Bennelong Group Pty Ltd v Bicam Constructions Pty Ltd

[2010] QCAT 226

CITATION: Bennelong Group Pty Ltd v Bicam Constructions Pty Ltd & Ors [2010] QCAT 226

PARTIES:	Bennelong Group Pty Ltd
v
Bicam Constructions Pty Ltd Mr Earle Howard Griffen LU Griffen International Pty Ltd AWT Consulting Engineers Pty Ltd

APPLICATION NUMBER:   BD080-09     

MATTER TYPE: Building matters

HEARING DATE:     25 May 2010

HEARD AT:  Brisbane

DECISION OF: Ms Anne Forbes

DELIVERED ON:  On the papers

DELIVERED AT:      Brisbane

ORDERS MADE:

1.    The Applicant serve each of the proposed Respondents designated as the Fifth, Sixth, Seventh and Eighth Respondents with the substantive application, the Application for joinder and all documents filed in the proceedings.

2.    The application for joinder is adjourned pending the filing of an affidavit of service by the Applicant.

3.    The Fifth to Eighth Respondents have liberty to respond to the application within 14 days of service.

4.    The directions hearing on 16 June 2010 is vacated.

CATCHWORDS :  Joinder of parties.

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Bennelong Group Pty Ltd
RESPONDENT:	Bicam Constructions Pty Ltd Mr Earle Howard Griffen LU Griffen International Pty Ltd AWT Consulting Engineers Pty Ltd

REASONS FOR DECISION

1. The Applicant [“Bennelong”] is the registered proprietor of land at Agnes Water.  In 2004, under a building contract with the First and/or Second Respondents, the latter agreed to build for Bennelong, and eventually built a residential dwelling on the land. The Third Respondent was engaged to carry out architectural design and documentation of the dwelling. The Fourth Respondent carried out structural and civil design and certified that the works complied with the design.  Bennelong claims that the dwelling has serious defects related to both construction and design that are costly to remedy and has commenced action in QCAT for damages in the order of $900,000.

1. Associated with the project according to Bennelong were:

• the Bundaberg Regional Council  a local government authority acting as a private certifier under the Building Act 1975 whose officers were charged with carrying out final inspection of the dwelling;
• Grose Bradley Pty Ltd;
• Bligh Voller Nield Pty Ltd; and
• James Grose,

all of whom were severally retained with respect to the design, preparation and contract administration for the project.

1. In an amended Statement of Claim Bennelong charges the proposed additional Respondents variously with a failure to carry out the works for which they were retained, in accordance with relevant laws, or with necessary skill and care, or misleading conduct, thus causing the alleged defects.

1. Bennelong now makes application for joinder of the above as Fifth to Eighth Respondents respectively.  Mr Croft, solicitor for Bennelong, explains in his supporting affidavit that Bennelong became aware only recently via the Respondents’ witness statements, of the involvement of the additional parties in the subject building project.  Mr Griffen who speaks for himself and as director of the First and Third Respondents consents to the proposed joinder.

1. Section 42 of the Queensland Civil and Administrative  Tribunal Act 2009 [“the Act”] permits a tribunal to order a person to be joined as a party if satisfied that the person should be bound by or have the benefit of the tribunal's decision or that the person’s’ interests may be affected by the proceeding.

1. Prima facie, the proposed Fifth to Eighth Respondents may be found liable in the claim or otherwise have an interest in the proceeding.  However, there is no evidence that all or any of them have been notified of the application for joinder or the substantive application. They should have an opportunity to be heard.

1. I direct that:-

1. The Applicant serve each of the proposed Respondents designated as the Fifth, Sixth, Seventh and Eighth Respondents with the substantive application, the Application for joinder and all documents filed in the proceedings.

1. The application for joinder is adjourned pending the filing of an affidavit of service by the Applicant.

3. The Fifth to Eighth Respondents have liberty to respond to the application within 14 days of service.