Bach v Majestic Pools & Landscapes Pty Ltd
[2010] QCAT 581
•23 November 2010
| CITATION: | Bach v Majestic Pools & Landscapes Pty Ltd [2010] QCAT 581 |
| PARTIES: | Mr & Mrs Russell and Clare Bach |
| V | |
| Majestic Pools & Landscapes Pty Ltd |
| APPLICATION NUMBER: | BD243-07 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 15 October 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | Kerrie O’Callaghan, Senior Member |
| DELIVERED ON: | 23 November 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Application to join party dismissed. |
| CATCHWORDS : | Application to join party – Jurisdiction of Tribunal – Certification work |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Self represented. |
| RESPONDENT: | Self represented. |
REASONS FOR DECISION
Background
The Respondent (“Majestic’) has applied to join a party to the proceeding namely the certifier engaged by them in the construction of the applicant’s swimming pool, Suresh Chandra (“Chandra”),
This matter has a lengthy history.
The original application was filed by the applicant homeowners (“The Bachs”) in May 2007 in the Commercial and Consumer Tribunal (“CCT”). At that stage the contract between the parties for the construction of the swimming pool by Majestic was still on foot. The Bachs sought various orders including rectification of alleged defects and credit for monies paid in completion of the work.
Majestic filed a defence and counter claim in June 2007 disputing the claim.
The matter went through a series of directions hearings in the CCT.
At that same time the Bachs had lodged a complaint with the Queensland Building Services Authority (QBSA) concerning the conduct of Chandra.
At a directions hearing in December 2007 the applicant was ordered to provide to the respondent correspondence from the Brisbane City Council in relation to the obligations of the certifier. The Bachs say this was done by 21 December 2007. This document detailed the opinion of the Brisbane City Council that the certifier should have ceased the works at the steel frame stage.
In December 2007 the Bachs terminated the contract with Majestic.
In January 2008 the QBSA, following the complaint by the Bachs, made a decision that grounds existed for taking disciplinary action against Chandra on the basis that Chandra had engaged in professional misconduct in certification works with respect to the Bachs’ pool. Chandra reviewed that decision and the CCT on the review confirmed the QBSA’s decision that Chandra had engaged in unprofessional conduct.
Following termination of the contract the Bachs filed an amended claim in April 2009.
[10] In June 2009 Majestic filed the application which is the subject of this hearing, that is, an application for the inclusion of a party under the CCT Act. They also sought to delay delivery of their amended response until the issue of joinder was determined.
[11] Both the Bachs and the proposed respondent Chandra filed submissions opposing the joinder.
[12] The Bachs raised specifically the issue of delay on the part of Majestic in seeking to join Chandra.
[13] The application for joinder came before the CCT in October 2009 and was adjourned to the registry. Majestic was required to deliver a proposed draft statement of claim against Chandra.
[14] The application for joinder was re listed for 25 November 2009 and again was adjourned to the registry. There was a directions hearing also held that day and the Bachs were ordered to file an amended claim and further evidence by January 2010 .Majestic was to file an amended response and witness statement by February 2010.
[15] From 1 December 2009 QCAT replaced the CCT.
[16] The matter was listed for a review and further orders were made in February 2010 requiring delivery of Majestic’s defence and statements of evidence.
[17] Majestic filed its amended defence and counter claim in March 2010.
[18] This response makes claims against Chandra for breach of contract and negligence and says that it is entitled to offset liability against Chandra for any loss or damage the Tribunal may find in favour of the Bachs with respect to certain parts of the Bach’s claim.
[19] The matter has since been the subject of an Expert’s Conclave and a Compulsory Conference.
[20] The experts have produced a joint report. The matter did not resolve at the conference. At the conference, Majestic bought up the issue of the joinder application that had been adjourned to the registry. The matter was listed for a directions hearing and the application for joinder was again listed for hearing.
The issues
a)Does QCAT have jurisdiction to make orders against Chandra?
b)Regardless, should Chandra be joined as a party to these proceedings?
Submission and findings
a)Does QCAT have jurisdiction with respect to any claim against Chandra.
[21] In this regard QCAT exercises jurisdiction conferred on it by the Queensland Building Services Authority Act 1991 (“the QBSA Act”).
