Lightfoot v Temple Pty Ltd
[2010] QCAT 399
•19 August 2010
| CITATION: | Lightfoot v Temple Pty Ltd [2010] QCAT 399 |
| PARTIES: | Mr Adrian Michael Lightfoot & Janice Lightfoot |
| v | |
| Kenneth Temple & Temple Pty Ltd ACN110718539 & Julie-anne Temple |
| APPLICATION NUMBER: | BD141-07 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Ann Fitzpatrick – Member |
| DELIVERED ON: | 19 August 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | It is ordered that: (a) Temple Builders Pty Ltd ACN 110718539; and (b) Julie-Ann Temple Be joined as second and third respondents to these proceedings respectively. |
| CATCHWORDS : | Joinder of Parties; section 53 Commercial and Consumer Tribunal Act 2003; section 42 Queensland Civil and Administrative Tribunal Act 2009. |
APPEARANCES and REPRESENTATION (if any):
| Decision on the papers. |
REASONS FOR DECISION
This is an application to join Temple Builders Pty Ltd and Julie-Ann Temple as a partis to this proceeding. The application was originally filed in the Commercial and Consumer Tribunal on 21 October 2009. The matter is a pending proceeding in accordance with s.256 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). This Tribunal must deal with the application before it in accordance with s.271 of the QCAT Act.
The Tribunal has had reference to the following:
a) Application to join Temple Builders Pty Ltd and Julie-Ann Temple filed 21 October 2009.
b) Statement of Glendon Francis Young, undated, filed 21 October, 2009.
c) Submissions of the Applicant, dated 10 June 2010
d) Submissions of the Respondent, dated 12 July 2010
e) Statement of Kenneth Temple, dated 12 July 2010
f) Statement of Julie-Ann Temple, dated 12 July 2010
g) Statement of Adam Nathanial Brown, dated 12 July 2010
h) Reply submissions of the Applicant, filed 30 July 2010
Further submissions in reply of the Respondent Kenneth Temple, filed 4 August 2010
Issues
It is a matter of contention between the parties as to who the Applicant contracted with when they entered into a residential building contract, dated 28 March 2005.
The builder is recorded on the master builder’s residential building contract document as Kenneth Temple, trading as Ken Temple Building ABN 30990312575; BSA license number 31717.
A business name search of Ken Temple Building, appearing at exhibit GFY 9 to the statement of Glendon Francis Young filed 21 October 2009 reveals that as at the date of the contract Kenneth Temple Building was a registered business name bearing registration number BN18240598, carried on by Kenneth Temple, Julie-Ann Temple and Christopher Temple.
The business names extract reveals that all persons ceased carrying on business as Kenneth Temple Building on 1 October 2004. From 1 October 2004 Temple Builders Pty Ltd ACN 110718539 carried on the business of Ken Temple Building.
The material records that on 28 April 2005 Temple Builders Pty Ltd secured a policy under the statutory insurance scheme in relation to the building work subject to the contract.
The Australian Business Number (ABN) shown on the building contract purportedly the ABN of Ken Temple Building appeared to be the ABN of what is described as a limited partnership between the Respondent Ken Temple and his wife Julie-Ann Temple.
The material also records that around the time of entry into the contract in question the respondent was in the process of changing the way in which he conducted his business as builder, from trading as a partnership with his wife to trading as a corporation. That may have given rise to the confusion on the relevant document. However the question as to parties to the contract at all relevant times through the course of the contract and when the various causes of action arose is a matter which can only properly be determined at a hearing.
10. The Applicant has expressed an intention to proceed against the proposed parties, whether in this proceeding or by separate proceedings.
11. It is submitted that substantially the same question involves the Respondent and the proposed parties. That being the proper identity of the contracting party.
Finding
12. I am satisfied that there is a sufficient reason in accordance with s.53 of the Commercial and Consumer Tribunal Act 2003 and s.42 of the QCAT Act for the proposed parties to be joined as parties to this proceeding, to ensure that all issues are ventilated in the one proceeding.
Orders
13. I order that:
a) Temple Builders Pty Ltd ACN110718539; and
b) Julie-Ann Temple
Be joined as second and third respondents to these proceedings respectively.
14. I also order that all parties attend the compulsory conference set down before this Tribunal at 9:30am on 20 August, 2010.
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