Aspen Constructions Pty Ltd v Queensland Building Services Authority

[2010] QCAT 430

CITATION:		Aspen Constructions Pty Ltd v Queensland Building Services Authority [2010] QCAT 430
PARTIES:	Paul Andric t/a Aspen Constructions Pty Ltd
v
Queensland Building Services Authority

APPLICATION NUMBER:   QR265-09

MATTER TYPE: Building matters

HEARING DATE:     Decision on the papers

HEARD AT:  Brisbane

DECISION OF: Peta Stilgoe, member

DELIVERED ON: 30 August 2010

DELIVERED AT:      Brisbane

ORDERS MADE:	Wayne Raymond Jater be joined as a party to these proceedings. Mr Jater file and serve of the applicant and the Authority any material on which he relies by 1 October 2010. The applicant and respondent file and serve any material in reply to Mr Jater’s material by 15 October 2010.
CATCHWORDS :	Application to join a party – where dispute as to who carried out the work - Baulderstone Hornibrook Pty Ltd –v- Beneficial Finance Corporation Limited - Hume –v- QBSA – ss 24, 42 QCAT Act – s 104 CCT Act

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the

Queensland Civil and Administrative Tribunal Act 2009

REASONS FOR DECISION

1. The Authority issued a direction to Mr Andric requiring him to rectify work in respect of the installation of a water tank. Mr Andric’s material suggests that the water tank was installed by a third party, Mr Jater. Mr Jater admits that he undertook the work but says that he undertook it at the direction of Mr Andric. The Authority has applied to join Mr Jater as a party to this proceeding.

2. Section 42(1) of the Queensland Civil and Administrative Tribunal Act (“QCAT Act”) allows the joinder of a party if, relevantly, the person should be bound by, or have the benefit of a decision of the tribunal in the proceeding or it is desirable that the person be joined as a party to the proceeding. The Authority says that it is desirable to have Mr Jater as a party to this proceeding and he is a person who should be bound by the decision because:

a)The Authority says that the tribunal will determine whether the work was done by Mr Andric or at his direction.

b)If Mr Andric did carry out the work, or it was done at his direction, then the tribunal can confirm the Authority’s direction.

c)If the tribunal finds that Mr Jater carried out the work as principal, then it could substitute a decision to rectify against Mr Jater under section 24(1) of the QCAT Act. This would reduce the delay and inconvenience to the home owner that would otherwise result from the Authority having to issue a new direction to rectify which could be subject to an application for review.

1. The Authority directed the tribunal’s attention to Baulderstone Hornibrook Pty Ltd –v- Beneficial Finance Corporation Limited[1] and Hume –v- QBSA[2]. Baulderstone involved a unique set of circumstances which are not replicated here. The decision is helpful only for the proposition that, while a decision could be made in the absence of a party, on the face of it, it was convenient that both parties interested in the question should be joined before the Tribunal.

   [1] [1998] QCA 430

   [2] [2004] QCCTB 136

2. The facts in Hume are much closer to the circumstances in this proceeding in that it involved a question of which of two contractors was responsible for the work the subject of the direction to rectify. The tribunal determined that, in review proceedings, the tribunal stands in the shoes of the Authority and can therefore determine whether and to whom a direction to rectify should issue. Member Lorisch, at paragraph 32, said:

”Such an order might be to substitute the third respondent for the applicant, if the third respondent is found to have been the builder. That is a matter in the discretion of the Tribunal. That discretion is not fettered or restricted by any decision the Authority may have taken on the information that the Authority then had in its possession.”

1. Mr Lorisch’s decision related to section 104 of the Commercial and Consumer Tribunal Act. That section is not materially different from section 24(1) of the QCAT Act.

2. Mr Andric says that the tribunal should not join Mr Jater because there are separate proceedings against Mr Jater in relation to the house adjoining the subject premises, they are separate contracts and not related in any way. Mr Andric has misconceived the intention behind these proceedings. The Authority is not seeking to join Mr Jater because there are other proceedings on foot, it is seeking to join him because Mr Andric alleges that Mr Jater is the person who did the work and, therefore, should bear the responsibility for its rectification.

3. I am persuaded that joining Mr Jater as a party to these proceedings is desirable for the effective and speedy resolution of the question of who is responsible for the rectification work. If Mr Jater is responsible, he should be bound by that decision. If he is not responsible, he should have the benefit of that decision.

4. I order that:

a)Wayne Raymond Jater be joined as a party to these proceedings.

b)Mr Jater file and serve of the applicant and the Authority any material on which he relies by 1 October 2010.

c)The applicant and respondent file and serve any material in reply to Mr Jater’s material by 15 October 2010.

1. The compulsory conference on 22 October 2010 will proceed.