[22] Section 77 of the QBSA Act gives jurisdiction to the Tribunal to decide a “building dispute”. “Building dispute” is defined in schedule 2 to the QBSA Act as meaning; relevantly
a)A domestic building dispute
b)A minor commercial building dispute
c)A major commercial building dispute if the parties consent to the matter being heard by the Tribunal.
[23] Domestic and commercial building disputes are defined by the QBSA Act. To be one or the other the dispute must relevantly be:
a)A claim or dispute between a building owner and contractor or 2 or more building contractors relating to the performance of reviewable domestic work or reviewable commercial work
b)A claim or dispute in negligence, nuisance or trespass related to the performance of reviewable domestic work or reviewable commercial work.
[24] In relation to a) ,“Building contractor” is defined in the QBSA Act to mean a person who carries out “building work”.
“Building work” is defined not to include work of a kind excluded by regulation.
[25] Section 55(1) of the QBSA Regulations provides at subsection(ze) that certification work performed by a building certifier under the Building Act 1975 in the certifiers professional practice is not “building work” for the purposes of the definition of “building work” in the QBSA Act.
[26] In the QCAT decision of Wayne Fox Building Contracts Pty Ltd v Everlyn Building Certification Pty Ltd [2010] QCAT 356, the member found that on the basis of that exclusion, work performed by the certifier was not “building work ‘ for the purposes of the QBSA Act and therefore there was no dispute with a “building contractor”.
[27] In relation to b) ,Majestic would need to establish that the claim against the certifier “related” to the performance of reviewable domestic work or reviewable commercial work.
[28] In relation to domestic building work this proposition is rejected in both the QCAT decision of Fox and the CCT decision of Cleary v Bowcock [2005] QCCTB 8.
[29] In the Fox decision, the member said:
“I have also considered whether the dispute in this case could include that part of the definition of “domestic building dispute” referred to in the QBSA Act as “(c) a claim or dispute in negligence, nuisance or trespass related to the performance of reviewable domestic work other than a claim for personal injuries”. However I do not consider the certification and inspection work the respondent was engaged to perform amounts to the “performance” of “domestic building works” which is relevantly defined in the Domestic Building Contracts Act 2000 as “(b) the renovation, alteration, extension, improvement or repair of a home”. I think that performance means the actual physical performance of the renovation or alteration of the home.”
[30] In the case of Cleary, the member considered the application of subparagraph (c) of the definition of “domestic building dispute” to work performed by certifiers. He concluded “I consider that certification work is not within the contemplation of claims or disputes referred to in subparagraph (c)… as it is not work related to the performance of “reviewable domestic work” as it is not involved with the actual physical performance of “reviewable domestic work”.
[31] In relation to commercial work, it would have to be established by Majestic that the claim against Chandra related to the “performance of reviewable commercial work”.
[32] Reviewable commercial work is defined in s76 of the QBSA Act to mean “Tribunal work other than domestic reviewable work”.
[33] In Cleary the member considered whether the work of the certifier could come within the definition of “Tribunal work” as set out in section 75 of the QBSA Act. In particular he considered whether it would come under section 75(1)(g) “the inspection of a completed building”. He commented “as to subparagraph (g), whilst a building certifier may “inspect” a building during the course of his duties, any such inspection is to my mind, subsidiary and subordinate to the real and actual purpose which is certification of the building. In all the circumstances then, I consider the work of a private certifier as not within the definition of “Tribunal work” (and more particularly) “reviewable commercial work”.
[34] Majestic in its written submissions submitted that certification work comes within the jurisdiction of the CCT (and therefore QCAT) under section 75(4) of the QBSA Act. That section relevantly provides that “a person is taken to carry out Tribunal work if the person provides advisory services… relating to Tribunal work”.
[35] Majestic submitted that Chandra performed an advisory role within the building works and had substantial ability to influence and change the outcome of the building works and therefore was performing advisory services relating to Tribunal work (which includes any site work including construction of a swimming pool).
[36] I do not accept this argument for the same reasoning that the member in Cleary rejected the argument that the Tribunal had jurisdiction with respect to certifiers because part of their work was “inspection of a completed building” which came within the definition of “Tribunal work”.
[37] As referred to above the member said, whilst a building certifier may inspect a building during the course of his duties, any such inspection is subsidiary and subordinate to the real and actual purpose which is certification of the building. He referred to the exclusion of the certification work from the definition of “building work” in the QBSA Act Regulations and made the comment that “consistent with the use of that terminology, in my view, if the legislature intended to include certification work in the definition of “Tribunal work” it would have been explicit in so identifying that work”.
