Federal Court of Australia

Hubexo Australia Pty Ltd v CoreLogic Australia Pty Ltd (Amendment of Defence) [2026] FCA 547

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed by the respondents on 14 April 2026 be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Delivered ex tempore, revised from transcript

NEEDHAM J:

1    This matter commenced six weeks of hearing on Monday, 13 April 2026. Today is day three. On Friday, 10 April 2026 the respondents notified the applicant that they would seek to amend their Amended Defence further, ostensibly in response to an invitation by the applicant in its reply submissions dated 14 April 2026, that they do so. That invitation appears in paragraph 6 of the applicant’s reply submissions and refers to concessions or admissions by the respondents in relation to the claim of inducement of breach of contract.

2    The respondents’ proposed Further Amended Defence sought pursuant to r 16.53(1) to make admissions in relation to paragraphs 23, 26, 33, 38, 41AA, 41B, 42C, 51, 52, 53 and 54 of the Further Amended Statement of Claim (FASOC) reflecting their written outline of opening submissions which was filed on 6 April 2026. When the application to amend was made, the applicant contended that the proposed admissions were confusing and vague, and the respondents withdrew them. In discussion with Senior Counsel for the respondents, Mr Martin KC, it was clarified that the position in the opening submissions reflected the position of the respondents, and so they did not seek to amend the defence in relation to those paragraphs. They do however seek leave to amend the defence in relation to other paragraphs of the FASOC. These fall into two categories.

3    The first category is to seek leave to withdraw admissions previously made with respect to conduct of RP Data alleged by the applicant. The applicant filed its FASOC on 12 September 2025. In that pleading, the dates in paragraphs 43A and 43B were varied from February 2018 in each case to an earlier date. The respondents amended their defence on 14 October 2025 and did not make any substantive amendment to the ground of defence in paragraph 43A. Paragraph 43B was changed, but not in relation to the date alleged as to the conduct pleaded. The respondents now seek to withdraw those admissions and insert a denial in paragraph 43A(a) that the process commenced on 2 December 2016, and to say in paragraph 43A(b) that the process commenced on about 16 May 2018, and otherwise deny the allegation. The conduct of RP Data remains admitted. In relation to paragraph 43B, the respondents deny that the request and provision of the comparative documents commenced in February 2017 and say that the request and provision of those documents commenced on about 16 May 2018.

4    The applicant objects to the amendment of these paragraphs partly because of a lack of explanation, partly because of the lateness of the amendment and partly because they say that they would have sought further discovery and put on evidence in reply had these dates been in the form that they now appear in the proposed Further Amended Defence. There have been significant disputes, both while this matter has been docketed to me and while it was before Yates J, in relation to pleading and particulars, and the applicant points to that extended process of finalising pleadings when it comes to these dates being characterised as an “oversight”. The respondents say that the evidence was put on prior to the amendment and so there can be no capacity for additional evidence on the part of the applicant.

5    The second category of proposed amendment is two new defences which are headed in the respondents’ submissions as being “New Defences or Clarifications”. Paragraphs 55 and 55A of the proposed Further Amended Defence seek to rely on the contracts between what have been referred to as “dummy subscribers” to the applicant’s services, and a provision in some, or possibly all of the contracts between them and the applicant which limits the liability to the subscription fees paid in the year of the subscription period in which the first claim under this agreement arose. The limitation is expressed to be “despite any other provision of this Agreement” and to limit “each party’s aggregate liability, whether in contract, tort or otherwise, arising out of or related to this Agreement”.

6    The pleading which is proposed by the respondents is expressed as a point of law about whether that limitation of liability between the applicant and each of the three “dummy subscribers” also has the effect of limiting the liability of the respondents. The respondents say that the applicant was first notified of this proposed amendment on 10 April (before the trial commenced) and so had sufficient time to deal with any prejudice by further evidence, and that the amendment is important to the respondents because it would limit, if successful, the applicant’s damages on its tortious inducement case to something in the order of less than $100,000. In response the applicant points to what it says is a legal novelty of this matter and the fact that, in the short time available to it, it has identified at least one appellate court decision to the contrary (see Fightvision Pty Ltd v Onisforou [1999] NSWCA 323; 47 NSWLR 473 at [273] to [286]).

7    In the time available, I have only had the ability to look at that decision very briefly, but it does seem to me that there is some degree of legal complexity in what the respondents seek to do. The applicant says that, had this been pleaded previously, rather than being a non-admission of the subscription terms and the way in which the subscribers entered into them, they would have brought evidence in relation to what is now, in effect, a positive defence or a limitation of liability. They may also have sought to join the subscribers or their directors, and indeed Gingold Investments Proprietary Limited and one of its directors, Mr Colangelo, were named as prospective respondents to the original preliminary discovery proceedings. An application to join additional respondents to the proceeding was argued, and refused, in a decision of Yates J in BCI Media Pty Ltd v Corelogic Australia Pty Ltd [2022] FCA 1128 (see [107]).

8    The applicant also says it would have pleaded further facts and bases for the type of damages it claims, given that Fightvision indicates that damages for breach of contract and damages for interference with contractual relations may sound differently, and that it has not had the opportunity to do so. Finally, the applicant says it would have investigated a pleading of fraud, deceit, negligent misstatement, or misleading and deceptive conduct or repudiation of the subscriber agreements, and that it would need, in any event, to amend its reply significantly so as to raise repudiation arguments.

