Queensland Supreme Court reinforces the need to plead all causes of action early

The Supreme Court of Queensland's judgement in Tycho Pty Ltd v Trustworthy Nominees Pty Ltd [2026] QSC 89 serves as a helpful reminder of the considerations the court will take into account in an application to amend a pleading to add a new cause of action after the expiry of the limitation date for that new cause of action.

Whilst the decision deals with a third party claim in a proceeding, the principles apply to primary claims and counterclaims, and the decision reinforces the fundamental importance of developing a case theory that identifies all causes of action available to a party early on in the life of a proceeding.

Background to the case

In May 2018, Trustworthy Nominees Pty Ltd (Trustworthy), brought third party proceedings against Michael Ajensztat and Myer Jeruzalski trading as Ajzensztat Jeruzalski & Co for solicitor's professional negligence. The third party proceedings were commenced promptly after the primary proceeding against Trustworthy was commenced in February 2018.

In an application filed on 20 March 2026, approximately eight years later, pursuant to rule 376(4) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), Trustworthy applied to the court to amend its third party claim to introduce a new cause of action under s61 of the Australia Consumer Law (ACL) dealing with guarantees as to fitness for purpose of a service, after the expiry of the limitation period applicable to such cause of action.

Rule 376(4) of the UCPR applies if a relevant period of limitation has expired. It provides:

*The court may give leave to make an amendment to include a new cause of action only if -

• (a) the court considers it appropriate; and
• (b) the new cause of action arises out of the same facts or substantially the same facts as a cause of action for which relief has already been claimed in the proceeding by the party applying for leave to make the amendment.*

It was common ground that the limitation period for the cause of action that Trustworthy sought to include had expired.

In support of its application, Trustworthy submitted that:

1. the proposed claim under s61 of the ACL had a "real utility" to Trustworthy, as a claim under that section is not apportionable, whereas the existing causes of action advanced by Trustworthy against Ajzensztat Jeruzalski & Co in negligence and under s60 of the ACL (guarantee as to do care and skill) were apportionable. As such, Trustworthy's potential recovery against Ajzensztat Jeruzalski & Co under a s61 ACL claim was higher than its potential recovery under a negligence claim or a s60 ACL claim; and
2. the application to plead the new cause of action ought to be allowed as there was no demonstrable prejudice to the Ajzensztat Jeruzalski & Co, despite Trustworthy not being able to offer any (or any good) explanation for its delay in amending its third party claim.

Decision

The court (Freeburn J) concluded that it was not appropriate to allow Trustworthy to amend its third party claim. In reaching his decision, his Honour cited the following considerations:

1. the amendments proposed by Trustworthy were substantial, and called into inquiry events which occurred in 2017, some nine years ago. Whether recognisable or not, the passage of time was a risk to the quality of justice;
2. the proposed amendments had come extremely late in the proceeding. There had been previous amendments of the pleadings, all evidence-in-chief had been filed, a trial plan submitted, and a trial date set down;
3. there was no proper explanation of the lateness of the proposed amendments. Trustworthy has been represented by solicitors and counsel for the entire history of the proceeding and the issue of apportionment has been alive since 2018. The proposed new cause of action under s61 ACL was a new idea arising from "close scrutiny" of the third party pleading and disclosure by Trustworthy's legal team - which they apparently did not do at an earlier time;
4. the proposed amendments involved a potentially complex factual inquiry into dealings which occurred in 2017, and there is a reasonable prospect that the memories of witnesses may be adversely affected with the passage of time;
5. permitting the proposed amendment placed the trial dates at risk, as evidence and disclosure would likely have to be revisited. The case was largely ready for trial and the parties had filed their evidence and made forensic decisions based on the existing pleadings; and
6. the interests and quality of justice may be impacted by allowing the proposed amendment.

As the application failed on the first leg of UCPR rule 376(4), his Honour held it was not necessary to consider whether a new cause of action arose out of the same or substantially the same facts.

Takeaways

Whilst this decision arises in the context of a third party claim in a proceeding arising in connection with alleged professional negligence against solicitors, the considerations outlined within his Honour's judgement helpfully illustrate the issues a Queensland court will consider in deciding whether it is appropriate to grant a party leave to plead a new cause of action after the limitation period for that cause of action has expired.

The key takeaways are:

• amendments to pleadings after the expiry of a limitation period will face close scrutiny and are not lightly permitted
• delay in bringing amendments, particularly where unexplained, can be fatal -especially where parties have long been legally represented and the issues the subject of the amendments were apparent, or ought to have been apparent, earlier
• the closer a matter is to trial, and by corollary the matter's readiness for trial, the less likely it is the court will allow a new cause of action to be introduced
• the interests and quality of justice, including the risk to witness memory and disruption to trial preparation, are central considerations
• strategic forensic advantages, such as avoiding proportionate liability and the lack of any discernible prejudice to another party, will not justify late amendments absent compelling justification.

The decision underscores the importance of developing a comprehensive case theory that identifies all available causes of action at an early stage and pleading these at that time.