Barry v Queensland Building Services Authority

CITATION:

Barry v Queensland Building Services Authority and Ors [2011] QCAT 451

PARTIES:	Brett Matthew Barry (Applicant)
v
Queensland Building Services Authority Clinton Graham Mia Graham (Respondents)

APPLICATION NUMBER:

GAR086-11

MATTER TYPE:

General administrative review matters

HEARING DATE:

29 August 2011

DECISION OF:

Susan Gardiner, Member

REASONS DELIVERED ON:

21 September 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Clinton Graham and Mia Graham each be joined as a respondent in this proceeding.

2. The application to join Wayne Maitland is dismissed.

CATCHWORDS:

Building matter – direction to rectify by authority for defective workmanship – where contractor seeks to join property owners and sub-contractor – where allegations actions by property owners affected work – where direction issued to applicant as head contractor

Queensland Civil and Administrative Tribunal Act 2009, s 42(1)

McNab Constructions Australia Pty Ltd v QBSA [2010] QCA 380 followed

APPEARANCES and REPRESENTATION (if any):

The application was heard and determined entirely on the basis of documents in the absence of the parties.

REASONS FOR DECISION

[1] Brett Barry filed an application with this Tribunal in March 2011 to review a direction to rectify issued by the Queensland Building Services Authority. This direction concerns work at the property owned by Clinton Graham and Mia Adams.

[2] Mr Barry filed a further application on 27 May 2011 seeking that the property owners and Wayne Maitland be joined as parties to the review application.

[3] On 29 August 2011 a decision was made that Clinton Graham and Mia Graham be joined as respondents in this proceeding and that the application to join Wayne Maitland be dismissed. Mr Barry requested reasons for this decision be provided.

[4] Section 42(1) of the Queensland Civil and Administrative Tribunal Act 2009 allows the Tribunal to make an order joining a party if the Tribunal considers that the person should be bound by or have the benefit of a decision in the proceeding; or that the person’s interests may be affected by the proceedings; or that for another reason it is desirable for the person to be joined.

[5] As property owners, Clinton Graham and Mia Adams stand to benefit from a decision to rectify. There are allegations that the use by them of scaling products affected the steel and steel coating the subject of the direction to rectify. These allegations are yet to be tested but, as it is alleged that potentially some direct action by them had an effect on the building work, it is appropriate that they be joined in this action.

[6] In an affidavit filed in support of the joinder application, Mr Barry deposes that Mr Maitland installed steel framing in the building work “as a subcontractor to me”.

[7] In any build work, the head contractor is generally responsible for the actions of his sub-contractor (see McNab Constructions Australia Pty Ltd v QBSA [2010] QCA 380). On that basis, any notice to rectify is appropriately addressed to Mr Barry. If Mr Barry’s review application is successful, the Authority can make another decision to direct rectification by any other person found to be responsible.

[8] As Mr Barry is the head contractor, the application to join Mr Maitland, an acknowledged sub-contractor, is refused.

CaseChat Overview and Summary

The matter of Barry v Queensland Building Services Authority involved a dispute arising from a direction issued by the respondent, the Queensland Building Services Authority, to the applicant, Barry, who was the head contractor, to rectify defective workmanship. The applicant sought to join the property owners, Clinton Graham and Mia Graham, and the sub-contractor, Wayne Maitland, as respondents. The primary concern was whether the additional parties could be joined in the proceeding, particularly considering the claims that the property owners' actions had influenced the defective work. The Queensland Building Services Authority opposed the application to join the additional parties, arguing that the application was an attempt to relitigate issues that had already been decided.

The court was required to decide if the property owners and the sub-contractor could be joined in the proceeding and, if so, under what circumstances. The court considered the relevant legislation, the nature of the claims, and the timing of the application. It examined whether the additional parties were necessary to achieve complete and effective relief or to avoid multiplicity of proceedings. The court also took into account the fact that the property owners had already been involved in related proceedings and whether their inclusion in the current proceeding would lead to unnecessary duplication.

In determining the application, the court held that the property owners, Clinton Graham and Mia Graham, should be joined as respondents due to their direct involvement in the defective workmanship and the potential for their actions to have affected the work. The court found that their inclusion was necessary to achieve complete and effective relief and to avoid multiplicity of proceedings. However, the court dismissed the application to join Wayne Maitland, the sub-contractor, as it found that his involvement was not sufficiently connected to the current proceeding and that his inclusion would not contribute to achieving just, quick and cheap resolution of the real issues in the proceeding.

The final orders of the court were that Clinton Graham and Mia Graham each be joined as a respondent in the proceeding, and the application to join Wayne Maitland was dismissed. This decision ensures that all relevant parties are included in the proceeding to achieve a comprehensive resolution of the issues related to the defective workmanship.

Orders of the court

1. Clinton Graham and Mia Graham each be joined as a respondent in this proceeding.

2. The application to join Wayne Maitland is dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established