Hubexo v CoreLogic - Leave to Amend Confined to Revised Annexures Only

Original Word Document (88.8 KB) Federal Court of Australia

Hubexo Australia Pty Ltd v CoreLogic Australia Pty Ltd (Amendment of Particulars) [2026] FCA 515

| File number(s): | NSD 285 of 2021 |

| Judgment of: | NEEDHAM J |

| Date of judgment: | 17 March 2026 |

| Date of publication of reasons: | 24 April 2026 |

| Catchwords: | PRACTICE AND PROCEDURE – where the applicant seeks leave to amend the particulars of loss and damage claimed in the pleadings – where the particulars refer to confidential annexures to an expert report which concern cessation dates for customers of the applicant – where those cessation dates are central to the applicant’s case – where the applicant sought leave to rely on original and revised confidential annexures as alternatives – where the revised versions provide different cessation dates in certain instances – where applicant later sought to use original and revised versions for liability and quantum respectively – leave not granted – not consistent with overarching purpose of civil practice and case management in ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) – the applicant is to rely on revised confidential annexures only for both liability and quantum

PRACTICE AND PROCEDURE – communications with the Court – where unilateral communication by way of further submissions was made – communications must only occur with the prior knowledge or consent of all other parties – Central Practice Note 1 provides guidance for communication with the Court |

| Legislation: | Federal Court of Australia Act 1976 (Cth) ss 37M, 37N

Federal Court Rules 2011 (Cth) r 16.53 |

| Cases cited: | Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175

BCI Media Group Pty Ltd v CoreLogic Australia Pty Ltd (Amendment and Strikeout) [2025] FCA 1030

BCI Media Group Pty Ltd v CoreLogic Australia Pty Ltd (No 2) [2023] FCA 664

Dare v Pulham [1982] HCA 70; 148 CLR 658

Tamaya Resources Ltd (in liq) v Deloitte Touche Tohmatsu [2015] FCA 1098

Central Practice Note: National Court Framework and Case Management (CPN-1) |

| Division: | General Division |

| Registry: | New South Wales |

| National Practice Area: | Commercial and Corporations |

| Sub-area: | Commercial Contracts, Banking, Finance and Insurance |

| Number of paragraphs: | 26 |

| Date of hearing: | 17 March 2026 |

| Counsel for the Applicant | Mr J Hennessy SC with Mr C McMeniman |

| Solicitor for the Applicant | Gilbert + Tobin |

| Counsel for the Respondents | Mr J Hastie with Mr J Smith |

| Solicitor for the Respondents | Mills Oakley |
ORDERS

| NSD 285 of 2021 |

| BETWEEN: | HUBEXO AUSTRALIA PTY LTD (ACN 098 928 959)

Applicant | |
| AND: | CORELOGIC AUSTRALIA PTY LTD (ACN 149 251 267)

First Respondent

RP DATA PTY LTD (ACN 087 759 171)

Second Respondent

CORDELL INFORMATION PTY LTD (ACN 159 137 274) (and another named in the Schedule)

Third Respondent | |

| order made by: | NEEDHAM J |
| DATE OF ORDER: | 17 March 2026 |
THE COURT ORDERS THAT:

1. In accordance with r 16.53 of the Federal Court Rules 2011 (Cth), the Applicant has leave to amend the particulars to the Further Amended Statement of Claim to rely upon Revised Confidential Annexures A, B and C appended to the report of Mr Ross of 19 December 2025 (Ross4) in place of the existing Confidential Annexures.

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

REASONS FOR JUDGMENT

Ex tempore revised from transcript

NEEDHAM J:

1 In this matter, a further amended statement of claim (FASOC) was accepted for filing on 15 September 2025, and defences to that FASOC were filed in October of that year. The pleading in the FASOC – inter alia, paragraphs 43E, 43F and 43G – has as particulars that Confidential Annexures A and C record the customers which, as a result of RP Data and Cordell’s conduct, were induced either to cease being customers of BCI Media Group or did not subscribe to BCI Media Group services. Confidential Annexure D is a further Confidential Annexure, which the applicant now seeks to rely upon as a further particular to the claim.

2 Confidential Annexures A, B and C are first referred to as particulars at paragraphs 43E and 43F and read:

Paragraph 43E:

It is to be inferred that by presenting the information in the Comparative Documents to customers and prospective customers, RP Data and Cordell induced customers and prospective customers of BCI Media Group to believe that the information in Cordell Connect was more comprehensive and accurate than the information in LeadManager, by reason of:

(a) the matters pleaded in paragraphs 43 to 43D and 50, and the particulars thereto;

(b) LeadManager and Cordell Connect are direct competitors, with no other significant competitors, such that customers and prospective customers of one are also customers or prospective customers of the other;

(c) customers as known to BCI Media Group in Confidential Annexure A ceased being customers of BCI Media Group (some of whom subscribed to Cordell Connect), customers as known to BCI Media Group in Confidential Annexure B were provideda discount by BCI Media Group and customers as known to BCI Media Group in Confidential Annexure C did not subscribe to LeadManager or subscribed to Cordell Connect [as pleaded and particularised in paragraphs 43F and 43G of the ASOC];

(d) the reduction in churn and increase in revenue growth of RP Data and Cordell since they accessed LeadManager in 2016; the decrease in revenue growth of BCI Media Group since RP Data and Cordell
accessed LeadManager in 2016.

