the engineer engaged in the business of engineering design and specification and technical inspection including but not limited to concrete slabs, pier stumps and footings, bracing, external works, site drainage, inspections and certification, site survey of existing site infrastructure and soil conditions, all defined within the broad term of appropriate engineering services. [27] As is required by the Building Act 1975, forms 15 and 16 are a necessary statutory pre-cursor to the certification of occupancy which is the subject of paragraph 4 of D1/23. Paragraph 8 of the original pleading sets out the progressive defects which were located. Paragraphs 9 and 10 of the pleading allege that the Clarks asked the builder to attend and provide an assessment, however, the builder refused to do so but rather asserted that the property was built in accordance with engineering plans. There is some importance in that because paragraph 8 specifies the evolving nature of the cracking in the residential premises which pointed to some type of engineering problem. [28] The original pleading then through paragraphs 11 to 17 alleges facts relating to the discovery of further defects in the property. In paragraph 16 of the original pleading, reference is made to numerous failings including that the slab did not meet the current requirements of AS 2870-2011 (paragraph 16(l)) as well as the layout of the footing being contrary to AS 2870 (paragraph 16(m)). Further allegations of a failure to comply with the provisions of AS 2870 in paragraphs 20(a)(iv), 20(b), with further allegations of breaches of AS 2870 in paragraph 20(h). -- 10 of 15 -- 11 [29] Perhaps the nub of the case or the “story” to be told in the case is set out in paragraphs 21 and 22 of the original pleading which allege that movement has occurred that has adversely affected the structural adequacy performance or functional use of the dwelling and that has been caused by the multiple design failures of the engineer. [30] Importantly, paragraphs 22(d), (e), (f), (g) and (h), by which Mr & Mrs Clark allege the footing and slab movements were caused by “(d) failure by the defendant to design the property to AS 2870 for correct soil classification for performance criteria for the footings and slabs for the property; (e) failure by the defendant to ensure the footings and slabs as designed do not exceed the 1/100 criteria; (f) failure by the defendant to design a footing beam of a depth compliant with AS 2870 and further to deal with any increase in potential ground movement; (g) improper layout of the footing beams designed by the defendant so as to comply with the provisions of AS 2870 (h) failure by the defendant to observe relevant soil classifications and re-classifications and take remedial actions to engineer the property so as to stabilise the footing systems and foundations of the property.” [31] The original pleading by paragraph 23 claims damages in a broad fashion, that is broad enough to encompass both property damage and economic loss. [32] Paragraph 24 specifically alleges the engineer is in breach of contract for failing to comply with the legislative requirements in carrying out engineering services and to do all things necessary and necessary incidentals for proper performance of engineering services. As noted above, s 10 of the Building Act required both the form 15 and 16 certifications to be made by a competent person. [33] In terms of negligence at paragraph 28 of the original pleading, it was alleged that it was reasonably foreseeable that if the property slabs and footings were not designed, constructed and engineered pursuant to AS 2870 then significant loss or damage may be caused to the plaintiff and that loss is particularised in paragraph 31 to be the costs incurred in rectification work, loss of income and loss of value as a rental property. [34] Breaches by the engineer were specified in paragraphs 34(c), (d), (e), (g), (h), (i), (k), (l) and (m) all assert that he breached a duty of care to provide professional -- 11 of 15 -- 12 engineering services. Importantly in paragraph 34(i), the specific allegation is that HHC the engineer failed to alert the builder of any design deficiency in its drawings in the course of the construction of the property, and paragraph (j) to properly and skilfully inspect the construction works of the property at the appropriate junction to identify any design deficiencies brings squarely into play the issuance of the forms 15 and 16 compliance certificate and inspection certificate. [35] The representation claims are defined expressly by reference to paragraphs 9 and 12 of the CASOC which relate to the issue of the form 15 on 12 August 2014 and the issue of the form 16 on 21 October 2014. Whilst it is true that the forms 15 and 16 were not expressly referenced in the original pleading, they were factually and legislatively an essential part of HHC’s services. Indeed, it is conceded on behalf of HHC that there could be no objection to the tender of the forms 15 and 16 at the trial of any proceeding on the basis of the old pleadings. In my view, that concession was rightly made. The issuance by the second defendant of the forms 15 and 16 will more than satisfy the substantially same facts test. Indeed, without objection they are a critical part of the negligence claim as contained in paragraphs 84, 85, 86, 87 and 92 of the CASOC. In my view they satisfy the “same story test”. [36] Paragraphs 104 and 105 of the CASOC raise the issue of reliance by Mr & Mrs Clark upon the representations. I accept the second defendant’s submission is that a factual issue which was not directly raised in the original pleading. It seems to me, however, that even though the forms 15 and 16 were not referred to in the original pleading, the certificate of occupancy was and the forms 15 and 16 are a necessary statutory predecessor to the issuance of a certificate