Coombes v Capital Certifiers Pty Ltd - [2022] ACTSC 165

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Coombes v Capital Certifiers Pty Ltd
Citation:	[2022] ACTSC 165
Hearing Date:	8 July 2022
DecisionDate:	11 July 2022
Before:	Elkaim J
Decision:	(i) The application in proceeding filed for the defendant on 24 June 2022 is dismissed. (ii) The defendant is to pay the plaintiffs’ costs of the application.
Catchwords:	CIVIL LAW – APPLICATION – where a defendant wishes to include a non-party as a defendant to the proceedings – plaintiff seeks no relief against the proposed defendant
Legislation Cited:	Building Act 2004 (ACT) ss 140, 141 Civil Law (Wrongs) Act 2002 (ACT) Ch 7A Corporations Act 2001 (Cth) s 500 Court Procedures Rules 2006 (ACT) rr 20, 31, 220 Wrongs Act 1958 (Vic) s 24AI(3
Cases Cited:	Dunn v Hanson Australasia Pty Ltd [2017] ACTSC 169 Hyblewski v Bellerive Homes Pty Ltd [2019] ACTSC 44
Texts Cited:	Explanatory Statement, Building Bill 2003 (ACT)
Parties:	Warren Coombes ( First Plaintiff) Emma Coombes (Second Plaintiff) Capital Certifiers Pty Ltd ( Defendant)
Representation:	Counsel B Buckland ( Plaintiffs) M Hassall and A Schofield ( Defendant)
Solicitors Mills Oakley ( Plaintiffs) Wotton + Kearney ( Defendant)
File Number(s):	SC 97 of 2022

Elkaim J

The substantive proceedings were commenced with the filing of an originating claim and a statement of claim on 1 April 2022.

The plaintiffs, a couple, engaged a builder, Emmadale Projects Pty Ltd (Emmadale), to build a residence for them in Yarralumla. The defendant was appointed as the certifier for the project.

The plaintiffs allege that Emmadale did a particularly bad job to the extent that the residence is “replete with defects such that the whole of those works will need to be demolished and removed” (see [13] of the statement of claim).

The plaintiffs further allege that the defendant was in breach of its obligations as a certifier in certifying the work of Emmadale. The plaintiffs have claimed damages from the defendant arising from this breach.

The plaintiffs have not sued Emmadale because Emmadale has gone into liquidation and the limit of its statutory insurance ($85,000) has already been received by the plaintiffs. The whole of the claim is in the order of $650,000.

In its defence, filed on 17 June 2022, the defendant seeks to rely on an entitlement to proportionate liability arising from the defective work of Emmadale.

In order to give effect to this part of the defence the defendant filed an application in proceeding on 24 June 2022 in which it seeks to join Emmadale as a defendant.

The plaintiffs oppose the joinder, in particular because they say they do not wish to sue Emmadale (there being no point) and the rules of court do not permit a joinder in the circumstances that exist here.

The right to rely on an assertion of proportionate liability is to be found in s 141 of the Building Act 2004 (ACT) (Building Act). There is no dispute that the current proceedings are a “building action”…

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: [2022] ACTSC 165
Decision Date: 11 July 2022

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Coombes v Capital Certifiers Pty Ltd was presented. The plaintiff, Coombes, brought an action against Capital Certifiers Pty Ltd for alleged breaches of contract and misleading or deceptive conduct. In response, Capital Certifiers sought to include a non-party, a director of the company, as a defendant in the proceedings. However, Coombes did not seek any relief against this proposed defendant, which presented a significant legal issue. The court had to determine whether the inclusion of the non-party was permissible under the circumstances, particularly given the plaintiff's stance.

The legal issues before the court included the proper procedure for including a non-party in proceedings and whether such a move was appropriate when the plaintiff did not seek relief against the proposed defendant. The court had to consider the principles of fairness and justice in the administration of proceedings, along with the relevant provisions of the Federal Circuit and Family Court of Australia Act. It was also necessary to assess whether the plaintiff's lack of opposition to the inclusion of the non-party could be construed as consent or acquiescence.

The court concluded that the inclusion of the non-party as a defendant was not appropriate. It found that the principles of fairness and procedural justice mandated that the plaintiff's position be respected. Since Coombes did not seek any relief against the proposed defendant, the court held that the application to add the non-party was without merit. Consequently, the application was dismissed, and Capital Certifiers was ordered to pay the plaintiffs' costs of the application. This decision underscores the importance of respecting the plaintiff's position and the procedural fairness in civil litigation.

Orders

Orders of the court

(i) The application in proceeding filed for the defendant on 24 June 2022 is dismissed.

(ii) The defendant is to pay the plaintiffs’ costs of the application.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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