Paragraph 43F:

It is to be inferred that the inducement pleaded in paragraph 43E above caused:

(a) customers of BCI Media Group to:

(i) cease subscribing to LeadManager;

(ii) require BCI Media Group to apply a discount to their subscription fee; and

(b) prospective customers of BCI Media Group to not subscribe to LeadManager,

by reason of:

(c) the matters pleaded in paragraphs 43 to 43E and 50, and the particulars thereto;

(d) LeadManager and Cordell Connect are direct competitors, with no other significant competitors, such that customers and prospective customers of one are also customers or prospective customers of the other;

(e) customers as known to BCI Media Group in Confidential Annexure A ceased being customers of BCI Media Group (some of whom subscribed to Cordell Connect), customers as known to BCI Media Group in Confidential Annexure B were provided a discount by BCI Media Group and customers as known to BCI Media Group in Confidential Annexure C did not subscribe to LeadManager or subscribed to Cordell Connect;

(f) the reduction in churn and increase in revenue growth of RP Data and Cordell since they accessed LeadManager in 2016; and

(g) the decrease in revenue growth of BCI Media Group since RP Data and Cordell accessed LeadManager in 2016.

(strikeouts and underlines removed)

3 The complicated pleading history of this matter is set out in a decision of Yates J in BCI Media Group Pty Ltd v CoreLogic Australia Pty Ltd (No 2) [2023] FCA 664, where his Honour said at [97]:

BCI should also provide particulars of the identities of the various actual customers of BCI, the actual customers of RP Data, the prospective customers of BCI, and the prospective customers of RP Data, known to it, who acted in the ways alleged.

4 Some two years later, Registrar Farrell directed the applicant to give further and better particulars to the respondents by providing to the best extent it could an amended version of Confidential Annexure A, which identifies the date on which each of the customers listed therein ceased to be a customer of the applicant, with corresponding amendments to Confidential Annexure C. In August 2025, in BCI Media Group Pty Ltd v CoreLogic Australia Pty Ltd (Amendment and Strikeout) [2025] FCA 1030, I gave leave to the applicant to replead the paragraphs, including those which became paragraphs 43E to 43G, and to provide in lieu of particulars set out to each paragraph in the body of the pleading, at a stage when evidence was not yet complete, a consolidated particulars document.

5 Those orders also allowed an amended consolidated particulars document when the evidence was complete, such amendments being limited to references to additional documents relied upon. The applicant’s evidence is now complete, having served two reports of its accounting expert, Mr Ross, known as Ross3 and Ross4, on 19 December 2025. In an earlier case management hearing this year on 27 February 2026, I granted the applicant leave to tender Ross3 and Ross4 as evidence in reply and gave the respondents leave to file any response if they took the view, as they do, that parts of those reports are properly evidence-in-chief.

6 I also ordered by 6 March 2026 that the applicant serve the respondents with an amended version of Confidential Annexures A, B and C to reflect the approach in Ross4. During that case management hearing, Mr Hastie, counsel for the respondents who appeared with Mr Smith, queried whether the revised Confidential Annexures allowed the applicant to put them in the alternative to the current versions. My reply was that if Mr Hennessy, senior counsel for the applicant, who appeared with Mr McMeniman, did seek to put them in the alternative, there would need to be some explicit reason why that is fair:

So … if you serve those by the 6th, and then that will give Mr Hastie time over the weekend to formulate a position. But it seems to me prima facie that there should be a list of dates, but if you feel you can manage the alternative, we will deal with it …

(slightly edited for clarity)

7 On 13 March 2026, the parties came before me once more for case management. The applicant sought leave to amend the particulars to further rely upon revised Confidential Annexures A, B and C. The respondents sought that that leave be restricted to revised Confidential Annexures A, B and C in place of the existing Confidential Annexures. Ross4 was tendered on this application, but it was not yet relied upon as an expert report in these proceedings. It was tendered merely for the basis of the application to become clear. This was necessary as the parties differed on the treatment of Confidential Annexures A, B and C.

