Goldberg Construction Pty Ltd v Queensland Building and Construction Commission

[2025] QCAT 352

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:	GOLDBERG CONSTRUCTION PTY LTD V QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION & ORS [2025] QCAT 352
PARTIES:	GOLDBERG CONSTRUCTION PTY LTD (applicant)
v
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent) BRYAN FULCHER (respondent) JENNIFER FULCHER (respondent)
APPLICATION NO/S:	GAR099-23
MATTER TYPE:	General administrative review matters
DELIVERED ON:	8 September 2025
HEARING DATE:	22 July 2025
HEARD AT:	Brisbane
DECISION OF:	Member Lee Benjamin
ORDERS:	The application for miscellaneous matters (joinder) filed 11 April 2025 is refused.
CATCHWORDS: JOINDER OF PARTIES TO A PROCEEDING - BUILDING AND CONSTRUCTION GENERALLY - parties whose interests may be affected by the proceeding - whether discretion to join should be exercised - discretion to join not exercised Queensland Civil and Administrative Tribunal Act2009, s42 Saad v Cassar Homes (Aust) Pty Ltd [2014] QCAT 416 Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority (No 2) [2012] QCATA 242 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

REASONS FOR DECISION

What is this decision about?

1. The Applicant seeks to have CSB Paradise Point Development Pty Ltd and CSB Developments Pty Ltd (collectively, CSB) be joined as respondents to this proceeding (Joinder Application). The Applicant contends that its Joinder Application should be accepted to avoid a duplicity of proceedings. The Applicant says that it is likely that further applications, dealing with the same subject matter, as the present application, will be necessary if CSB is not otherwise joined here. CSB has been given an opportunity to be joined and declined to do so. The Respondents neither consent nor object to the Joinder Application. The question for the Tribunal is whether, after balancing the advantages and disadvantages of joining CSB to the proceeding, it ought to exercise its discretion to do so. In my view, the answer is, no.   

What happened?[1]

[1]The Commission’s submissions dated 23 June 2025 helpfully set out uncontroversial background facts in para [5] – [10].  A modified version of the same is reproduced here.

1. On or around 6 February 2020, the Applicant entered into a contract with CSB Paradise Point Development Pty Ltd (the developer for the project) to perform construction works on the Property.

2. On or around 2 March 2021, CSB Paradise Point Development Pty Ltd entered into a Contract for Residential Lots in a Community Titles Scheme with Bryan Fulcher and Jennifer Fulcher, the Second and Third Respondents to the proceeding, for the purchase of Unit 1 at the Property.

3. On 24 January 2023, the Queensland Building & Construction Commission (Commission) issued Direction to Rectify No. 0110334, which required the Applicant to perform rectification work for three complaint items (Internal Review Direction).

4. On 8 February 2023, the Applicant filed an application to review the Commission’s Internal Review Direction in the Tribunal.

5. An issue that has arisen in this proceeding is whether the works the subject of two of these complaint items, specifically, items two and three of the Internal Review Direction, were carried out by the Applicant or CSB. The Applicant strongly contends that these items were carried by CSB.[2]

   [2]See Applicant’s submissions dated 10 April 2025 in para [2].

6. On 19 December 2023, the Commission filed a statement of evidence by the sole Director of CSB, Mr Daniel Lee, in support of the Commission’s position that it made the correct and preferable decision. As such, the sole Director of CSB is already a witness for the Commission in this proceeding.

7. The Applicant currently has two other related applications (GAR134-24 and GAR566-23) in the Tribunal. On 5 February 2024, the Applicant sought to have these matters consolidated with its application in GAR099-23. The Tribunal declined the Applicant’s request. Instead, the Tribunal directed that GAR099-23 and GAR134-24 be heard and determined together.

8. On 10 April 2025, the Applicant filed its Joinder Application in relation to CSB. The application was accompanied by short submissions in support of the same. The Applicant also relies on evidence already filed by the parties in the proceedings.

9. On 2 June 2025, the Tribunal directed the Respondents to provide submissions in response to the Applicant’s Joinder Application. The Commission did so, briefly, on 23 June 2024.

What questions need to be answered?

1. The Tribunal must consider two questions in determining whether to permit parties to be joined in a proceeding.[3]

   [3]Saad v Cassar Homes (Aust) Pty Ltd [2014] QCAT 416 at [4] – [10].

2. The first question is whether one of the circumstances set out in subsection 42(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) applies. In order words, does the Tribunal consider 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.

3. The second question is whether the Tribunal should exercise its discretion to join the parties:

   (a)having regard to the objects of the QCAT Act, including having the Tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick;

   (b)balancing whether joinder would add to the complexity of the matter, lengthen the duration of the hearing in a significant way or delay the hearing date of the proceeding; and

   (c)there being some utility or purpose in the joinder, such as that the joinder would avoid duplication of the litigation or multiplicity of proceedings in other proceedings in the Tribunal.

