Agius v Queensland Building and Construction Commission and Anor [2021] QCAT 144

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Agius v Queensland Building and Construction Commission and Anor [2021] QCAT 144 PARTIES: MARK ELLIOT AGIUS (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION GEDOUN CONSTRUCTIONS PTY LTD (respondents) APPLICATION NO/S: GAR140-20 MATTER TYPE: General administrative review matters DELIVERED ON: 11 May 2021 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Paratz AM ORDERS: Gedoun Constructions Pty Ltd atf Gedoun Development Unit Trust is removed as a Respondent in the proceeding. Gedoun Constructions Pty Ltd is joined as a Respondent in the proceeding. The preliminary issue as to whether the work was ‘building work’ in whole or in part, is to now proceed to be determined on the papers by a Member of the tribunal without an oral hearing, on the submissions filed, as directed by Direction 8 given on 8 February 2021. The matter is to be set for a Directions Hearing at 11.30am on 3 June 2021 together with GAR193-20, GAR194-20, GAR373-20 and GAR392-20. CATCHWORDS: PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JOINDER OF CAUSES OF ACTION AND OF PARTIES - PARTIES - GENERALLY - where an application to join a builder as a respondent was made – where a company as trustee was joined as a respondent – where the trust did not hold a Queensland builder’s licence – whether the trust should be removed as a respondent – whether the company holding a Queensland builder’s licence should be joined as a respondent - whether -- 1 of 7 -- 2 a respondent can be effectively substituted under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(1), s 42(1)(a), s 42(2)(b), s 42(3) Uniform Civil Procedure Rules 1999 (Qld) r 69 Ward & Anor v Williams [2019] QCAT 136 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondents: QBCC: Norton Rose Fulbright Gedoun Constructions Pty Ltd: Connolly Suthers, Lawyers This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION [1] Gedoun Constructions Pty Ltd (‘the builder’) contracted to build a residential home for Mark Elliot Agius (‘the owner’) in Townsville, Queensland. [2] The owner filed an Application to review a decision in the Tribunal on 28 April 2020, in relation to a decision of the Queensland Building and Construction Commission (‘the QBCC’) made on 30 March 2020. The decision was to not issue a direction to rectify or remedy to the builder for complaint items 1 and 2 of the complaint form dated 24 December 2019. [3] The QBCC filed an application for miscellaneous matters on 21 October 2020 to strike out complaint 1A and complaint 2, and for the tribunal to determine as a preliminary matter whether or not complaints 1A and 2 are ‘building work’. [4] The owner filed an application for miscellaneous matters on 22 October 2020 seeking to ‘refute’ the application of the QBCC filed on 21 October 2020. [5] The QBCC filed an application for miscellaneous matters on 2 November 2020 to join ‘Gedoun Constructions Pty Ltd as Trustee for the Gedoun Development Unit Trust’ (‘the Trust’) as a party to the proceeding. [6] I gave directions at a Directions Hearing held on 8 February 2021 for Gedoun Constructions Pty Ltd as Trustee for the Gedoun Development Unit Trust to be joined as a respondent in the proceeding. [7] Mark Elliot Agius filed an Application for miscellaneous matters on 2 March 2021, to remove Gedoun Constructions Pty Ltd atf Gedoun Development Unit Trust as a Respondent in the proceeding. [8] The owner has filed Applications for Miscellaneous Matters on 2 March 2021 (‘the application to dismiss’) applying to dismiss Applications to review a decision filed by the builder in Tribunal files GAR193–20, GAR194-20 and GAR373–20. -- 2 of 7 -- 3 [9] The owner has filed submissions in his applications to dismiss the Applications to review in GAR193–20, GAR194-20 and GAR373–20, and in this proceeding GAR140-20, relating to the identity of the builder. Those submissions are similar in many respects. [10] In the circumstances, I consider it to be in the interests of proceeding these matters as expeditiously as possible, to decide this application as to joinder at the same time as the applications in GAR193–20, GAR194-20 and GAR373–20, and to refer to submissions in each of those matters as appropriate. [11] This is the decision in relation to this Application filed by the owner on 2 March 2021 as to the joinder of parties. Submissions of the owner [12] The owner filed submissions attached as Appendix 1 to his application as to joinder.1 [13] The fundamental argument of the owner is that the named applicant in this matter ‘Gedoun Constructions Pty Ltd atf Gedoun Development Unit Trust’, which has Australian Business Number 52 284 873 581, does not hold a QBCC licence as a builder, and that it therefore does not have standing to be a party to the application to review. [14] The owner submits that the QBCC has issued directions to ‘Gedoun Constructions Pty Ltd’, which has Australian Business Number 78 011 074 829, and holds a QBCC Licence 23628. [15] The owner submits as follows: 7. The applicant, that is ‘Gedoun Constructions Pty Ltd atf Gedoun Development Unit Trust’ listing the Australian Business Number 52 284 873 581 does not have locus standi to review matters of an unrelated entity, nor be recognised as a party in any of the listed General Administrative Reviews currently afoot in the Queensland Civil and Administrative Tribunal. 8. The QBCC licensee numbered 23628 has not made a legitimate external review request. ……. 