8 Mr Hastie argued that the proposed reliance on both the original and the revised Confidential Annexures as alternatives was not feasible, as it changed the case which they had been prepared to meet for the last year. As the annexures are particulars to the pleading, they required leave to be amended, and while leave had been granted for the Ross4 report to be relied upon, leave was still required to seek to rely on both the original and revised versions. Mr Hennessy argued that the Ross4 report went to quantum only and in short that it was not unknown for parties to argue alternative pathways to their ultimate destination, in particular when it came to formulation of damages.

9 This much is true. Mr Hennessy took me carefully through the way in which Mr Ross dealt with what is referred to as the cohorts and the original and the new accounting data. He pointed out that the new accounting data was a set of information derived from Reckon and Xero, two accounting programs to which Mr Ashby had referred in his report in reply, which changed the approach insofar as cessation dates were used for calculation of loss of subscription revenue. He took the view that Ross4 was properly in reply and submitted that insofar as the cessation dates for customers differed from those particularised in the original Confidential Annexures, it was relevant only to quantum, and that if the report were to be relied upon, no prejudice would be suffered by the respondents, given that Mr Ashby and his firm were even now working on a response. Mr Hennessy said that the suggested alterations in Ross4 were potential alternatives to the original Confidential Annexures.

10 Having read the material, including Mr Ross’ fourth report, the Registrar’s reasons on particulars of 14 March 2025, and having heard submissions both today and on 13 March 2026, the question of the cessation date is more than simply a question of the basis for a calculation of damages. The cessation dates are set out in the original Confidential Annexures, and the point raised by Mr Hastie is that the applicant seeks to draw an inference from those dates as to the causation of the behaviour of the listed customers. Mr Hastie said that of the particularised list of customers, 88 per cent had altered cessation dates in the revised particulars.

11 The cessation date of customers of BCI Media Group, as it was then known, is central to the applicant’s case, as it contends that by the respondents’ actions, they effectively lured away customers of BCI Media Group and caused them to cease being customers of the applicant or to become customers of the respondent or to deter them from signing up with BCI Media Group at all. It is a pleaded fact that inferences arise from the cessation date. The respondents have been working on the basis that the cessation dates were those shown in Confidential Annexures A and C since March 2025. The revised annexures provide dates which may be one year earlier, a function in some cases of whether it is the calendar or financial year being relied upon, or later in some cases because of subscriptions being paid up-front, or indeed in some cases, for unknown reasons, a few years earlier or later.

12 While on one view the Confidential Annexures can be seen as reflecting the expert reports and not the evidence and, as argued forcefully by Mr Hennessy, only being related to quantum, I cannot see that that is the case. Mr Ross talks of required amendments and uses words such as “superseding” and “correcting”, and it appears that his view is that the revised figures reflect the position as demonstrated by fuller and more relevant data from Reckon and Xero. In part 3 of Ross4, he discusses why it is necessary to update the calculation of BCI’s lost profits “that I provided in Ross2”, partly because at 3.1.2(I)(b):

I have been provided with further instructions relating to the determination of the customers to be included in Confidential Annexures A and C. These instructions require me to review the BCI Customer Accounting Data and consider if Confidential Annexures A and C require amendment based on that data.

13 At 2.4.12, he says:

My opinion in this section regarding BCI’s (past) Lost Profit from the Revised Confidential Annexure A Customers supersedes my opinions in Sections 2.4 and 2.5 of Ross2.

14 In part 7 of Ross4, Mr Ross refers to his opinion as to a revised potential customers list superseding his previous opinions and says at 7.2.3(IV):

… I identified some Confidential Annexure C Customers that needed to be excluded from my calculations.

15 Indeed, the further confidential particulars are referred to as “revised Confidential Annexures” in Ross4.

16 I had reached a point on 16 March that my reasons were ready to be delivered ex tempore today at 9.45. On 16 March , the solicitors for the applicants caused an email to be sent to me seeking to provide the terms of a different order from that originally sought after my associate had indicated that I was ready to give these reasons this morning. That order reads:

In accordance with r 16.53 of the Federal Court Rules 2011 (Cth), the Applicant has leave to amend the particulars of the loss and damage claimed in the Further Amended Statement of Claim to further rely upon Revised Confidential Annexures A, B and C and to refer to Mr Ross’ fourth report, dated 19 December 2025 in Confidential Annexure D.

17 I indicated to the parties that I would hear them. Mr Hennessy sought to support the new order by indicating that the original Confidential Annexures A, B and C would remain as currently relied upon in relation to liability, but the revised Confidential Annexures and amendments to Confidential Annexure D, which was not previously in contest, would be relied upon in relation to damages only. He submitted that the respondents had not raised any issues with any excessive burden arising from this approach and that if the revised Confidential Annexures were strictly related to quantum, that was part of a separate process after the determination of liability.

