Out with an old pleading does not always mean in with the new

Quilkey & another v Tractile Combined Pty Ltd & others [2022] QDC 185

Michael Creedon | Hazal Gacka | Zariyah Ahmed

Key takeout

Parties cannot renege on prior admissions made in pleadings simply by filing a ‘new’ pleading.  In the responsive pleading regime in the Uniform Civil Procedure Rules 1999 (UCPR) an admission signals to the other party that a particular issue will not be in dispute.  Therefore in order to withdraw an admission, a party must seek the court’s permission.


The parties entered into a building contract in which Tractile Combined Pty Ltd and its associated entities (Tractile) were to supply and install a solar roofing system on Quilkey’s home using a specific Tractile branded roof tile and associated equipment.  In April 2021, Quilkey commenced proceedings against Tractile alleging:

  1. the building work was done without the relevant building licence under the Queensland Building and Construction Commission Act 1991 (Qld); and
  2. the roof tile was in fact unlawful and therefore could not be certified for use in Queensland.

In May 2021, Tractile and its co-defendants filed a defence and counterclaim seeking to recover money for works under the contract.  The May 2021 defence contained a number of express admissions of facts pleaded in the statement of claim.  It also contained a number of inadequate denials, which under rule 166(5) of the UCPR are also taken to be admissions.

On 28 March 2022, Quilkey filed an amended statement of claim.  On 1 July 2022, Tractile filed an amended defence and described it as the ‘defence of the first to fourth defendants’ as opposed to an ‘amended defence’.  The new defence withdrew admissions made in the May 2021 defence without seeking permission from the court to do so.  Quilkey applied to the court for declarations that certain allegations in the statement of claim had been admitted or deemed admitted.

Tractile argued that filing a new defence excluded any admission made in the earlier defence and as such, leave to withdraw the admissions was not required.  Tractile argued the July 2022 defence was not an amended defence, but rather a new defence responsive to Quilkey’s amended statement of claim.  Tractile contended that rule 385(1) of the UCPR gives a defendant the option to respond to an amended statement of claim with a ‘new’ defence or an ‘amended’ defence.


The court concluded that a number of the admissions in the May 2021 defence remained and were binding on Tractile.  Judge Porter determined that creating a ‘new’ defence, instead of amending an existing defence, does not allow a party to renege on previous admissions of unchanged allegations, thereby avoiding the effect of rule 166 of the UCPR.  Accordingly Tractile’s interpretation  of rule 385 of the UCPR was wrong.

There were three key reasons why Tractile could not renege on its previous admissions:

  • Rule 385(1) of the UCPR does not give a choice to a defendant.  The rule provides that if a party amends a pleading, the opposite party may plead to the amended pleading or amend its existing pleading.  The words ‘may plead to the amendment or’ concerns the scenario where before the amendment, no responsive pleading had been filed, but the amendment subsequently calls for a responsive pleading.  This is confirmed by rule 382.It provides that all amendments must be made to the existing document by incorporating and distinguishing the amendment.  This rule does not contemplate a right to respond to an amended pleading by filing a ‘new’ pleading.
  • Tractile’s argument was inconsistent with the general philosophy of the UCPR..  The pleading rules in the UCPR allow for early and comprehensive disclosure of cases, and the clear articulation in a defence as to what is and is not going to be an issue in the case.  Therefore, making an admission in a responsive pleading informs the other side that a particular allegation is not in dispute.  Tractile’s proposition for the construction of rule 385(1), to allow a defendant to avoid express and deemed admissions from previous pleadings by drafting a ‘new’ defence, was contrary to the philosophy and purpose of the UCPR.
  • Most importantly, Tractile’s argument was inconsistent with the explicit rules regulating the withdrawal of admissions in the UCPR.  Rule 188 provides that the withdrawal of an admission made in a pleading may only be done with the court’s leave.  A defendant filing a ‘new’ pleading and reneging on past admissions, without the court’s leave, is inconsistent with this rule.

Glossary Term