Link v The Home Away from Home Inc

[2025] WASC 303

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   LINK -v- THE HOME AWAY FROM HOME INC [2025] WASC 303

CORAM:   STRK J

HEARD:   ON THE PAPERS

DELIVERED          :   1 AUGUST 2025

FILE NO/S:   CIV 2102 of 2024

BETWEEN:   SIMON LINK

Plaintiff

AND

THE HOME AWAY FROM HOME INC

Defendant

Catchwords:

Practice and procedure - Application for leave to issue third party notice - Exercise of discretion - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 19 r 1, r 2

Result:

Leave to issue third party notice granted

Representation:

Counsel:

Plaintiff	:	No appearance
Defendant	:	No appearance

Solicitors:

Plaintiff	:	Maurice Blackburn
Defendant	:	HWL Ebsworth Lawyers (Perth)

Cases referred to in decision:

Fernandez v Villaneuva [2004] WADC 32

Godfrey v Berresford [2012] WASC 77

Melros Developments Pty Ltd v Ribble Pty Ltd (1996) 16 SR (WA) 143

Pioneer Concrete (NT) Pty Ltd v Watkins Ltd (1983) 48 ALR 365

Tipperary Developments Pty Ltd v The State of Western Australia [2005] WASC 75

Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 5] [2016] WASC 58

STRK J:

Introduction

1. The defendant has applied by chambers summons pursuant to the Rules of the Supreme Court 1971 (WA) O 19 r 2 for leave to issue a third party notice to Doric Contractors Pty Ltd (ACN 080 922 498). The application was served on the plaintiff, and the plaintiff and the defendant agree that the application should be determined on the papers.

2. The application is supported by the affidavit of Teagan Rose Moore sworn on 23 July 2025, a legal practitioner employed by HWL Ebsworth Lawyers, the solicitors for the defendant in the proceeding. The affidavit meets the requirements of the Rules of the Supreme Court O 19 r 2(2). Ms Moore annexed to that affidavit five documents, which included an ASIC current company extract for Doric Contractors obtained on 19 July 2025; and correspondence sent by HWL Ebsworth Lawyers to the directors of Doric Contractors on 24 June 2025 in which, among other things, the defendant's claim against Doric Contractors was summarised, and Doric Contractors was put on notice of the defendant's intention to commence third party proceedings against it.

3. For these reasons, I consider that it is appropriate that the defendant be granted leave to issue the third party notice.

The nature and status of the proceeding

1. As required by the Rules of the Supreme Court O 19 r 2(2)(a) and (b), the affidavit of Ms Moore states the nature of the claim made by the plaintiff in the action and the stage which proceedings within the action have reached.

2. By a writ of summons filed on 17 September 2024 the plaintiff commenced a claim against the defendant for damages in respect of personal injuries, loss and damage alleged to have been sustained as a consequence of exposure to mould in the course of his employment with the defendant at Ronald McDonald House, in Nedlands (RM House). In summary, the plaintiff alleges that he was employed by the defendant as a maintenance coordinator and worked in that capacity at RM House from August 2020; while at RM House the most prevalent building maintenance issues he had to deal with as part of his regular duties were leaks, water damage and the presence of mould; he was regularly exposed to mould as a result of extensive water damage; while performing his duties as a maintenance coordinator he inhaled or ingested quantities of mould particles, spores, mould fragments and mould containing dusts; as a result of inhaling and/or ingesting the same he developed chronic hypersensitivity pneumonitis and psychiatric/psychological sequalae; the injuries were caused by the negligence and/or breach of statutory duties by the defendant; and as a result of the injuries he has suffered pain and suffering and loss of enjoyment of life expectancy, loss of earning capacity, loss of capacity to care for himself without assistance, and incurred and will continue to incur medical, chemist and travelling expenses.  He claims damages, interest and costs from the defendant.

3. The action was entered into the Commercial and Managed Cases List on 15 October 2024.

4. The defendant filed and served a defence to the plaintiff's claim on 13 May 2025 and pleadings have closed. The plaintiff and the defendant have also served their respective lists of discoverable documents.

