Boral Resources (Vic) Pty Ltd v Robak Engineering and Construction Pty Ltd - [1999] VSCA 66

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted
No. 5922 of 1997

BORAL RESOURCES (VIC) PTY. LTD.
Appellant (Plaintiff)

v.
ROBAK ENGINEERING AND
CONSTRUCTION PTY. LTD.

First Respondent

(Defendant)

and

FOSTER HALL PTY. LTD. Second Respondent
(Third Party)

No. 4272 of 1998

FCH CONSULTING PTY. LTD.

Appellant

(Defendant)

v.
WIMMERA-MALLEE RURAL WATER
AUTHORITY

First Respondent

(Plaintiff)

and

R&L TANK FABRICATIONS PTY. LTD. Second Respondent
(Third Party)

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JUDGES: TADGELL, BATT and CHERNOV, JJ.A.
WHERE HELD: MELBOURNE
DATES OF HEARING: 24-25 February 1999
DATE OF JUDGMENT: 20 May 1999
MEDIA NEUTRAL CITATION:

[1999] VSCA 66 1st Revision – 2 July 1999
--- ---

PRACTICE and PROCEDURE - "Building action" - Building Act 1993 (Vic), ss. 129, 131- 33 - Whether third party a "defendant" within the meaning of s.131(1) - General Rules of Procedure in Civil Proceedings, r.9.06(b)(ii) - Whether "just and convenient" in the circumstances to add third party as defendant - Where plaintiff opposes application for joinder - Other relevant factors - Legislative history.
DAMAGES - "Building action" - Joint and several liability - Proportionate liability - No operation if only one defendant in a "building action" - Building Act 1993 (Vic), ss.131(1), 132, 133.

---

APPEARANCES: Counsel Solicitors
For the Appellants
Boral Resources (Vic) Pty. Mr. A.G. Uren, Q.C. and Ebsworth & Ebsworth
Ltd. Mr. J.A.H. Foxcroft
FCH Consulting Pty. Ltd. Mr. G.J. Digby Q.C. and Tress Cocks & Maddox
Mr. J.M. Forrest
For the Respondents
Robak Engineering & Dr. C.S. Pannam, Q.C. and Deacons Graham & James
Construction Pty Mr. F.J.J. Tiernan

Ltd./Wimmera-Mallee Rural Water Authority
No appearances for the secondnamed respondent in each proceeding.

TADGELL, J. A.:

Having had the benefit of studying drafts of the reasons of the other members of the Court, I agree that the learned primary judge’s application of the relevant provisions of the Building Act 1993 was correct. I do not wish to add to what their Honours have said on that aspect of the appeals.
I agree also that in each case the application under Rule 9.06(b)(ii) for an order adding the third party as a defendant should have been acceded to below, and that each appeal should therefore be allowed. Since we are differing from the judge on this question, I wish to express shortly in my own words my understanding of the scope of Rule 9.06(b)(ii) in the context of these cases; and I shall do so without rehearsing the facts or the terms of the Act or the rule, all of which have been set out by Chernov, J.A.
In each case a sole plaintiff (P) has sued a single defendant (D) for damages in a “building action” within the meaning of s.129 of the Building Act 1993. With a view to relying on s.131 of that Act, D in each case wishes to raise, as between D and another - whom I shall for convenience call X - and to have determined in the action, the question of their individual liabilities (if any) to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] VSCA 66
Decision Date: 20 May 1999

CaseChat Overview and Summary

The case of Boral Resources (Vic) Pty Ltd v Robak Engineering and Construction Pty Ltd was heard by the Victorian Court of Appeal. The dispute revolved around the interpretation and application of jurisdictional requirements in a proceeding initiated by Boral against Robak. Boral sought to add Foster Hall and R&L as additional defendants in the proceedings, arguing that these entities were integral to the dispute. The primary issue before the Court was whether the trial judge correctly exercised his discretion to add the additional defendants, and whether the jurisdictional requirements were satisfied to permit such an addition.

The legal issues central to this appeal were the interpretation of the jurisdictional provisions, the exercise of discretion by the trial judge, and the conditions under which additional parties could be added to existing proceedings. The Court had to determine if the trial judge erred in not considering the addition of Foster Hall and R&L as defendants, and whether there were sufficient grounds to justify such an inclusion based on the jurisdictional criteria. The Court also needed to examine whether the trial judge's decision aligned with the statutory requirements and whether it was just and equitable to add the additional defendants.

In its decision, the Court of Appeal found that the trial judge did not adequately consider the jurisdictional requirements when deciding not to add Foster Hall and R&L as defendants. The Court held that the trial judge should have exercised his discretion in a manner that allowed for the inclusion of these parties, given their significant involvement in the dispute. The Court concluded that the trial judge's failure to consider the addition of these parties was a misapplication of the jurisdictional provisions. As a result, the Court allowed both appeals and ordered that Foster Hall and R&L be added as defendants in the relevant proceeding, thereby setting aside the decision of the trial judge.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In all the circumstances, therefore, his Honour should have held that it would be "just" to have the relevant question determined as between Boral and Foster Hall as well as between Robak and Boral. In those circumstances, the conclusion would follow that the jurisdictional requirements of sub-paragraph (ii) have been made out, and that the order sought by Boral ought to have been made. For like reasons, I come to the same conclusion in relation to the application by FCH to add R&L as defendant. Conclusion In my view, for the above reasons, both appeals should be allowed and the Court should order that each of Foster Hall and R&L be added as defendant in the relevant proceeding.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

APPEARANCES:	Counsel	Solicitors
For the Appellants
Boral Resources (Vic) Pty.	Mr. A.G. Uren, Q.C. and	Ebsworth & Ebsworth
Ltd.	Mr. J.A.H. Foxcroft
FCH Consulting Pty. Ltd.	Mr. G.J. Digby Q.C. and	Tress Cocks & Maddox
Mr. J.M. Forrest
For the Respondents
Robak Engineering &	Dr. C.S. Pannam, Q.C. and	Deacons Graham & James
Construction Pty	Mr. F.J.J. Tiernan
Ltd./Wimmera-Mallee Rural Water Authority