Agius v Queensland Building and Construction Commission - [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:

1.    Gedoun Constructions Pty Ltd atf Gedoun Development Unit Trust is removed as a Respondent in the proceeding.

2.    Gedoun Constructions Pty Ltd is joined as a Respondent in the proceeding.

3.    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.

4.    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 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

Gedoun Constructions Pty Ltd (‘the builder’) contracted to build a residential home for Mark Elliot Agius (‘the owner’) in Townsville, Queensland.
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.
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’.
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.
The QBCC filed an application for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] QCAT 144
Decision Date

CaseChat Overview and Summary

Mark Elliot Agius brought an application to review a decision of the Queensland Building and Construction Commission (QBCC) against Gedoun Constructions Pty Ltd atf Gedoun Development Unit Trust, in relation to a complaint about a residential home built in Townsville, Queensland. The QBCC had directed that there be no direction to rectify or remedy to the builder for complaint items 1 and 2 of a complaint form dated 24 December 2019. The QBCC filed an application to join Gedoun Constructions Pty Ltd as Trustee for the Gedoun Development Unit Trust as a party to the proceeding. Gedoun Constructions Pty Ltd, which holds a Queensland builder's licence, was the entity that had contracted to build the home. The owner filed an application to remove Gedoun Constructions Pty Ltd as Trustee for the Gedoun Development Unit Trust as a respondent in the proceeding. The legal issues were whether the respondent could be effectively substituted under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and whether the application of the owner was an abuse of process. The tribunal found that Gedoun Constructions Pty Ltd was entitled to be joined as a respondent in this proceeding as an affected party and that the tribunal had discretion as to the procedure for a proceeding. The tribunal could order the removal or joinder of a party. The effect of substitution could be achieved by removing the existing respondent and joining the builder as a respondent. The tribunal found that the owner's allegation that the joining of the Trust was an abuse of process, and designed to delay rectification of defects to his home, was not established. The orders of the tribunal were that Gedoun Constructions Pty Ltd atf Gedoun Development Unit Trust was removed as a respondent in the proceeding, Gedoun Constructions Pty Ltd was joined as a respondent in the proceeding, the preliminary issue as to whether the work was 'building work' in whole or in part was to proceed to be determined on the papers by a Member of the tribunal without an oral hearing, on the submissions filed, and the matter was to be set for a Directions Hearing on 3 June 2021 together with GAR193-20, GAR194-20, GAR373-20 and GAR392-20.

Orders