5. While Ms Moore's affidavit did not include a description of the defendant's pleaded defence, I note that in summary, among other things, the defendant denies that it was negligent or breached its duty of care to the plaintiff. Further, the defendant pleads that if the plaintiff suffered the injuries, loss and damage as alleged in the statement of claim (which is not admitted), the injuries, loss and damage were caused or contributed to by the plaintiff's failure to take reasonable care for his own safety or own negligence, and any award of damages should be reduced in accordance with s 4(1) of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA); and pleads that the plaintiff's cause of action was not commenced within the requisite period and therefore cannot be commenced or maintained.

The nature of the claim made by the applicant or particulars of the question or issue required to be determined, as the case may be, and the facts on which the proposed third party notice is based

1. As required by the Rules of the Supreme Court O 19 r 2(2)(c), the affidavit of Ms Moore states the nature of the claim made by the applicant, and the facts on which the proposed third party notice is based.

2. Among other things, Ms Moore deposed to her belief that the defendant and Doric Contractors entered into a Construction Contract on 2 May 2014, and among other things describes the various contractual warranties made by Doric Contractors (as Contractor under the Construction Contract) in favour of the defendant (as Principal under that contract).

3. Ms Moore further described the defendant's claims in the following terms:[1]

   (a)Doric constructed RM House in such a manner that caused waterproofing issues and elevated mould levels in some rooms (Defects);

   (b)Doric failed to take effective action to rectify the Defects once the Defendant provided it with a report from Advanced Building Inspections dated 20 April 2021 which outlined amongst other things moisture issues, mould growth, water behind floor sheeting, unsealed flooring, unsealed screen walls, toilet pan sealant failure, poorly constructed falls in the wet area floors allowing water to pool or escape across rooms. …

   (c)Doric failed to take effective action to rectify the Defects once the Defendant provided it with a report from Airborne Building Solutions dated 19 May 2021 which outlined amongst other things the mould issues in RM House. …

   (d)Doric breached the Contractor's Warranties in that Doric did not amongst other things perform the WUC with the degree of professional skill, care and diligence expected of a prudent, competent and experienced Contractor performing work of a nature similar to the WUC or perform the WUC in accordance with Good Industry Practices and relevant standards and code;

   (e)the Defects resulted from Dorie's breach of the Contractor's Warranties;

   (f)if the Plaintiff suffered the Injuries from inhaling and/or ingesting quantities of mould particles, spores, mould fragments and mould containing dusts (which the Defendant denies), and if the Defendant is liable to the Plaintiff for his Injuries (which the Defendant has not admitted), the Defendant has suffered damages caused by Dorie's breach of the Contractor's Warranties under the Construct Contract.

   [1] Affidavit of TR Moore sworn 23 July 2025, par 11.

4. In addition, in her affidavit Ms Moore recorded that the defendant claims that the Construction Contract contains a contractual indemnity in favour of the defendant which responds to the plaintiff's claim; reproduced parts of cl 15.1 of the General Conditions to the Construction Contract (headed 'Indemnity by Contractor'); recorded that it is the defendant's position that if the plaintiff has suffered injuries from inhaling and/or ingesting quantities of mould particles, spores, mould fragments and mould containing dusts (which the defendant has not admitted), then the plaintiff's claim is in respect of personal injury or illness arising out of, of or in connection with the carrying out by Doric Contractors of 'WUC (from work under the contract)' (as that term is defined in the Construction Contract), at RM House or activities for which Doric Contractors was responsible, and was directly or indirectly associated with 'the Works' (as that term is defined in the Construction Contract).

5. The defendant claims that Doric Contractors is obligated to indemnify the defendant for the plaintiff's claim.

Identification of the proposed third party

1. As required by the Rules of the Supreme Court O 19 r 2(2)(d), the affidavit of Ms Moore records the name and address of Doric Contractors.