[38] The same reasoning applies to these circumstances. Whilst Chandra may have been providing advisory services, it was part of and subordinate to his role of certification of the works. I find that as such the work which would be the subject of this dispute is not “Tribunal work” within section 75 of the QBSA Act.
[39] The Bach’s submission on this point was that relying on the decision of Cleary and Bowcock, the Tribunal has no jurisdiction to hear a claim against Chandra.
[40] At the oral hearing, the representative from Majestic did not press the point that the Tribunal had jurisdiction to make the orders sought against Chandra.
[41] In all the circumstances, I find that the Tribunal does not have jurisdiction to hear the claim that Majestic want to make against Chandra on the basis that such a claim is not a “building dispute” in terms of section 77 of the QBSA Act.
b) Should Chandra be joined to these proceedings in any event?
[42] In written submissions Majestic argued that under section 53 of the CCT Act the Tribunal has a broad discretion when determining whether or not to include a party to a proceeding.
[43] S53 provides:
“53 Inclusion of parties (1) for a proceeding, the Tribunal may order that a person be included as a party to the proceeding if the Tribunal considers that:
The person ought to be bound by, or have the benefit of, an order of the Tribunal in the proceeding; or
The person’s interests are affected by the proceeding; or
If another reason it is desirable the person be included as a party.
[44] Majestic relied on the CCT decision of Rodgers Pools v SQ Pty Ltd (2007) QCCT B 179 to support their argument that even if the Tribunal determines that it does not have jurisdiction to hear a claim against a party, the Tribunal is still able to join that party to the proceeding.
[45] In that case, there was an application to join a supplier of the product to a domestic building dispute which concerned the construction of the swimming pool. The intended claim was similar to this case that is if the respondent (the applicant for the joinder) in the case was found liable to the applicant homeowner, then the supplier should be liable to the respondent in like amount, for the damages caused for the alleged defective product.
[46] The basis of the claim was misleading in deceptive conduct under the Trade Practices legislation. Neither CCT or QCAT has jurisdiction to deal with claims under the Trade Practices Act.
[47] The member in the decision commented that
“Although the Tribunal’s jurisdiction may be a factor to take into account as to whether a particular amendment should be allowed or a party included, the Tribunal’s discretionary powers to amend pleadings and to include further parties to the proceedings is not, in my view, necessarily strictly confined within the limits of the Tribunal’s jurisdiction.”
[48] The member concluded that in certain circumstances that is,
a)If a proceeding can only be determined when all the parties to the proceeding joined or
b)It may be desirable to have the dispute heard in one proceeding
Then, even though the Tribunal may not have jurisdiction to hear the claim against the proposed party, they still should be joined and the proceedings transferred to the forum which has jurisdiction.
[49] In written and oral submissions, Majestic argued that the contributions of Majestic and Chandra were “indivisible constituent parts” and liability can only be determined when the two parts were heard together.
[50] Parts of the claim by the Bachs against Majestic do concern works that Chandra did or didn’t do as certifier engaged by Majestic. For example Majestic draws the Tribunal’s attention to paragraph 46 of the claim which deals with Majestic’s responsibility to provide a copy of the inspection performed at steel fixation. Majestic argues that the steel certificate was not issued by Chandra and therefore allegations against the respondent in this regard are in inextricably linked to that of the certifier. They give other examples of how the claim against Majestic is linked with the activities of the certifier.
[51] At the hearing the representative for Majestic referred again to a number of examples of links between the applicant’s claim against Majestic and possible liability of Chandra in relation to those claims.
[52] Majestic submitted that to keep the proceedings separated could lead to multiple fact findings on the same issues, inconsistent findings and a multiplication of cost.
[53] In the Rogers case the Tribunal member accepted that in certain cases it is desirable for those reasons to join a party even though it means the Tribunal does not have jurisdiction. The Tribunal, however, also recognised that to adopt such a course would mean that the matter would have to be transferred to a forum that did possess jurisdiction.
[54] At the hearing of this application I specifically raised with the representative of Majestic this obvious conclusion, that is, if the certifier was joined and the Tribunal did not have jurisdiction the matter would have to be transferred to the courts.
[55] The representative said that was not what Majestic intended. He suggested that on the basis of the Rogers case the certifier could be joined even though the Tribunal had no jurisdiction with respect to the claims against the certifier and the matter could still be heard in the Tribunal. This is clearly wrong. The case of Rogers is not an authority for that proposition.
