Body Corporate for London Woolstores Apartments & ors v Queensland Building Services Authority
[2011] QCAT 86
•15 March 2011
| CITATION: | Body Corporate for London Woolstores Apartments & Ors v Queensland Building Services Authority [2011] QCAT 86 |
| PARTIES: | Body Corporate for London Woolstores Apartments Community Titles Scheme 35188 Mr Michael John Hill Mr Bruce Cobb McKenzie |
| v | |
| Queensland Building Services Authority |
| APPLICATION NUMBER: | GAR154-10 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Mr Kenneth Barlow SC, Member |
| DELIVERED ON: | 15 March 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Leyshon Properties Pty Ltd and J Hutchinson Pty Ltd each be joined as a respondent in this proceeding. |
| CATCHWORDS: | Practice and procedure – Queensland Civil and Administrative Tribunal – Joinder of parties – Whether person ought be joined as respondent – Where order sought that present respondent issue direction to rectify to proposed respondent – Queensland Civil and Administrative Tribunal Act 2009, s 42(1) Buildng and construction – Applicaton to review a decision of the Queensland Building Services Authority not to issue a direction to rectify – Whether the person to whom a direction to rectify might issue ought be joined as a respondent – Queensland Building Services Authority Act 1991, ss 72, 86 |
APPEARANCES and REPRESENTATION (if any):
| This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). |
REASONS FOR DECISION
Introduction
On 14 March 2011, I made an order that each of Leyshon Properties Pty Ltd (“Leyshon”) and J Hutchinson Pty Ltd (“Hutchinson”) be joined as a respondent in this proceeding. The order was made urgently, as there was to be a compulsory conference on 16 March 2011. Those parties (and the existing parties) needed to know whether they had to attend that conference. I made the order on the basis that I would later publish my reasons, which I now do.
Background
The applicants in the proceeding are the body corporate and two owners of units in a community titles scheme, which was developed by Leyshon in the old London Wool Stores building in Teneriffe. Leyshon engaged Hutchinson to undertake the building works that gave rise to the scheme.
The applicants contend that the building leaks in many places as a result of defective building work. They complained to the first respondent (“the QBSA”) and requested that it issue a direction to rectify, under s 72 of the Queensland Building Services Authority Act 1991 (the “QBSA Act”), to each of Leyshon and Hutchinson. On 23 April 2010, the QBSA informed the applicants that it declined to issue a direction to rectify to Hutchinson. In that letter, it did not deal with the request to issue a direction to rectify to Leyshon. In essence, the QBSA determined that the items complained about were not defective building works and therefore no direction to rectify should be issued.
This proceeding is an application, pursuant to s 86 of the QBSA Act, to review the QBSA’s decision. In the application, the orders which the applicants seek include an order that the QBSA direct Hutchinson and Leyshon, or either of them, to rectify defective building work.
The applicants now seek an order, pursuant to s 42 of the Queensland Civil and Administrative Tribunal Act 2009 (the “QCAT Act”), that each of Leyshon and Hutchinson be joined as a respondent. Nobody opposes the joinder of Hutchinson as a respondent. However, Leyshon opposes its own joinder.
Applicants’ submissions
The applicants contend that Leyshon ought to be joined because it falls within each of the paragraphs of s 42(1) of the QCAT Act, namely:
(a) it ought be bound by, or have the benefit of, a decision of the tribunal in the proceeding; or
(b) its interests may be affected by the proceeding; or
(c) for another reason, it is desirable that it be joined as a party to the proceeding.
The applicants contend that Leyshon is a “person who carried out the building work”. Although it was not the builder, they contend that it falls within that term because it is “a person who, for profit or reward, carried out the building work” (s 72(5)(d) of the QBSA Act) or it is “a principal who was the contracting party for a building contract for building work for a building, or part of a building, intended for sale” and otherwise falls within s 72(5)(g) of the QBSA Act. They also contend that it falls within s 72(11)(a)(ii), in that it was a person who caused building work to be carried out and therefore it falls within s 72(5)(d).
