Dixonbuild Pty Ltd trading as Dixon Homes v Queensland Building and Construction Commission [2017] QCAT 377

CITATION: Dixonbuild Pty Ltd trading as Dixon Homes v Queensland Building and Construction Commission & Anor [2017] QCAT 377 PARTIES: Dixonbuild Pty Ltd trading as Dixon Homes (Applicant) v Queensland Building and Construction Commission (First Respondent) and Ram Saran (Second Respondent) APPLICATION NUMBER: GAR206-17 MATTER TYPE: Building matters HEARING DATE: 27 October 2017 HEARD AT: Brisbane DECISION OF: Member Cranwell DELIVERED ON: 3 November 2017 DELIVERED AT: Brisbane ORDERS MADE: Under section 42 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), Ram Saran be joined as a party to the proceeding. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JOINDER OF CAUSES OF ACTION AND OF PARTIES – PARTIES – where the builder alleges defect caused by the home owner – whether the home owner should be joined Queensland Building and Construction Commission Act 1991 (Qld), s 72, s 86 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 20, s 21, s 24, s 40, s 42 Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority (No 2) [2012] QCATA 242 -- 1 of 5 -- 2 APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] Dixonbuild Pty Ltd (the Builder) has sought review of a decision of the Queensland Building and Construction Commission (QBCC) to issue it with a direction to rectify certain building work at premises owned by Mr Ram Saran (the Home Owner). The Builder has made application for the Home Owner to be joined to the proceeding. [2] The Tribunal has directed the Builder, the QBCC and the Home Owner to provide written submissions in relation to the joinder application, and has directed that the application for joinder be determined on the papers. Applicable Law [3] Section 42 of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act) provides for the joinder of parties as follows: 42 Joining parties (1) The tribunal may make an order joining a person as a party to a proceeding if the tribunal considers that-- (a) the person should be bound by or have the benefit of a decision of the tribunal in the proceeding; or (b) the person's interests may be affected by the proceeding; or (c) for another reason, it is desirable that the person be joined as a party to the proceeding. (2) The tribunal may make an order under subsection (1) on the application of a person or on its own initiative. [4] Section 40 of the QCAT Act specifies that the parties to a review proceeding include a person joined under section 42. Submissions of the Parties [5] The Builder has submitted that the review proceedings involve consideration by the Tribunal of: a) whether the Builder has engaged in defective building work in respect of a complaint made by the Home Owner; b) whether works carried out by the Home Owner resulted in the defects identified in the complaint made by the Home Owner; -- 2 of 5 -- 3 c) whether the direction to rectify ought to be issued to the Builder in respect of any defective building work; d) all factual and legal questions that are relevant to the determination of the above issues. [6] The Builder argues that if the Home Owner is not joined as a respondent, it may result in separate review proceedings being commenced by the Home Owner if he is unhappy with the determination of the Tribunal. A multiplicity of proceedings may result in inconsistent outcomes, additional costs and delay in the final resolution of the issues in dispute. [7] In addition, the Builder argues that it may be prejudiced in terms of cost and unnecessary delay if a separate proceeding is required to be commenced involving the Home Owner as a party, given the Builder’s view that the problems in need of rectification arose from the actions of the Home Owner. [8] The QBCC opposes the application for joinder. It concedes that the Home Owner’s interests may be affected by the proceedings for the purposes of s 42(1)(b). It also concedes that separate review proceedings may be commenced by the Home Owner if he is unhappy with the determination of the Tribunal is a possible outcome. However, it submits: a) The statutory scheme for the rectification of building work enables a consumer to seek the assistance of the QBCC, who then is able to pursue remedies for defective building work. It is undesirable for consumers to be drawn into costly and complex litigation. b) The issue of whether the moisture problems experienced by the Home Owner are caused by his own actions or defective building work by the Builder is central to the proceedings. However, s 72(3) of the Queensland Building and Construction Act 1991 (Qld) (QBCC Act) expressly provides for circumstances outside of the terms of the contract to be considered in deciding whether to issue a direction to rectify. Accordingly, a cautious approach should be taken to expanding the scope of the review proceedings to consider contractual issues which are of limited relevance in the review proceeding. c) The joinder of the Home Owner would increase the complexity and cost of the review