A B Hill Constructions Pty Ltd v Queensland Building and Construction Commission [2015] QCAT 46

CITATION: A B Hill Constructions Pty Ltd v Queensland Building and Construction Commission [2015] QCAT 46 PARTIES: A B Hill Constructions Pty Ltd (Applicant) v Queensland Building and Construction Commission (Respondent) APPLICATION NUMBER: GAR320-14 MATTER TYPE: General administrative review matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member O’Callaghan DELIVERED ON: 12 February 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. Dorothea Gard is joined as a second respondent to the proceedings. 2. The Queensland Building and Construction Commission give to Dorothea Gard one copy of all documents filed by both parties in these proceedings by 4:00pm on 19 February 2015. 3. Dorothea Gard to file two (2) copies in the Tribunal and give to the Queensland Building and Construction Commission and A B Hill Constructions Pty Ltd one copy of any statements of evidence she intends to rely at the hearing of the matter by 4:00pm on 5 March 2015. 4. The compulsory conference listed at Gold Coast at 9:30am on 11 March 2015 is confirmed. CATCHWORDS: PRACTICE AND PROCEDURE – JOINDER OF PARTIES – REVIEW OF DIRECTION TO RECTIFY – whether owner should be joined – where settlement agreement between building and owner -- 1 of 5 -- 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 42 Kline Industries International Pty Ltd v Queensland Building and Construction Commission [2015] QCAT 006 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] The Queensland Building and Construction Commission (‘QBCC’) issued a direction to rectify to A B Hill Constructions Pty Ltd (‘A B Hill’) directing it to carry out rectification work on a house A B Hill had constructed for Dorothea Gard (‘the owner’). [2] A B Hill has asked the Tribunal to review that decision on the basis that it considers it to be unfair to issue the direction in circumstances where:  The owner had issued District Court proceedings against A B Hill concerning the alleged defective work the subject of the direction to rectify.  A B Hill had counter claimed for an amount in excess of $70,000 alleging to be owing to it under the contract.  The District Court proceedings were settled in July 2013.  The terms of settlement were recorded in a deed of settlement and A B Hill considered the effect of that deed was that it was released from any liability with respect to the works the subject of the direction to rectify. [3] The QBCC have applied to adjoin the owner to these proceedings. The Law [4] Section 42 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’)1 gives the Tribunal power to join a person as a party to the proceeding if the Tribunal considers: (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. 1 QCAT Act s 42(1). -- 2 of 5 -- 3 [5] The consideration of this joinder application is a two-step process. Firstly does the owner meet the threshold test set out in subparagraph (a), (b) and (c) and if so should the Tribunal exercise its discretion and join the owner to the proceeding. QBCC Submissions [6] QBCC say the owner will be affected by the proceedings and further it is in the interests of the parties and justice that the homeowner be joined to these proceedings. [7] It says the owner is directly affected by the outcome of the proceedings. If the decision to issue the direction to rectify is set aside she will have no recourse to rectify the defects. It says relitigation of the issues may result if she is not joined as a party. [8] It says the owner in her complaint to the QBCC put forward an interpretation of the deed of settlement with respect to A B Hill’s liability to rectify defective building work which differs from the position adopted by A B Hill on that issue. [9] Both parties were legally represented in the court proceedings. It says the owner’s legal representatives have not had an opportunity to make any submissions to the QBCC as to her position with respect to the intention of the parties in entering into the deed of settlement. [10] The QBCC says that the owner should be afforded the opportunity to clarify her position with respect to the effect of the deed of settlement by being joined in the proceedings. A B Hill’s Submissions [11] A B Hill opposes the joinder. [12] It says that the QBCC’s concerns and reasons for seeking the joinder of the owner can be addressed by simply having the owner appear as a witness and give evidence in the proceedings. [13] It says this would overcome the problem the Tribunal encountered in the Kline Industries2 case referred to by QBCC. [14] That case was also a review of a direction to rectify where the builder submitted it was not reasonable to direct rectification because the dispute had been subject to the settlement agreement. The owners were not parties and did not give evidence. 2 Kline Industries International Pty Ltd v Queensland Building and Construction Commission [2015] QCAT 006. -- 3 of 5 -- 4 [15] The Tribunal in that case said: The Coweys were not called by the QBCC to give evidence, in circumstances where they are the only other witnesses capable of providing evidence on the proper interpretation of the settlement agreement. As a result, the Tribunal considers that the rule in Jones v Dunkel permits it to draw the inference that the Coweys’ evidence, if led, would not have assisted the QBCC’s argument that it was reasonable to issue a Direction where a Settlement Agreement existed.3 [16] A B Hill says the QBCC is wrong when it says a decision setting aside the direction to rectify may lead to a ‘relitigation’ of the same issues if the owner is not a party. [17] It says the Tribunal cannot ultimately resolve all issues between the QBCC, the builder and the owner in these review proceedings. [18] It says the dispute between it and the owner is no longer ‘a building dispute’ but rather a dispute about the interpretation of the deed of settlement which could only be determined by a Court. [19] A B Hill also says that joining the owner will cause delay, complicate proceedings and increase costs with no benefit to the parties or the Tribunal finding. Findings [20] I agree with the observations that have been made in other Tribunal decisions that even if the threshold criteria in s 42(1)(a), (b) or (c) is satisfied, in exercising its discretion to allow a joinder the Tribunal should find that there is some purpose or a utility in the joinder.4 [21] The owner in this case meets the threshold criteria. She clearly may be affected by the proceedings in that if the direction to rectify is set aside she will loose the benefit of the direction. [22] I agree with A B Hill that even if the owner is joined as a party to these proceedings they may still litigate in the courts concerning the issue of the interpretation of the deed. [23] I consider however that if she is joined as a party and the Tribunal, after hearing submissions and evidence, makes findings as to the effect of the deed then the outcome of these proceedings is more likely to lead to a finality of the dispute. [24] Whilst it is true that calling the owner as a witness will give the Tribunal the benefit of hearing her evidence, if she is a party she will have been given the opportunity to make submissions in advance of her position as to the effect and intent of the deed. 3 Ibid at [22]. 4 See Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority [2012] QCATA 241 at [14]. -- 4 of 5 -- 5 [25] This will also be of benefit to the Tribunal in that the Tribunal may be in a better position to make the correct and preferable decision on the review. In these circumstances I disagree with A B Hill that there is no utility in joining the owner to the proceedings. [26] The proceedings are at a relatively early stage. The compulsory conference has not yet been conducted. As such it should not cause any significant delay in the proceedings. [27] It is also relevant that the owner does not oppose being joined to the proceedings. [28] I therefore order that Dorothea Gard be joined as a respondent in the proceedings. The QBCC should provide to her copies of all material filed by both parties so far in the proceedings. [29] Dorothea Gard should then file and serve statements of evidence prior to the compulsory conference. I will issue directions accordingly. -- 5 of 5 --