12. The second respondent respectfully submits the applicant does not have forum, nor locus standi to request a review and that the tribunal does not have jurisdiction to carry out the review with an unlicensed entity to which the decision was not handed down on. 13. The applications of the applicant are entirely an abuse of process which the second respondent requests immediately the tribunal dismiss intended to frustrate the party aggrieved and stall justified and legitimate disciplinary actions by the QBCC, as well as stall Home Warranty Scheme rectification to the relevant property which is unsafe for occupation and extensively non-compliant to the Building Code of Australia. 1 Filed on 24 February 2021 in the Magistrates Court Registry at Townsville, and received by the Tribunal Registry at Brisbane on 2 March 2021. -- 3 of 7 -- 4 ….. 15. The tribunal is requested to resist any attempts to ‘swap’ the applicant out. Submissions of the Trust [16] No directions have been given in relation to submissions as to this Application as to joinder, but the builder filed submissions in GAR194-20 in Response to an application to dismiss in that matter, and identical Applications to dismiss in GAR193-20 and GAR373-20. [17] The Trust in GAR194-20 submitted that the company is the same legal entity when it conducts business as a trustee and when it conducts business in its own right, and that the owner has not demonstrated the relevance of its obligations as a trustee to its standing in the proceeding or how it should describe itself:2 3. To obtain the relief sought Mr Agius would be required to demonstrate that the company Gedoun Constructions Pty Ltd, when it conducts business as a trustee (and refers to itself in documents, for example the contract, in that capacity), is a separate legal entity to the same company when it conducts business in its own right (and does not refer to itself as a trustee). …… 5. It is neither unusual nor unlawful for a QBCC licensee, or any other business for that matter, to trade using a trust structure. Mr Agius has failed to engage to any extent with the issue of how the company’s obligation to account to beneficiaries as a trustee has any relevance to its capacity to hold a QBCC licence or its standing to bring proceeding (sic), and how it should describe itself in those proceeding (sic). The matters listed in paragraph 146(a) to (h) of his submissions are baseless conjecture. Submissions of the QBCC [18] No directions have been given in relation to submissions as to this application as to joinder, but the QBCC filed submissions in response to the applications to dismiss in GAR193-20, GAR194-20 and GAR373–20. [19] The QBCC submitted that the review applications in GAR 193–20 and GAR 194–20 were competent and should continue.3 [20] The QBCC submitted that as the review application was commenced by the trustee, that the company, Gedoun Constructions Pty Ltd, is ‘present’ for the proceeding, and therefore present for the tribunal’s determination.4 [21] In the alternative, the QBCC submitted that if the tribunal finds that the review application should have been commenced by Gedoun Constructions Pty Ltd, then this reason is not sufficient to enliven the tribunal’s power to dismiss the review 2 Outline of submissions in GAR194-20 (filed on behalf of the applicant) 8 March 2021. 3 QBCC submissions in GAR194-20 in response to application to dismiss proceeding 8 March 2021, [1.2]. 4 Ibid [5.13]. -- 4 of 7 -- 5 application,5 and that directions could be made as to the identity of the applicant in that situation:6 5.15 In the event that the tribunal finds that the review application should have been commenced by Gedoun Constructions Pty Ltd, the tribunal can make a direction that the applicant to the proceeding be Gedoun Constructions Pty Ltd in accordance with s62(1) of the QCAT Act. Such a direction would ensure the speedy and fair conduct of the proceeding and would not cause any delay to the proceeding. The owner’s submissions in reply [22] In his submissions in reply in GAR193-20,7 the owner noted that the Directions to Rectify were issued to Gedoun Constructions Pty Ltd with ABN 78 011 074 829 holding QBCC builder’s licence 23628, which is the entity known to him as the entity who constructed his home. [23] The owner stated in his response that he believes that this matter has been brought to delay rectification of his home:8 13. I verily believe that the QCAT review case is without merit and has been requested entirely for the purposes of keeping procedurally fair directions to rectify off the builders licence was (sic) long as possible whilst other BDL QCAT civil cases proceed. This is an apparent abuse of process intended to frustrate and stall the necessary rectification of dangerous defective works at my home. Discussion [24] In its submissions in support of the application to join a party, the QBCC referred to Gedoun Constructions Pty Ltd as trustee for the Gedoun Development Unit Trust as ‘Gedoun’, and referred to work being completed by ‘Gedoun’ at the property.9 [25] The identity of the builder is shown by the principal documents: (a) The owner has attached an extract of the residential building contract10 which shows the ‘Contractor’ as ‘Gedoun Constructions Pty Ltd’; and the QBCC licence number as 23628, which is the licence number of ‘Gedoun Constructions Pty Ltd’. (b) The various Directions to Rectify and scope of works were issued to ‘Gedoun Constructions Pty Ltd’. [26] The Respondent joined to the Application to Review should clearly have been the entity named as the affected party in the decision, which was Gedoun Constructions Pty Ltd. [27] In order to regularise the proceeding, it is appropriate to substitute Gedoun Constructions Pty Ltd as the respondent on the Application to review a decision. 