Geordie Lawrie trading as G and D Lawrie Builders v Queensland Building and Construction Commission
[2017] QCAT 379
•8 November 2017
CITATION: | Geordie Lawrie trading as G & D Lawrie Builders v Queensland Building and Construction Commission [2017] QCAT 379 |
PARTIES: | Geordie Lawrie trading as G & D Lawrie Builders |
| v | |
| Queensland Building and Construction Commission | |
APPLICATION NUMBER: | GAR118-17 |
MATTER TYPE: | General administrative review matters |
HEARING DATE: | 6 October 2017 |
HEARD AT: | Brisbane |
DECISION OF: | Member Olding |
DELIVERED ON: | 8 November 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | The application to join Limowi Pty Ltd trading as Harbour City Landscapes as a party to this proceeding is dismissed. |
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether desirable to order a person to be joined as a party to review proceeding – where applicant sought review of Direction to Rectify defects issued by Queensland Building and Construction Commission – where applicant sought to join third party alleged to be responsible for defective work – where remedial work already carried out Queensland Building and Construction Commission Act 1991 (Qld), s 72 |
APPEARANCES: | |
APPLICANT: | Geordie Lawrie trading as G&D Lawrie Builders |
RESPONDENT: | Queensland Building and Construction Commission |
PROPOSED PARTY: | Limowi Pty Ltd trading as Harbour City Landscapes |
REPRESENTATIVES: | |
APPLICANT: | represented by Mr A Eaton of McCarthy Durie Lawyers |
RESPONDENT: | represented by Mr M Robinson of Robinson Locke Litigation Lawyers |
PROPOSED PARTY: | represented by Mr C Mathison of Limowi Pty Ltd |
REASONS FOR DECISION
Mr Lawrie has applied for review of the respondent Commission’s decision to issue a Direction to Rectify alleged defects in building work he carried out.
Mr Lawrie says the defects are not from his work, but were caused by Limowi trading as Harbour City Landscapes (Limowi). He has therefore also applied for an order joining Limowi as a party to the review proceeding.
The Commission neither consented to nor opposed the application to join Limowi as a party, but assisted the Tribunal with written and oral submissions. Limowi opposed the application.
I have decided to dismiss the application to join Limowi as a party to the review proceeding. My reasons follow.
Statutory framework
Under s 42(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Tribunal may make an order joining a person as a party to a proceeding if the Tribunal considers that:
(a) the person should be bound by or have the benefit of a decision of the tribunal in the proceeding; or
(b) the person’s interests may be affected by the proceeding; or
(c) for another reason, it is desirable that the person be joined as a party to the proceeding.
Background
The application for review relates to an allegation that Mr Lawrie did not properly install a retaining wall at his customer’s property, leading to damage to the driveway.
Mr Lawrie maintains that the damage to the driveway resulted from leaks in pipes around a pool installed at the same time, or pipes linking the pool to a surge tank, for which he says Limowi was responsible. Limowi denies this.
Consideration
Before the hearing of the application to join Limowi, it occurred to me that a potentially significant issue would be whether, if Limowi were to be joined as a party, the Tribunal would have the power to set aside the decision to issue the Direction to Rectify to Mr Lawrie and substitute a decision to issue a Direction to Rectify to Limowi. I caused the Tribunal registry to advise the parties that submissions on this issue would be helpful.
Surprisingly, the parties’ researches did not uncover any previous case in which the issue had been considered. However, as matters have unfolded, it is not necessary to resolve that issue because, even assuming the Tribunal would have that power, I would not order that Limowi be joined as a party.
In the course of the hearing, it emerged that none of the representatives were able to advise whether the defects had now been remedied. I therefore made directions for statements to be obtained setting out the extent to which the remedial work had been carried out and these were duly filed subsequent to the hearing.
Those statements indicate that the bulk of the remedial work has already been carried out, including breaking up and disposal of concrete, new block work and the laying of a new driveway, at a cost of some $75,650. The only remaining work, according to a statement filed on behalf of Mr Lawrie, is “stencilling driveway” and “turf and yard prep” at an estimated cost of $6,270.
Accordingly, even if it were determined that the fault lay with Limowi (on which I make no observation), there would be unlikely to be any utility in the Tribunal now issuing a Direction to Remedy to Limowi. It was not suggested on behalf of Mr Lawrie that any other order binding Limowi might be made by the Tribunal in the review proceeding.
There might potentially be some advantage to Limowi in being a party to the proceeding. Its representative would be able to make submissions to the Tribunal rather than merely give evidence if called to do so. This was explained to Mr Mathison, who appeared on behalf of Limowi, but he maintained his submission that Limowi should not be joined.
Mr Lawrie would not be disadvantaged in the conduct of the hearing without Limowi being joined. If it is necessary for evidence to be obtained from Limowi, there are processes for compelling the giving of evidence and provision of materials where appropriate.
In those circumstances, I do not consider that it is desirable to order Limowi to be joined as a party.
0
0
2