9    The last category is the proposed amendments to paragraphs 71 and 78. These paragraphs relate to an assignment deed between the applicant and BCI Asia Philippines, Inc in relation to an assignment of any intellectual property claims arising out of copyright owned by BCI Asia to the applicant. Paragraph 78 of the FASOC pleads actions not taken by RP Data to prevent infringement of copyright by Telus International and Artis Group. Those paragraphs were in the original Statement of Claim and have remained unaltered through to the FASOC.

10    The current defence in paragraph 71 is a non-admission of the allegation as to the assignment of copyright from BCI Asia to the applicant. The proposed amendment in the Further Amended Defence contests the validity of the assignment. It says that the infringement, if it occurred, occurred prior to 8 May 2020, and that any loss suffered was suffered by BCI Asia and not by the applicant. The respondents say, again, that the amendments are solely legal issues and that neither issue needed to be expressly pleaded. They submit that the proposed amendments to paragraph 78 arise out of a failure by the applicant to plead that any infringement occurred “in Australia”. They say that the proposed amendments are issues of law based on no new evidence and should be allowed, despite what the applicant says as to their prejudice.

11    The applicant says that it does suffer prejudice, should the applications be allowed. It says that the new defences would have resulted, in relation to the copyright claim and particularly in relation to the authorisation aspects, in further and additional discovery, and in relation to the validity of the assignment by BCI Asia, in joining BCI Asia as a joint applicant.

12    On 26 March 2026, the applicant served a notice to admit pursuant to r 22.01 of the Federal Court Rules 2011 (Cth) on the respondents. Within the time allowed, which is 14 days pursuant to r 22.02 of the Federal Court Rules, the respondents provided their notice of dispute, which indicated that they disputed “the truth of any fact in, or the authenticity of … The confirmatory IP Deed between BCI Media Group Pty Ltd and BCI Asia Philippines, Inc executed on 8 May 2020”, with a reference to where that Deed appears in the evidence. Mr Martin KC confirmed that his clients’ dispute of the authenticity of those documents did not amount to an allegation of fraud or a sham, but sought to take issue with the proper execution of that document and of its efficacy.

13    As I have said here and in previous reasons for judgment, the parties have been significantly engaged in ensuring that the other side pleads its case to its, or their, satisfaction. The respondents have consistently sought that the applicant specifically particularise its allegations in its FASOC. And the applicant has complained that the defence of the respondents has included what it refers to as “vague” and non-specific non-admissions. Each of the matters which are sought to be amended fall foul of the many expressions of a need for proper case management and consistency in the way in which amendments are allowed. I refer, in particular to the well-known paragraphs in Aon Risk Services Ltd v Australian National University [2009] HCA 27; 239 CLR 175, but also to what I said in [44] of my decision in BCI Media Group Pty Ltd v CoreLogic Australia Pty Ltd (Strikeout) [2025] FCA 1600, where I suggested that, “it seems to me each side should be getting on with that preparation [for the hearing] and not taking points which should have been taken … five months ago at the very latest”.

14    The applicant points to the respondents’ fair concession that the withdrawal of admissions arises out of an “oversight” (see the affidavit of Mr Cliff of 14 April 2026 at paragraph 11), and Mr Martin KC’s concession that the new defences, or “clarifications” as they are referred to, arose during preparation for these proceedings.

15    I was taken to a decision of the NSWCA in Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd & Ors [2008] NSWCA 243 (Allsop P, Beazley and Campbell JJA). At [160], Allsop P made a number of comments about “the responsibility of the parties, through their legal representatives, to exercise a degree of co-operation to express the issues for trial before and during the trial”. And at [161]: “The need for clarity, precision and openness in the conduct of litigation and the responsibility of parties [involved] and their legal representatives”, which flow from the overriding purpose of civil litigation and its oversight in this court. In this court, that purpose is of course found in s 37M of the Federal Court of Australia Act 1976 (Cth).

16    While I join with Allsop P in giving “due weight to the realities of life in running a long and complex trial and the vicissitudes” on how preparation close to trial focuses the mind (Baulderstone at [160]), this focus could, and should have, occurred much earlier. Even if the respondents are correct in contending that the evidence in relation to the admissions in paragraphs 43A and 43B was delivered prior to those amendments, it is difficult to say that nothing would have arisen in reply. In relation to the new claims, they are significant and involve, particularly as to the copyright claims, investigations into the way in which the assignment deed came about, the role of BCI Asia and whether that party, or other parties, might need to be joined to these proceedings.

17    I am particularly swayed by the evidence of Mr Williams in relation to the prejudice which may be suffered by the applicant, and his contention that the characterisation of the prejudice by the respondents as “minimal” cannot be sustained. The different preparation which the applicant would be entitled to undergo, should I allow those amendments, would, as set out in paragraph 99 of Mr Williams’ affidavit, be significant. The only way in which the applicant could meet the amendments would be for some part of this first tranche, or possibly all of it, to be vacated, imposing a significant impact which may not be able to be ameliorated by a costs order.

18    Accordingly, I refuse leave for amendment of the defence. To the extent that there are any costs which arise out of this application, they should be paid by the respondents.

Associate:

Dated:    1 May 2026

SCHEDULE OF PARTIES