5 Ibid [5.14]. 6 Ibid [5.15]. 7 Response in reply - GAR 193-20 - External Review, filed in the Magistrates Court Registry at Townsville on 18 March 2021, and the Tribunal Registry at Brisbane on 23 March 2021. 8 Ibid [13]. 9 Annexure A to the Application for miscellaneous matters filed on 2 November 2020 by the QBCC. 10 Appendix B to application to dismiss, p1. -- 5 of 7 -- 6 [28] The owner opposes the identity of the Respondent being ‘swapped out’. He suggests that the naming of the trust is part of a deliberate manipulation by the builder to avoid the building company being shown on the public register as being directed to rectify defects, and that the proceedings are an abuse of process. [29] Gedoun Constructions Pty Ltd is entitled to be joined as a respondent in this proceeding, as an affected party. [30] The tribunal has discretion as to the procedure for a proceeding.11 [31] The tribunal may make an order joining a person as a party to a proceeding if it considers that the person should be bound by, or have the benefit of a decision of the tribunal in the proceeding;12 and may order that a party be removed from a proceeding if it considers that the party is not a proper or necessary party to the proceeding, whether or not the party was one originally.13 Such an order may be made by the tribunal on its own initiative.14 [32] Whilst the owner alleges that the joining of the Trust was an abuse of process, and designed to delay rectification of defects to his home, it is not established that this is the intent or effect of the original joinder application. [33] The Trust’s submissions in the related matters indicate that it considers that the status of the company when it acts in its own right, or as trustee, is not as a separate legal entity. There is no suggestion that the company in its own right would be prejudiced by being named as a respondent in the proceeding. [34] The identity of the respondent can be simply remedied by the tribunal making orders effectively substituting the company ‘Gedoun Constructions Pty Ltd’ as the respondent. [35] The tribunal has noted that it does not have express power to substitute an applicant,15 which is in contrast to the Uniform Civil Procedure Rules16 which expressly refer to substitution (although no specific process is identified). The tribunal may however order the removal or joinder of a party. The effect of substitution can be achieved by removing the existing respondent and joining the builder as a respondent. [36] I do not consider that effective substitution of the respondent will cause any delay to the proceeding, but will remove the question of identity as an issue, and enable the proceeding to concentrate on the merits of the review itself. [37] I order that Gedoun Constructions Pty Ltd atf Gedoun Development Unit Trust be removed as the respondent in this proceeding, on the tribunal’s initiative; and that Gedoun Constructions Pty Ltd be joined as a Respondent in the proceeding, on the tribunal’s initiative. [38] The matter should now proceed, and I direct that the matter be set for a Directions Hearing on 3 June 2021, together with GAR193-20, GAR194-20, GAR373-20 and GAR392-20. 11 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(1). 12 Ibid s 42(1)(a). 13 Ibid s 42(2)(b). 14 Ibid s 42(3). 15 Ward & Anor v Williams [2019] QCAT 136, [6]. 16 Uniform Civil Procedure Rules 1999 (Qld) r 69. -- 6 of 7 -- 7 [39] There is an outstanding preliminary issue in this matter as to whether the work was ‘building work’ in whole or in part. Directions were given by me on 8 February 2021 in relation to the filing of submissions by the parties. [40] Submissions were filed by the owner in relation to the preliminary question on 22 February 2021. [41] Submissions were filed by the QBCC in relation to the preliminary question on 8 March 2021. [42] The tribunal was advised by solicitors on 8 March 2021 that ‘we act for Gedoun Constructions’ and that Gedoun Constructions had decided not to file submissions in respect of the preliminary issue and would abide by the tribunal’s decision on that matter.17 [43] Submissions in reply were filed by the owner in relation to the preliminary question on 15 March 2021. [44] For clarity, I will direct that the preliminary issue as to whether the work was ‘building work’ in whole or in part, is to now proceed to be determined on the papers by a Member of the tribunal without an oral hearing, on the submissions filed, as directed by Direction 8 given on 8 February 2021. [45] The orders and directions of the tribunal are as follows: Gedoun Constructions Pty Ltd atf Gedoun Development Unit Trust is removed as a Respondent in the proceeding. Gedoun Constructions Pty Ltd is joined as a Respondent in the proceeding. The preliminary issue as to whether the work was ‘building work’ in whole or in part is to now proceed to be determined on the papers by a Member of the tribunal without an oral hearing, on the submissions filed, as directed by Direction 8 given on 8 February 2021. The matter is to be set for a Directions Hearing at 11.30am on 3 June 2021 together with GAR193-20, GAR194-20, GAR373-20 and GAR392-20. 17 Email from Connolly Suthers lawyers to the Tribunal and Mr Agius on 8 March 2021 in GAR140-20. -- 7 of 7 --