proceedings, and would require the Home Owner to obtain professional legal and engineering assistance at substantial cost. d) The attitude of the Home Owner to the joinder application is highly relevant. [9] The Home Owner also opposes the application for joinder. The Home Owner made submissions in relation to his position as a complainant to the QBCC. He also made submissions in relation to the reasonableness of works carried out by him. -- 3 of 5 -- 4 Discussion and Decision [10] The QBCC Act provides for the Tribunal to review a decision to direct or not direct rectification.1 In the review jurisdiction, the Tribunal decides the review by way of fresh hearing on the merits,2 and the purpose of the review is to produce the correct and preferable decision.3 The original decision- maker, in this instance, the QBCC, must use its best endeavours to assist the Tribunal to reach the correct and preferable decision.4 [11] Under section 24 of the QCAT Act, the functions of the Tribunal for the review jurisdiction are to confirm or amend the decision; or set aside the decision and substitute its own decision; or set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate.5 The decision made by the Tribunal is taken to be the decision of the original decision-maker.6 [12] The objects of the QCAT Act include having the Tribunal deal with matters in a manner that is accessible, fair, just, economical, informal and quick.7 [13] One possible outcome of the review proceedings is that the Tribunal may decide to set aside the decision of the QBCC to require rectification. Accordingly, I am satisfied under section 42 of the QCAT Act that the Home Owner’s interests may be adversely affected by the outcome of this review proceeding. [14] I accept that any additional party will add to the length of the proceeding and hearing. This is to be balanced against the Builder’s submission that if the Home Owner is not joined that the decision of the Tribunal may result in separate review proceedings being commenced by the Home Owner. The QBCC also accepts that this is potentially possible. The objects of the QCAT Act include having the Tribunal deal with matters in a way that is fair, just and economical. I do not accept that it would promote these objects to decide this joinder application in a manner which potentially may result in further proceedings regarding the same issues. [15] I do not cavil with the proposition that it is generally undesirable for home owners to be drawn into costly and complex litigation in respect of directions to rectify defects given by the QBCC. In support of these propositions, the QBCC has referred me to the following statement by Senior Member Oliver in Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority (No 2):8 1 QBCC Act, s 86(1)(e). 2 QCAT Act, s 20(2). 3 QCAT Act, s 20(1). 4 QCAT Act, s 21(1). 5 QCAT Act, s 24(1). 6 QCAT Act, s 24(2). 7 QCAT Act, s 3(b). 8 [2012] QCATA 242, [20]-[21]. -- 4 of 5 -- 5 In paragraph 70 of the submissions in the appeal Coral Homes sets out three reasons why the joinder should be made, firstly because it will ensure the Tribunal complies with its obligations under ss 3 and 20 of the Act, secondly; it will avoid conflicting and inconsistent findings in subsequent proceedings based on the same facts and thirdly; it will save costs by not having to litigate the same matters twice. These submissions were not put to the learned Member and had they been no doubt he would have turned his mind to them when exercising the discretion. I would still not be persuaded that these are factors that would necessarily warrant a joinder particularly when the proposed parties would not be subject to any order of the Tribunal. I repeat this is a review of an administrative decision, it is not civil litigation involving questions of negligence and/or breach of contract. The limited resources of QCAT should not be expended so parties can use the review process to gather evidence for the purposes of litigating elsewhere, even if time and effort is saved in that litigation because of the evidence given in the review application. [16] However, in my view that decision can be distinguished from the matter before me in that a central issue in these proceedings is whether the moisture problems experienced by the Home Owner are caused by works carried out by him in breach of contract or by defective building work carried out by the Builder. While the QBCC Act permits consideration of circumstances outside the terms of the contract, the issue of whether the moisture problems were caused by the Home Owner in breach of contract appears to me to be at least a relevant consideration in determining whether the direction to rectify defects issued to the Builder should be confirmed, amended or set aside. [17] For these reasons, I am satisfied that it is appropriate to exercise my discretion for the Home Owner to be joined as a party to the proceeding. [18] Accordingly, I make orders accordingly for the joinder of the Home Owner as a party to the proceeding. He will be the second respondent. -- 5 of 5 --