of occupancy. Furthermore, the reliance issue is only one element of the representation cause of action and it seems to me when regard is had to the policy underlying limitations statutes, the factual issue of reliance is raised on substantially the same facts as the original pleading. Mr & Mrs Clark’s reliance upon the forms 15 and 16 is an issue which can, even with the passage of time, be fairly tested in the litigation as it is a matter within their own knowledge. [37] There is the primary pleading in paragraph 98(a) and (b) of CASOC that the representations made by the completion of the forms 15 and 16 were representations of present fact that HHC did not have reasonable grounds for making those representations, however, particulars of the basis for not having reasonable grounds -- 12 of 15 -- 13 are set out in paragraphs 84 to 89 which again particularise the negligence claim. That is essentially the old claim [38] HHC raises as a matter of prejudice the fact that the certifying engineer, Mr Hendriks, has at some undefined point after the institution of the original proceedings, passed away. HHC submits claims that it is prejudiced in this regard, however, no affidavit has been filed claiming any specific prejudice. There is no material from the second respondent as to when Mr Hendriks passed away, what, if anything was done in terms of preserving Mr Hendriks’ evidence and what, if any, difficulty may arise in the proper conduct of the defence of the second defendant as a result of Mr Hendriks passing away. With respect to the allegation that the representations were a representation of present fact as stated above, the lack of reasonable grounds for making those representation is based squarely in the negligence pleading, and therefore it ought to have been a matter which had been addressed by HHC, and there is no evidence to suggest that it was not. [39] By paragraph 98(c) of CASOC an alternative submission is put that if any of the representations were in respect to a future matter, then HHC did not have reasonable grounds for making the representations. Again, however, the reasonable basis for (or lack of reasonable basis for) forming the opinion constituted by the representations is the negligence claims particularised in paragraphs 84 to 89. I conclude that although there is no specific prejudice, there is a broad and general prejudice arising from the fact that Mr Hendriks has passed away and that he cannot be called and cross- examined and tested in respect of his evidence. [40] Although strictly not required to show same, it does seem to me that the new causes of action with respect to the misrepresentation claims do arise out of substantially the same facts as those alleged in the original pleading. I would conclude that the story is the same and accordingly with respect to other general discretionary factors it seems to me that there is no specific prejudice which has been demonstrated by HHC. [41] These proceedings have been bedevilled by delay, however, the delay is properly explicable. Firstly as may be observed upon both the original pleadings and the CASOC, the nature of the defects is that they were an evolving problem over a period of many years and subject to considerable investigation during that period. -- 13 of 15 -- 14 [42] The original proceedings were commenced within time and have themselves been bedevilled by delay, however, that the delay cannot be laid solely at the feet of the applicants. There was a lengthy and complicated QCAT process which did not resolve the issues, and then removal of the QCAT claim and the District Court claims at Roma through to the District Courts at Brisbane and now the Supreme Court at Rockhampton. [43] A further issue is raised by the second defendant being the lack of proper particularisation of the damages claimed in the CASOC. This, however, is explained in the affidavit of Mr Grant filed 5 June 2026, that is, there is current estimated costs of demolishing and rebuilding of some $902,000 together with the further necessary repairs at $41,342, a loss of rental to date at $25,000 and a loss of rental during demolition and rebuild of some $31,200, making the current loss in damages at $1,089,742. That could be pled and would be an adequate pleading, however, as Mr Grant’s affidavit points out, considerable works are underway in order to obtain an up to date and precise measure of the damages, being the cost of demolition and rebuild. Those steps require the completion of the new structural plans by Peter Stanford Structural Engineers. Those plans then need to be submitted to council for approval and when they are, a local Roma builder, Mr Murray, will provide an accurate quotation. Mr Grant’s affidavit attaches a quote from Mr Murray the builder however the quotation is dated 23 December 2025 with Mr Grant being advised by the engineer through the builder that costs have increased by approximately 10%. [44] Although perhaps with the benefit of hindsight it may have been preferable to plead the estimate of damages in terms of paragraph 8 of Mr Grant’s affidavit, that is a particularisation of the damages currently estimated at $1,089,742, it is the case that damages will need to be re-pled when the further work suggested by Mr Grant is undertaken. Given the current close particularisation contained in paragraph 8 of Mr Grant’s affidavit, it seems to me that there is no great prejudice suffered by the defendants in giving leave to file and serve the CASOC in its current form, that is, without the closely particularised damages claim. [45] In conclusion, I am satisfied that I ought to grant leave to amend the pleadings to include the disputed paragraphs 96-110 of the CASOC, as it is, for a combination of the foregoing reasons, in the interest of justice to do so. -- 14 of 15 -- 15 [46] I will from parties as to the costs and appropriate forms of orders -- 15 of 15 --