Acron Pty Ltd v Couran Cove Holdings Pty Ltd [2015] QDC 113

1 [2015] QDC 113 DISTRICT COURT OF QUEENSLAND CIVIL JURISDICTION JUDGE REID No 671 of 2014 ACRON PTY LTD Plaintiff and COURAN COVE HOLDINGS PTY LTD Defendant BRISBANE 9.50 AM, WEDNESDAY, 6 MAY 2015 JUDGMENT . -- 1 of 4 -- 2 JUDGMENT HIS HONOUR: This is an application by the plaintiff pursuant to rule 69 of the Uniform Procedure Rules to join the second and third respondents as parties to the proceedings and for leave pursuant to rule 377(1) of UCPR to amend the statement of claim. 5 The first respondent sought an order that it be removed from the proceedings. The second respondent in submissions accepted that it was quite unambiguously named as the contracting party in the contract documents relied on by the plaintiff. Moreover, the proposed further amended statement of claim exhibited to an affidavit of the plaintiff’s solicitor filed on the 8th of April 2015 alleges only that the 10 agreement relied on was between the plaintiff and the second defendant and that it provided the services and goods for and to the second defendant. Nowhere in the proposed pleading is it alleged the first respondent had any contractual or other arrangement with the applicant. In such circumstances, the applicant’s solicitor did not oppose the order sought by the first respondent that it be removed from the 15 action. I therefore ordered at the hearing of the application yesterday that: (1) the second respondent be included as a party to the proceedings; 20 (2) the first respondent be removed as a party to the proceedings; (3) the applicant pay the first respondent’s costs of and incidental to the proceedings, including its costs of this application to be assessed; (4) there be no order as the second respondent’s costs of the application. 25 I indicated I would make orders with respect to the filing and service of the further amended statement of claim when I delivered judgment with respect to the proposed joinder of the third respondent. In such circumstances, the only contentious issue remaining concerned the 30 application to join the third respondent as a party to the proceedings and consequential orders. In the proposed further amended claim and statement of claim, the applicant claims against the third respondent $180,709.82 “for services rendered” and further and in 35 the alternative as a debt due and owing. It does not seek any such sum “for breach of contract” as it does against the second respondent. The claim concerns the installation by the applicant of a water treatment plant and sewerage treatment plant on land at Couran Cove. 40 In the proposed further amended statement of claim, the applicant makes the following allegations relevant to its claim against the third respondent: (a) that the third respondent “is the owner” of the sewerage treatment plant and water treatment plant (hereafter “STP” and “WTP”); 45 (b) that the STP and WTP were so provided pursuant to a contract between the applicant and the second respondent; (c) that the STP and WTP were “for the benefit” of the third respondent; (d) that it was “an implied term of the agreement” (i.e. the agreement between the applicant and the second respondent) that the third respondent would 50 -- 2 of 4 -- 3 JUDGMENT remunerate the applicant for the STP and WTP provided. It is alleged such term is implied “so as to ensure business efficacy of the agreement”; (e) the STP and WTP, in accordance with the agreement between the applicant and the second respondent, were installed on the third respondent’s property; (f) the third respondent “has received the benefit of such works for [sic] which 5 has been acknowledged by Mr Quinn on behalf of the (respondents).” I interpose that the applicant alleges that payments for the STP and WTP totalling $171,594.53 have been made, but it is not alleged who made such payments, and that $180,709.82 remains unpaid; (g) that such sum “has been acknowledge as a debt on behalf of”, inter alia, each 10 of the respondents and they have not challenged such invoices; (h) “the unpaid amount was and remains acknowledged as a debt by Mr Quinn on behalf of each of the three respondents”. I interpose again that, beyond the bland assertion of that fact, no facts are pleaded to 15 indicate the basis of the assertion that Mr Quinn’s acknowledgement of debt was on behalf of each of the respondents and, so far as I can ascertain, there is no evidence in the affidavits filed to support such a conclusion. Indeed, in paragraph 17 of the pleading, reference is made to an email from Mr Quinn to an employee or agent of the applicant described as “Ken”, referring to an approval by the “precinct body 20 corporate committee” (as opposed to the community body corporate, being the third respondent.) Nowhere in the pleading is there reference to facts on which the applicant might rely to establish that Mr Quinn acted on behalf of the third respondent. 