[56] As the Tribunal has no jurisdiction with respect to the proposed claim against Chandra, Chandra could still be joined but the dispute would have to be transferred to another forum.
[57] The question is should that happen here? It is clear that there are common issues between the claim against Majestic and any possible liability on the part of Chandra with respect to those issues. If the application for joinder had been made and pursued early in the proceedings it may have been a case where it would be appropriate to join Chandra and then have the matter transferred.
[58] Against the benefits of that course, the prejudice to the Bachs must be taken into account in considering whether to take this step at this very late stage in the proceedings.
[59] The Bachs pointed out they have no desire to pursue Chandra for damages as their contract was with Majestic. They also correctly pointed out that the claims involving any possible contribution by Chandra form only part of their claim against Majestic.
[60] In written submissions they refer to and rely on the Court of Appeal decision of MGM Containers Pty Ltd v Wockner (20006) QCA 502. There the Court of Appeal considered a decision of Her Honour Justice Phillipides in which she refused a joinder application on 3 grounds
a)There had been considerable delay in applying for leave to join the third party
b)The joinder would add considerably to the complexity of the issues to be determined at trial and therefore to its length and cost
c)The issues to be raised against the third party were distinct and therefore the desirability of having all issues determined in one proceeding was diminished.
[61] The following point was made by the Court of Appeal in dismissing the appeal
“The application called into question 2 conflicting principles. The first is that there are good reasons why a third party should be joined in an action where a defendant has an arguable case for contribution or indemnity from the third party against the plaintiffs claim. Such a joinder ensures finality of litigation, avoids multiple proceedings with associated extra cost, and obviates the possibility that there may be different decisions given on the same issues tried by different courts. The second principle is that a plaintiff should be allowed to prosecute its action and obtain judgement without being delayed or inconvenienced by the defendants endeavours to offset its liability.”
[62] These conflicting principles also apply in this case.
[63] It is apparent that there are common issues between the current proceedings and the claim by Majestic against Chandra. I disagree with Majestic’s submissions that it may not be possible for the Tribunal to make a finding on certain issues unless Chandra was joined. Majestic had a contract with the Bachs. The Tribunal can make findings.
[64] Against this is the interests of Bachs in finalising their claim. In their submissions they point to the following considerations:
a)There has been considerable delay on Majestic’s part in pursuing this claim against Chandra.
b)Majestic were aware as early as 2007 of the absence of the engineering certification. They only bought this application for joinder in June 2009 and even then the application has not been considered by the Tribunal until now.
[65] At the oral hearing the representative Majestic sought to lay some of the blame of the delay in having the application heard on the Tribunal’s processes. There is no basis for this. It was for Majestic to have the application enlivened once it had been adjourned to the registry in 2008. The matter has been through a number of directions hearings, compulsory conferences and experts’ conclaves. The matter is at the point where it is ready to be set down for a hearing. If Chandra was joined it is not simply a case of complicating the current proceedings in the Tribunal. The whole proceeding would need to be started again in another forum.
[66] In my view it would not be an appropriate exercise of the Tribunal’s jurisdiction to join Chandra at this stage with the unavoidable result that the whole proceeding would have to be transferred to another forum. The Bachs refer to the following statement of His Honour Justice Daubney in Villinger Group Ltd v Redmond (2009) QFC 60.
“I am conscious of course of the degree of the undesirability of the defendant’s being required to pursue Mr Laser… through separate proceedings. I am also, however, conscious of the fact that the present claim against the present defendants is now ready to be set down for trial. It is inevitable that an order granting leave for third party proceedings to issue would not only delay the matter being brought to trial, by reason of the fact that such a trial would necessarily be of significantly greater duration than that presently required for the present proceeding, further delay would be occasioned in order to allocate the block of time necessary to accommodate a more complex and lengthy trial.”
[67] That point is even more pertinent in this case. Whilst the Bachs can be assured of a hearing date in QCAT in the near future it is unknown how long the matter would take to be ready for hearing or indeed be heard in a court.
[68] This is an unsatisfactory situation for the Bachs who commenced this application in 2007.
[69] Majestic can, if they choose to, seek recovery of any loss against Chandra in another jurisdiction.
[70] Taking into account the balancing interests of both parties in all the circumstances I consider it appropriate to dismiss the application for joinder.
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