QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Klug v PW Woods (Builders) Pty Ltd [2019] QCAT 159
PARTIES: MICHAEL KLUG (applicant)
v
P W WOODS (BUILDERS) PTY LTD (respondent)
APPLICATION NO/S:
BDL254-18
MATTER TYPE:
Building matters
DELIVERED ON:
4 June 2019
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Senior Member Brown
ORDERS: 1. From Concept to Completion Designs Pty Ltd is joined as a respondent.
2. That part of the proceeding against P W Woods (Builders) Pty Ltd is dismissed.
3. Michael Klug must file in the Tribunal two (2) copies and give to From Concept to Completion Designs Pty Ltd one (1) copy of an amended application for domestic building disputes, by 4:00pm on 18 June 2019.
4. Michael Klug must file must file in the Tribunal an Affidavit of Service or other evidence that the application was served on From Concept to Completion Designs Pty Ltd in accordance with QCAT Practice Direction 8 of 2009, by 4:00 pm on 25 June 2019.
5. From Concept to Completion Designs Pty Ltd must file in the Tribunal two (2) copies and give to Michael Klug one (1) copy of a response, by 4:00pm on 16 July 2019.
6. The matter is listed for a Compulsory Conference on a date to be advised.
CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JOINDER OF CAUSES OF ACTIONS AND PARTIES – PARTIES – GENERALLY – whether appropriate to join person as joint tortfeasor – where arguable that single ‘guiding mind’ behind contracting party and party sought to be joined – where arguable that contracting party and party sought to be joined are a single corporate organism – whether arguable that claim against proposed respondent a building dispute
Corporations Act 2001 (Cth), s 601AD(1).
Domestic Building Contracts Act 2000 (Qld) s 8(1), sch 2
Queensland Building and Construction Commission Act 1991 (Qld) s 77(1), sch 2
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 42(1).REPRESENTATION:
Applicant:
Self-represented
Respondent:
Self-represented
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
Mr Klug and PW Woods (Builders) Pty Ltd (‘PWW’) entered into a contract for the construction of a residential dwelling. The parties fell into dispute. Mr Klug says that the building works were not performed in conformity with the contract, that certain items of work are defective requiring rectification and that certain items of work are incomplete.
PWW is deregistered. Mr Klug has applied to join a respondent, From Concept to Completion Designs Pty Ltd (‘CCD’). The application for joinder falls for determination.
The factual background
The parties entered into a ‘Construction Management Contract’ on 19 June 2012.[1] The starting date for the works was one week after the approval of the plans and the completion date twelve weeks thereafter.
[1]Attachment 9 to Application for domestic building disputes filed 24…
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- Case
- [2019] QCAT 159
- Decision Date
CaseChat Overview and Summary
The court considered the arguments presented by the applicant, which included the close business connection between PWW and CCD, commonality between the directors and shareholders of both entities, and the interchange of assets to enable the operation of the family business. The court noted that the principles for identifying joint tortfeasors require a concurrence in the act or acts causing damage, not merely a coincidence of separate acts which by their conjoined effect cause damage. The court also considered the requirement for a common design or concerted action between the parties.
The court found that the applicant had not articulated a cause of action against CCD in relation to which the tribunal had jurisdiction. The applicant had no contractual relationship with CCD, and it was not contentious that the building work was performed by PWW. The court concluded that CCD should be joined as a party, as it was arguable that CCD was a single corporate organism with PWW or that there was a common guiding mind between the two entities. The court also found that it was arguable that the claim against CCD was a building dispute, which fell within the jurisdiction of the tribunal.
From Concept to Completion Designs Pty Ltd is joined as a respondent. The part of the proceeding against PW Woods (Builders) Pty Ltd is dismissed. Michael Klug must file in the Tribunal two copies and give to From Concept to Completion Designs Pty Ltd one copy of an amended application for domestic building disputes by 4:00pm on 18 June 2019. Michael Klug must file in the Tribunal an Affidavit of Service or other evidence that the application was served on From Concept to Completion Designs Pty Ltd in accordance with QCAT Practice Direction 8 of 2009, by 4:00 pm on 25 June 2019. From Concept to Completion Designs Pty Ltd must file in the Tribunal two copies and give to Michael Klug one copy of a response by 4:00pm on 16 July 2019. The matter is listed for a Compulsory Conference on a date to be advised.