What are the answers to the questions?

1. In my view (and I find) that:

   (a)the answer to the first question is that the conditions in subsection 42(1) of the QCAT Act are satisfied for CSB to be joined in this proceeding; and

   (b)the answer to the second question is that the Tribunal should not exercise its discretion to join CSB.

Why are these the answers to the questions?

1. There is no controversy that the conditions in subsection 42(1) of the QCAT Act are fulfilled in this case. On the Applicant’s and Commission’s submissions, I accept that there is a possibility that CSB may be affected by a decision made in the proceeding. The Applicant contends, correctly, in my view, that CSB should be provided with procedural fairness, to be properly heard on issues that may affect it. As such, joining CSB as respondent to the proceeding would enable it to ventilate its position in respect of the relevant issues.

2. However, CSB has been provided with procedural fairness in this case. CSB has already been given the opportunity to be joined as respondent to the proceeding and has effectively declined to do so.  As a witness for the Commission in the proceeding, Mr Daniel Lee appears to be aware of the issues in dispute, including that the Applicant contends that CSB is responsible for some of the subject building work.[4]  In these circumstances, it is a difficult submission that CSB suffers prejudice in not being joined.

   [4]See Commission’s submissions dated 23 June 2025 in para [18] and [19]. 

3. In any case, past Tribunals have expressed a reluctance to join parties in proceedings against their will. It is not usually in the interests of justice to do so. As the Commission points out in their submissions, including ‘parties in contentious litigation without their consent is a serious matter and will not be done lightly’.[5] I find that this consideration weighs against the Tribunal exercising its discretion to join CSB to the proceeding.  

   [5]See Commission’s submissions dated 23 June 2025 in para [18] referring to Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority (No 2) [2012] QCATA 242 at [14].

4. There are several other factors that militate against the Tribunal exercising its discretion to join CSB in this case:

   (a)Significant cost and time delays: in these proceedings, considerable time delays, resulting from interlocutory applications and party extension of time requests, have already blown out the timeline to progress the matter to resolution. Joining CSB would likely add substantial financial costs and time delays to the proceedings, given that (i) the other parties to the proceeding (including the Respondents) would likely need to file fresh evidence and material in reply to any evidence filed by CSB; (ii) additional hearing days (including directions and preparation time) will likely be necessary; and (iii) a longer hearing time will likely delay listing the final hearing.

   (b)No adequate explanation for delay in making Joinder Application: the proceedings have been on foot since February 2023. The Second and Third Respondents were joined in May 2023. Despite this, the Applicant appears to have waited until April 2025 to file its Joinder Application, at a stage when the dispute is already well progressed. The Applicant does not appear to have articulated an explanation for this delay.

   (c)Unnecessary complexity in the proceedings: the Commission submits that joining CSB as a party at this stage may also add some complexity to the proceeding, as new issues may be raised by the parties. In my view, these submissions understate the degree of complexity here. The Tribunal has already directed that two separate, but related, applications, be heard and determined together. By joining CSB, there would be five respondents across the same. This would appear to present legal and procedural complications for each party (including self-represented parties) in dealing with multiple parties’ evidence and submissions, including on new issues. This will likely result in unnecessarily unwieldly proceedings. This is inconsistent with the Tribunal’s statutory objectives for proceedings to be accessible, fair, just, economical, informal and quick.

   (d)Duplication of proceedings may be necessary and otherwise unavoidable: the Applicant and Commission have both foreshadowed the possibility of further litigation depending on the outcome in the applications on foot, if CSB is not joined. While I can readily accept, in theory, that joining parties as respondents may avoid a potential multiplicity of proceedings, that is not always the case in practice.  The statutory schema for reviewing Commission decisions arguably invites multiple applications to the Tribunal across separate but related matters. Here, the Applicant already has three such applications on foot in the Tribunal, two of which are being considered together. In short, there is already a multiplicity of proceedings on foot. Depending on the outcomes in the same, parties will take whatever steps they feel are necessary to protect or advance their interests, whether in the Tribunal or in another forum. On balance, I do not consider that joining CSB cures the possibility of further litigation in the Tribunal, which may be necessary and otherwise unavoidable in this case. Even if I am wrong about that, such a finding does not outweigh the other factors set out above.         

5. Overall, while I readily accept there is some utility in joining CSB in the proceeding, a balance must be struck with the possibility that joining CSB will likely add further complexity, length, delay and issues for determination to a proceeding that has already been on foot since early 2023. There is no explanation for the Applicant’s several years’ delay in seeking to join CSB. In the final analysis, the disadvantages of joining CSB to the proceedings outweigh the advantages. This finding is even more compelling given that CSB has effectively declined to be joined.

6. The Joinder Application is refused.