25 Whilst in paragraph 20 of the proposed amended statement of claim, the applicant alleges the third respondent’s failure to pay the $180,709.82 was “in breach of the terms of the agreement”, such a claim for breach of contract is not sought in the prayer for relief or in the claim itself. 30 Counsel for the third respondent submitted that the applicant’s claim against the third respondent, as articulated in the proposed further amended statement of claim, has no prospect of success and so could not justify the relief claimed against the third respondent. In his submissions, counsel referred to the email of Mr Quinn referred to in the proposed pleading, which is exhibit KP6 to an affidavit of the applicant’s 35 solicitor filed in the proceedings and to the fact, as I’ve previously indicated, that this referred to the “precinct body corporate committee” having approved the voting direction for the budget. He submitted that pursuant to sections 167 and 168 of the Mixed Use Development 40 Act, there is a clear distinction between a precinct body corporate and a community body corporate and submitted that the references to the precinct body corporate committee in Mr Quinn’s email could not be said to amount to a representation that he acted on behalf of the community body corporate, namely, in this case, the third respondent or that the community body corporate would be responsible for any 45 indebtedness to the applicant. -- 3 of 4 -- 4 JUDGMENT Perhaps even more importantly he submits that the documentation attached to the affidavit filed by the applicant’s solicitor shows that whilst the third respondent was the registered owner of the land on which the WTP and STP had been installed, it was subject to a 50-year lease to a lessee – effectively the second respondent – at the time of these negotiations and that, pursuant to the term of the lease, which was 5 exhibited to the affidavit of Shane Peter Grant filed by leave before me, the “demised premises” meant the land described but “shall exclude all improvements, fixtures, fitting, facilities and appurtenances contained thereon all of such excluded items being the property of the lessee.” 10 He submitted, as seems clearly to be the case, that, therefore, the WTP and STP being improvements, fixtures, fittings, facilities or appurtenances contained on the subject land, are the property of the lessee. The consequence of that fact, therefore, is that the third respondent did not benefit from the installation of the STP or the WTP, contrary to the allegations in paragraph 6(a) and 10A of the proposed Further 15 Amended Statement of Claim. Mr Coulsen, counsel for the third respondent, also referred to the provisions of the Property Law Act, which deal with contracts for the benefits of third parties and submitted that it was clear that the applicant did not enliven the relevant provisions 20 of that Act so as to be able to recover from the third respondent such relief as may be just or convenient. The applicant has not in the pleading indicated any overt reliance on those provisions of the Property Law Act dealing with contracts for the benefit of third parties and the factual matters I have briefly stated in relation to the lease arrangements militate against any possible reliance on that section. 25 In such circumstances, it appears that no prospect of success against the third respondent has been demonstrated. I conclude on the basis of the proposed pleadings and evidence before me that the applicant has not established, as required by rule 69: (1) that the third respondent’s presence before the Court is necessary to enable 30 the Court to adjudicate effectually and completely on all matters in dispute; or (2) that its presence would be desirable, just or convenient to enable the Court to adjudicate effectively or completely on all matters in dispute connected with the proceedings. 35 In so deciding, I have considered also the written contracts with respect to the STP and WTP. They were exhibited to the affidavit of the applicant solicitor filed on the 8th of April 2015. Each, under the letterhead of the applicant, refers to the second respondent as the “customer”. Nowhere in the written contract documentation is 40 there reference to the third respondent. In the circumstances, the application to join the third respondent as a party is dismissed. I order the applicant to pay the third respondent’s costs of and incidental to the application to be assessed. I also order that the applicant be granted leave to 45 amend the claim and statement of claim filed in the District Court of Queensland at Brisbane on the 26th of February, which proceedings shall now be against only the second respondent and that such amended pleading be filed and served on the second respondent on or before the 20th of May 2015. I’ll give you liberty to just come back to me if there’s a procedural matter that I have overlooked. 50 -- 4 of 4 --