As they seek relief in this proceeding which, if granted, would affect the rights of Leyshon, the applicants contend that Leyshon should be bound by, or (should the application not succeed in respect of it) have the benefit of, a decision of the tribunal in this proceeding, or its interests may be affected by the proceeding. They also contend that it is desirable that Leyshon be joined as a party to the proceeding because, if it were not and a direction to rectify were issued to it, then it might seek to re-litigate the issues in this proceeding by challenging the direction to rectify. Alternatively, it might be prevented from doing so, as it would not be a party with a right of appeal from the decision of this tribunal. In all the circumstances, the applicants contend, it is appropriate that Leyshon be joined.
Leyshon’s submissions, and discussion
Leyshon opposes its joinder. It says it is not a person that should be bound by, or have the benefit of the decision, because the tribunal does not have jurisdiction over it in order to enable the tribunal to make an order against it. It says that this is the case because:
(a) the defects did not result from building works within the scope of the building contract;
(b) the decision under review does not name it; and
(c) it does not fall with s 72 of the QBSA Act.
As to the first of these grounds, Leyshon contends that the defects complained of did not result from building work carried out under, and within the scope of, the building contract between it and Hutchinson. Therefore, no direction to rectify could be issued to it. It also contends that, in some respects, the applicants’ complaint is time barred under s 72(8) of the QBSA Act.
To my mind, these are contentions which are certainly arguable and they could be put in defence of the application. But they are not matters which can be determined by the tribunal on an interlocutory application such as this. They are the obverse of the applicants’ contentions. Both parties’ contentions in this respect can only be decided with the benefit of evidence that is fully tested, and complete submissions, such as will be heard at a final hearing.
As to the second of the above grounds, Leyshon contends that, because the original decision of the QBSA makes no reference to it, there is no decision from which an application to review may be brought in respect of Leyshon.
As to this ground, the applicants note that the original complaint to the QBSA sought directions against both Leyshon and Hutchinson. The QBSA failed to issue a direction to rectify to either of them and therefore its decision in all respects is the subject of this application.
In reply, Leyshon submits that that submission ignores the fact that this is an application to review a decision not to issue a direction to rectify, which requires the satisfaction of the elements contained in s 72 of the QBSA Act in order for such a discretion to be capable of being exercised. Leyshon again asserts that the defects complained of did not result from building work carried out under a building contract, and that it does not fall within s 72.
The original complaint was against both Hutchinson and Leyshon. Therefore, in failing to issue a direction to rectify, the QBSA has made a decision which is reviewable in respect of both those companies. Whether or not its decision was right is the subject of this proceeding.
In my opinion, Leyshon’s contentions in reply are also matters that can only be determined after a final hearing.
Leyshon also contends that it is not a person whose interests may be affected by this proceeding. It submits that, for the purposes of s 42(1)(b) of the QCAT Act, the relevant consideration is whether the interests of the proposed respondent may be affected by the proceeding itself, and not only by the outcome of the proceeding – that is, the decision in the proceeding. It says that there is no evidence that Leyshon’s interests may be affected by the proceeding itself. The applicants’ submissions (Leyshon says) are limited in this regard to the possible effect of the outcome of the proceedings. Leyshon submits that, at its highest, its interests may only be affected by an outcome of the proceeding, and only if the tribunal were to make an order against it, and this is not sufficient for the purposes of s 42(1)(b) of the QCAT Act.
In this respect, Leyshon relies upon two decisions: that of Mr Wensley QC in Comfortable Homes Pty Ltd v QBSA [2001] QBT 61, and the recent decision of Ms Stilgoe in Mackay v QBSA [2010] QCAT 381.
In the former decision, Mr Wensley QC said (at p8), in respect of the equivalent section (to s 42) under the former Queensland Building Tribunal Act:
“As to section 45(1)(b), it does not seem to me that the proceedings i.e. the application to review an administrative decision of the Authority, is something which affects the interests [of the proposed respondent]. Note that this subparagraph does not, as does subparagraph (a), speak of an order which the Tribunal might make; rather it speaks of the proceedings itself.”
There are two crucial differences between Comfortable Homes and this case. First, the relevant paragraph of the Act was different, in that s 45(1)(b) of the former Act provided for the circumstance that the person’s interests “are” affected by the proceeding. In contrast, s 42(1)(b) of the QCAT Act provides for the circumstance that the person’s interests “may be” affected by the proceeding. The current test is not as high as the former test was. The tribunal need only be satisfied that the proposed respondent’s interests may be affected by the proceeding.