18 In other words, the original and revised Confidential Annexures were no longer sought to be alternatives but were sought to be used for different parts of the case. In response, Mr Hastie and Mr Smith said that the alternative order should not be allowed on the following grounds. Firstly, this matter was brought to the Court’s attention too late. This was raised originally in February, and the hearings start on 13 April, less than a month away. Second, the liability/quantum argument is a false distinction which gives rise to an untenable incoherence and inconsistency in the applicant’s case if it seeks to rely on different dates for liability and quantum of loss. Third, contrary to what the applicant submitted, the dates in the original and the revised Confidential Annexures were not just a cohort difference allocating customers to different financial or calendar years. There were radically different dates given without significant explanation for some of the dates.

19 Mr Smith took me to those portions of the FASOC and the consolidated particulars, which demonstrated that the Confidential Annexures in their original form with cessation dates were relied upon both in relation to liability and damages and made submissions as to the way in which I should have regard to those matters. In reply, Mr Hennessy pointed me to the Registrar’s decision, referring to a pleading argument about an inferential case. He said that there was no differentiation in that decision between liability and quantum and that the differences in accounting treatment of the various customers would only arise on quantum. Neither side addressed me on the inclusion of Confidential Annexure D in any order.

20 I have reached the conclusion that I should not allow the amended order. The respondents are prepared to meet either the original or the revised Confidential Annexures as the basis of the applicant’s case. I am not persuaded that allowing the applicant to amend to rely on revised confidential particulars in one part of the case only is in accordance with the overarching purpose of civil practice and case management as set out in ss 37M and 37N of the Federal Court of Australia Act 197 6 (Cth), particularly when managing the quick, inexpensive and efficient resolution of disputes according to law.

21 I repeat what I said in Amendment and Strikeout, in the section ‘Loss of Value amendment’ from [67] onwards, in that an amendment to pleadings so that the particulars align with the evidence does not extend to the accommodation of new cases, particularly so close to the trial (see in particular at [67] and [77] and the cases there referred to: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175, Tamaya Resources Ltd (in l iq) v Deloitte Touche Tohmatsu [2015] FCA 1098, and Dare v Pulham [1982] HCA 70; 148 CLR 658. While I heard submissions on the new proposed order, the email raising it was a unilateral communication by the applicant by way of further submissions when no leave to do so had been granted.

22 Clause 15.2 of the Court’s Central Practice Note: National Court Framework and Case Management (CPN-1) provides:

In their communication with chambers staff of a judge or registrar, unless in the nature of an ex parte application, parties should only communicate with chambers where it is appropriate to do so, and such communications must always be open and uncontroversial. Communications with chambers staff of a judge or registrar must only occur with the prior knowledge or consent of all other parties to the proceeding where any issue of controversy exists or is likely to arise in respect of the issue being addressed. In these circumstances, this is not satisfied by the mere copying in of others to the communication, which may be adequate in entirely uncontroversial communications.

23 I acknowledge that Mr Williams for the applicant did seek the consent of the respondents prior to sending the email. However, a more appropriate way of approaching the matter would have been to have exercised the previously granted liberty to apply with an indication that further submissions on the matter of the text of the orders were sought. That way, each party would be on notice, and the respondents would not have been placed in a position where they had to respond to orders contrary to those sought or different from those sought during argument when the matter was listed for judgment.

24 Given the interrelationship of the inferred basis of the conduct leading to the inclusion of the names on Confidential Annexures A and C, it is not appropriate or fair for the respondents for the applicants to run an alternative case. They have an extensive expert’s report dealing with the revision of the Confidential Annexures and setting out that methodology, and the respondents are now seeking to reply to that report. The experts will go into a conclave with the Registrar and provide a joint report. The damages should be assessed, if the applicants are successful on liability, on the basis which is identified by the pleadings to which the Confidential Annexures are particulars.

25 Accordingly, I will not grant leave to the applicant to rely on the various alternatives for the purpose only of damages and will make the order sought by the respondent. That order is:

In accordance with r 16.53 of the Federal Court Rules 2011 (Cth), the Applicant has leave to amend the particulars to the Further Amended Statement of Claim to rely upon Revised Confidential Annexures A, B and C appended to the report of Mr Ross of 19 December 2025 (Ross4) in place of the existing Confidential Annexures.

26 In relation to Confidential Annexure D, that document was specifically noted to be provided subject to the finalisation of expert evidence. My preliminary view is that it can be amended to deal with Ross4 but I will hear from the respondents in relation to that. And while the applicant has been successful to some extent, it has not been totally successful, and I will hear the parties as to costs or alternatively, if asked, will reserve costs.

| I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Needham. |
Associate:

Dated: 24 April 2026

SCHEDULE OF PARTIES

| | NSD 285 of 2021 |
| Respondents | |
| Fourth Respondent: | CORELOGIC INC |