Body Corporate for Nursery Place v Queensland Building and Construction Commission [2018] QCAT 18

CITATION: Body Corporate for Nursery Place CTS 36619 v Queensland Building and Construction Commission [2018] QCAT 18 PARTIES: Body Corporate for Nursery Place CTS 36619 (Applicant) v Queensland Building and Construction Commission (Respondent) APPLICATION NUMBER: GAR210-15 MATTER TYPE: General administrative review matters HEARING DATE: 14 July 2017 HEARD AT: Brisbane DECISION OF: Member Bridgman DELIVERED ON: 31 January 2018 DELIVERED AT: Brisbane ORDERS MADE: The application to join John Taouk as a second respondent in the proceeding is dismissed. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JOINDER OF CAUSES OF ACTION AND OF PARTIES – PARTIES – OTHER MATTERS – application for joinder – whether the party’s interests are affected – whether it is desirable for a party to be joined Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 42 APPEARANCES AND REPRESENTATION: APPLICANT: Mr J. Haberecht RESPONDENT: Mr C. Tanzer of Gadens Lawyers PROPOSED SECOND RESPONDENT: Mr N Ferratt, Counsel, instructed by Romans & Romans Lawyers -- 1 of 4 -- 2 REASONS FOR DECISION [1] This is a decision on an application to join Mr John (or Jon) Taouk as a second respondent in an administrative review application brought by the Body Corporate for Nursery Place CTS 36619 (“Nursery Place”) against a decision of the Queensland Building and Construction Commission (“QBCC”) rejecting Nursery Place’s insurance claim. [2] The matter has a long history, some of which is usefully set out in Taouk v Queensland Building Services Authority,1 (the “2013 Decision”), a matter that determined that Mr Taouk was responsible for some, but not all, rectification ordered by QBCC in those earlier proceedings. Mr Taouk was the construction manager for construction of a 16 unit complex at Holland Park but abruptly terminated his employment before completion. The decision determined that it was not fair to hold Mr Toauk responsible for rectification of certain matters when that responsibility should lie with others. [3] QBCC subsequently ordered rectification of 16 items by another builder. The rectification was not undertaken. Ultimately QBCC made the decision that the 16 items were not covered by the relevant policy of insurance. [4] The present substantive application is to review QBCC’s decision of 27 July 2015 rejecting Nursery Place’s claim for rectification of 16 items. The application, dated 28 August 2015, sought an order for rectification of all 16 items under the QBCC Home Warranty Scheme. [5] QBCC’s joinder application was made on 8 June 2017. [6] The QCAT Act in s. 42 provides a wide discretion for the joining of parties to a proceeding. A person may be joined if the person should be bound by or have the benefit of a decision by the Tribunal in a proceeding; if the person’s interests may be affected by the proceeding; or if it is desirable that the person be joined for another reason. [7] QBCC argued that should Nursery Place succeed in its application, the claim would progress under Mr Taouk’s insurance and he may then face recovery proceedings under s. 71 of the Queensland Building and Construction Commission Act 1991 (“QBCC Act”). It appears that one consideration for QBCC is that joinder would bind Mr Taouk in later proceedings should they arise. [8] Mr Taouk, opposed the joinder application. He argues that his responsibility for the work in question has already been decided in the 2013 Decision, and joinder will not affect his entitlement to review any later decision against his interest. There is no possible relief against Mr Taouk in these proceedings. Any relief would be on facts contingent on an outcome in these proceedings and other proceedings. Further, it was argued that 1 [2013] QCAT 508. -- 2 of 4 -- 3 joinder will cause him inconvenience and expense in being represented in proceedings. Oral submissions were made that joinder was unnecessary if the only object is for him to give evidence in the proceedings as that can be achieved in other ways. Further, joinder would not assist resolution in a quick or economical way as the involvement of Mr Taouk was resolved by the Taouk Decision. Finally, the prospect of Mr Taouk being bound may be relevant to subsequent recovery proceedings but that was no practical benefit in these proceedings. [9] Nursery Place does not seek Mr Taouk’s joinder and sees no benefit to it in the present application. [10] It was common ground in this joinder application that only two of the 16 items remained on foot in the substantive application: items 9 (common property stairs) and 13 (common walkways to come of the units). QBCC submitted all 16 items in Nursery Place’s claim were disposed of in Mr Taouk’s favour in the 2013 Decision. That view at least partly founded its decision to reject the insurance claim. [11] The power to join in s. 42 of the QCAT Act is discretionary. The threshold for exercise of the discretion is that one of the three criteria in s. 42(1)(a)- (c) is met. The Tribunal is not satisfied that any is met. [12] First, it remains unclear what aspects of the present application might bind Mr Taouk or benefit him. The outer boundaries of his responsibility to rectify were stated in the 2013 Decision, and this application cannot change that. It is only if Nursery Place succeeds, and in achieving that success it is apparent that Mr Taouk is liable to, or exposed to recovery proceedings because of certain facts that might then bind him in those later recovery proceedings. [13] Second, Mr Taouk’s interests are not affected by these proceedings. While it is true Nursery Place will succeed only if the Tribunal finds the 2013 Decision has not excluded his insurance liability, his interests are not determined by such a finding. It is a separate process that would make such a determination. [14] The decision to take recovery action under s. 71 of the QBCC Act is a discretionary one. The chain of events that might lead to Mr Taouk being liable is contingent on a series of other steps, including a finding for Nursery Place in this proceeding, QBCC’s processes in effecting rectification under the insurance, potentially including disputed scope of work decisions, the exercise of discretion to recover under s. 71, and whether Mr Taouk is, in fact and law, the relevant building contractor for that section, taking into account the 2013 Decision and any statutory or other defence he may have. [15] As was noted in Coral Homes (Qld) Pty Ltd v Queensland Building and Services Authority (No. 2),2 the fact that a potential party’s interests might 2 [2012] QCATA 242. -- 3 of 4 -- 4 be affected does not “as a matter of course” enliven joinder3. There must be some utility or purpose in the joinder. Some relevant purposes are stated at [11] in the Coral Homes appeal decision. [16] In this case, the joinder application was brought when proceedings were well advanced; the interests affected are contingent at best; and it may be prejudicial to Nursery Place if Mr Taouk is joined. [17] For those reasons the Tribunal is not satisfied that the objectives of the Tribunal stated in s. 3 of the QCAT Act are met, or that the requirements of s. 42(1) are satisfied. Accordingly, the application for joinder is dismissed. Order The application to join John Taouk as a second respondent in the proceeding is dismissed 3 Mair Renovations v Miller (No 2) [2014] QCAT 506, [41]. -- 4 of 4 --