Orders
Orders of the court
1. From Concept to Completion Designs Pty Ltd is joined as a respondent.
2. That part of the proceeding against P W Woods (Builders) Pty Ltd is dismissed.
3. Michael Klug must file in the Tribunal two (2) copies and give to From Concept to Completion Designs Pty Ltd one (1) copy of an amended application for domestic building disputes, by 4:00pm on 18 June 2019.
4. Michael Klug must file must file in the Tribunal an Affidavit of Service or other evidence that the application was served on From Concept to Completion Designs Pty Ltd in accordance with QCAT Practice Direction 8 of 2009, by 4:00 pm on 25 June 2019.
5. From Concept to Completion Designs Pty Ltd must file in the Tribunal two (2) copies and give to Michael Klug one (1) copy of a response, by 4:00pm on 16 July 2019.
6. The matter is listed for a Compulsory Conference on a date to be advised.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
The applicant’s submissions may be summarised thus:(a)The construction contract was performed by PWW;(b)PWW undertook the works ‘as part of the family business also operating’ CCD;(c)The ‘Woods family” used PWW as the contracting entity;(d)There is commonality, to some extent, between the directors and shareholders of PWW and CCD;(e)PWW and CCD ‘interchanged assets’ to enable the operation of the family business;(f)PWW and CCD operated from the same premises at all times relevant to the present dispute;(g)There was a very close business connection between PWW and CCD;(h)The collective operations of PWW and CCD might be described as the operations of CCD;(i)PWW and CCD acted in concert to operate the family business;(j)Mr Peter Williams was the ‘guiding mind’ of PWW and CCD;(k)CCD should be considered jointly liable for any damages to which the applicant may be entitled. Consideration Once a company is deregistered it ceases to exist as a legal entity.[6] Unless PWW is reinstated, the applicant’s claim against PWW cannot proceed. Indeed, the proceeding as presently framed is susceptible to being immediately dismissed.[6]Corporations Act 2001 (Cth), s 601AD(1). The parties to the building contract were the applicant and Camila Klug and PWW. The applicant had no contractual relationship with CCD. The submission by the applicant that CCD ‘should be considered jointly liable for any damages eventually ordered to be paid’ is made on the basis that it is ‘the family business led by Peter William Woods. The applicant must be able to articulate a cause of action against CCD in relation to which the tribunal has jurisdiction. That action cannot be in contract for the reasons I have stated. The applicant concedes that CCD did not perform the building work the subject of the dispute. It is not contentious that the building work was performed by PWW. A homeowner may be entitled to pursue a claim against a builder in negligence for damages for breach of duty of care by the builder in the performance of building works. The duty of care owed in tort is, generally speaking, concurrent with the duties under the relevant contract. Here the applicant had no contract with CCD and CCD did not perform the building works. The applicant approaches the matter from a somewhat different angle. He submits that CCD should be joined as a respondent on the basis it is a joint tortfeasor. The applicant relies upon the decision of Burley J in Seiko Epson Corp v Calidad Pty Ltd (‘Seiko Epson’)[7]. Seiko Epson involved a claim for trademark infringement. Burley J considered the relevant authorities in relation to the liability of joint tortfeasors in the following passage:[8][7](2017) 133 IPR 1.[8]Ibid, 87 – 89 [440].The principles going to the liability of a joint tortfeasor are not in dispute. Each party referred to the decision of Moshinsky J in Playgro Pty Ltd v Playgo Art & Craft Manufactory Ltd (2016) 335 ALR 144; 117 IPR 489; [2016] FCA 280, which at [150]–[153] usefully extracts the relevant principles:150 The liability of a joint tortfeasor was considered in Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574; 141 ALR 1. Brennan, Dawson and Toohey JJ said (at CLR 580; ALR 4):As was said in The Koursk [[1924] P 140 at 159–160], for there to be joint tortfeasors “there must be a concurrence in the act or acts causing damage, not merely a coincidence of separate acts which by their conjoined effect cause