Secondly, in Comfortable Homes, no orders were sought in respect of the proposed new respondent. In contrast, the applicants in this case expressly seek an order that a direction to rectify be issued to Leyshon.
Mackay v QBSA was closer, in terms of the facts (and, of course, the law) to this case. In that case, the owners of a house sought to review a decision of the QBSA to withdraw a direction to rectify that had been addressed to the builder. The QBSA and the builder had compromised an application for review by the builder. The owners sought an order that the builder be joined as a party to their application.
Ms Stilgoe adopted the analysis of Mr Wensley QC quoted above and expressed the view that it was the outcome of the proceeding which may affect the builder’s position, not the proceeding itself. She declined to join the builder as a respondent.
To my mind, where the order sought in this proceeding is directly related to Leyshon, its interests certainly may be affected by the proceeding. I disagree, with respect, with the distinction that was drawn by Mr Wensley QC and by Ms Stilgoe, between paragraphs 42(1)(a) and (b). A person can only be bound by, or have the benefit of, a decision in a proceeding. However, paragraph (b) seems to me to be wider than paragraph (a). A person’s interests may be affected by the proceeding whether or not they are bound by a decision. If a person may be affected by the ultimate order in a proceeding, it seems to me that that person’s interests may be affected by the proceeding.
Leyshon finally contends that it is not desirable to order its joinder pursuant to s 42(1)(c). This is on the grounds, in essence, that Leyshon did not cause any defects and, as such, the discretion to order that a direction to rectify be issued to it ought not be exercised.
It seems to me that this submission again raises issues that will ultimately be for determination in the proceeding and cannot be determined by the tribunal on this application. It suffices to say that it is possible that the tribunal would order that a direction to rectify be issued to Leyshon. It is certainly arguable that it falls within s 72 and therefore an opportunity for the exercise of the discretion to make such an order may arise.
Decision
In my view, Leyshon ought be joined as a respondent to this proceeding, for a number of reasons.
First, whether it is a person who falls within s 72, whether there are defects and whether a direction to rectify ought be issued to it, and all of the factual and legal issues that would lead to a decision on those questions, are all matters which may affect its interests. It ought be bound by a decision, if the decision is against it. Correspondingly, it ought have the benefit of a decision if it is in its favour.
Secondly, because the ultimate decision of the tribunal in this proceeding may well affect its interests, I consider that Leyshon is a person whose interests may be affected by the proceeding.
Thirdly, there is considerable force in a submission by the applicants that the objects of the QCAT Act, to have the tribunal deal with matters in a way that is accessible, fair, just, economical and quick and to promote the quality and consistency of tribunal decisions (paragraphs 3(b) and (c) of the QCAT Act), are best met by having all parties whose interests may be affected by a final order in this proceeding as parties in the proceeding. Thus, they will each have the opportunity to call evidence and to make submissions, directed to the outcome of the proceeding, on one occasion and before one tribunal member.
It seems to me important that Leyshon be a party to this proceeding. If it were not, and an order were made that a direction to rectify be issued to it, it may well seek to challenge such a direction to rectify and, at that opportunity, seek to call evidence and make detailed submissions about the facts and the law. Those submissions and any such evidence should be given in this proceeding, so that one body on one occasion may make one decision as to all relevant facts and law.
Therefore, I consider that Leyshon falls within each of the paragraphs of s 42(1).
Discretion
Leyshon contends that, even if I am satisfied that it falls within one or more of the paragraphs of s 42(1), I ought exercise my discretion not to order that it be joined. It supports that submission on the ground that it did not cause any defects, either because any defects are referable to work undertaken on the building in the 1920s, or because Hutchinson was the designer and builder and any direction to rectify ought only be issued to the person who carried out the work.
Again, these submissions raise the substantive issues that arise (or are likely to arise, depending on the ultimate grounds of Leyshon’s defence if joined) in the proceeding. They are not matters that can be determined on this application.
In all the circumstances discussed above, I consider that Leyshon ought be joined as a respondent in this proceeding. There are no countervailing reasons sufficient to cause me to exercise my discretion against making such an order.
Order
For these reasons, I ordered that each of Leyshon Properties Pty Ltd and J Hutchinson Pty Ltd be added as a respondent in this proceeding.
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