damage”. Principal and agent may be joint tortfeasors where the agent commits a tort on behalf of the principal, as master and servant may be where the servant commits a tort in the course of employment. Persons who breach a joint duty may also be joint tortfeasors. Otherwise, to constitute joint tortfeasors two or more persons must act in concert in committing the tort.151 In the same case, Gummow J said (at CLR 600; ALR 19):In England, Australia and New Zealand, criteria for the identification of joint tortfeasors are to be found in expressions used in The Koursk. Scrutton LJ there spoke of “two persons who agree on common action, in the course of, and to further which, one of them commits a tort”, saying that in such a case there is one tort committed by one of them “in concert with another”. Sargant LJ accepted the proposition that persons are joint tortfeasors when their “respective shares in the commission of the tort are done in furtherance of a common design” so that those who “aid or counsel, direct, or join” in commission of the tort are joint tortfeasors.(footnotes omitted)152 In Universal Music Australia Pty Ltd v Cooper (2005) 150 FCR 1; 65 IPR 409; [2005] FCA 972, which involved allegations of copyright infringement, Tamberlin J said (at [135]–[136]): 135The authorities indicate that in order to make out a case of joint tortfeasor liability on the basis that copyright infringement is a statutory tort, it is necessary to establish that there has been a common design by the respondents to participate in or induce or procure another person to commit an act of infringement. In WEA International Inc v Hanimex Corp Ltd (1987) 17 FCR 274at 283; 77 ALR 456at 465; 10 IPR 349at 359, Gummow J points out that in circumstance where two or more persons assisted or concurred in or contributed to an act causing damage this is not of itself sufficient to found joint liability and there must also be some common design. In other words, there must be something in the nature of concerted action or agreed common action. It is not necessary that there must be an explicitly mapped out plan with the primary offenders. Tacit agreement between the parties is sufficient: see Unilever plc v Gillette (UK) Ltd [1989] RPC 583 at 609 per Mustill LJ; Molnlycke AB v Procter & Gamble Ltd (No 4) [1992] 1 WLR 1112; [1992] 4 All ER 47at 52; [1992] RPC 21 at 29 per Dillon LJ (with whom Leggatt LJ agreed). In Intel Corporation v General Instrument Corporation (No 2) [1991] RPC 235 at 241, Aldous J stated that:that capacity to control will not establish a common design. It is the extent of the control actually exercised or the involvement which is relevant and, in particular, whether it amounts to a common design to do the acts complained of.136The relevant authorities were considered by the High Court in Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574at 580–1; 141 ALR 1at 4–5, where the joint judgment referred to the necessity for two or more persons to act in concert in committing the tort. At 600, Gummow J cited with approval the comment of Sargent LJ in The Koursk [1924] P 140 at 159–60 that persons are joint tortfeasors when their respective shares in the commission of the tort are done in furtherance of a “common design” so that those who aid or counsel, direct or join in the commission of the tort are joint tortfeasors. 153 See, on appeal, Cooper v Universal Music Australia Pty Ltd (2006) 156 FCR 380; 237 ALR 714; 71 IPR 1; [2006] FCAFC 187 at [87] per Branson J, [173] per Kenny J. In Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd (2016) 329 ALR 522; 121 IPR 150; [2016] FCAFC 22, Nicholas, Yates and Wigney JJ set out the above passage from Universal Music v Cooper and said (at [142]): We respectfully agree with Tamberlin J’s summary of the authorities. We would add that it is not necessary that the parties to the common design intend to infringe. As Mustill LJ (with whom Ralph Gibson and Slade LLJ agreed) observed in Unilever Plc v Gillette (UK) Ltd [1989] RPC 583 at 602, it is not necessary to show “a common design to infringe … it is enough if the parties combine to secure the doing of acts which in the event prove to be infringements”: see also Unilever v Chefara Properties Ltd [1994] FSR 135 at 138.See also Caterpillar Inc v John Deere Ltd (1999) 48 IPR 1; [1999] FCA 1503 at [21]–[25] per Carr, Sundberg and Kenny JJ.