Disposition

1. The Rules of the Supreme Court 1971 (WA) O 19 r 1(1) relevantly provides that where in any action a defendant who has entered an appearance claims against any person not already a party to the action (in O 19 called the third party):

   (a)that the defendant is entitled to contribution or indemnity; or

   (b)that the defendant is entitled to any relief or remedy relating to or connected with the original subject matter of the action and substantially the same as some relief or remedy claimed by the plaintiff; or

   (c)that any question or issue relating to or connection with the original subject matter of the action is substantially the same as some question or issue arising between the plaintiff and the defendant and should probably be determined not only as between the plaintiff and the defendant but also as between either or both of them and the third party,

   then, subject to subrule (2), the defendant may issue a third party notice containing a statement of the nature of the claim made against the defendant and, as the case may be, either of the nature and grounds of the claim made by the defendant or of the question or issue required to be determined.

2. As was observed by Le Miere J in Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 5] [2016] WASC 58 at [7]:

   The purpose of the rules relating to third party proceedings is succinctly stated in Civil Procedure Western Australia:

   Their purpose, … is firstly to bind the third party to the decision between the plaintiff and the defendant. Otherwise the defendant would be at the great disadvantage of having fought the case against the plaintiff and lost, of having to fight the case again against the third party on different materials with the risk of the same question being answered differently. Secondly, the procedure saves the expense of separate actions. Finally, it enables the question between the defendant and the third party to be decided promptly so that the defendant is able to enforce his or her judgment against the third party while the plaintiff is enforcing his or her judgment against the defendant [19.0.1].

3. As the defendant did not issue a third party notice to Doric Contractors before it served its defence on the plaintiff, it may not now issue a third party notice without the leave of the court: Rules of the Supreme Court O 19 r 1(2).

4. The grant or refusal of leave involves the discretionary judgement of the court and much depends upon the convenience of having all related issues tried at the same time, as opposed to any inconvenience or prejudice which may be occasioned to the parties, having regard to the stage which the action has reached and having regard to other relevant matters: Tipperary Developments Pty Ltd v The State of Western Australia [2005] WASC 75 at [22].[2]

   [2] As discussed in LexisNexis, Civil Procedure Western Australia (at 31 July 2025) [19.2.1].

5. Where issues concerning a third party are related to the issues between the parties, it has also been said that the interests of justice will ordinarily be served by joining third party proceedings to the trial of the principal litigation: Tipperary Developments Pty Ltd v The State of Western Australia at [23] ‑ [24]; Godfrey v Berresford [2012] WASC 77 at [23].

6. In all of the circumstances I am satisfied that leave should be granted to the defendant to issue a third party notice to Doric Contractors.

7. First, in this case, the defendant claims to be entitled to a contractual indemnity from Doric Contractors.

8. In determining whether a claim falls within the Rules of the Supreme Court O 19 r 1(1), the court is not required to consider in detail the merits of the case nor to weigh evidence. The appropriate forum for this to occur is at trial where a final determination can be made.[3] That said, for present purposes I note the nature of the defendant's claim as against Doric Contractors, and that with respect to O 19 r 1(1)(a), the words 'indemnity' and 'contribution' are to be read as referable to (among other things) those cases where a right of indemnity arises from contract express or implied.[4]

   [3] As discussed in LexisNexis, Civil Procedure Western Australia (at 31 July 2025) [19.1.2], citing Fernandez v Villaneuva [2004] WADC 32 [39].

   [4] As discussed in LexisNexis, Civil Procedure Western Australia (at 31 July 2025) [19.1.2], citing Pioneer Concrete (NT) Pty Ltd v Watkins Ltd (1983) 48 ALR 365, 371 ‑ 372 and Melros Developments Pty Ltd v Ribble Pty Ltd (1996) 16 SR (WA) 143, 148.

9. Secondly, having regard to the nature of the plaintiff's claim against the defendant, and the nature of the defendant's claim of indemnity against Doric Contractors on which the proposed third party notice is based, the grant of leave would appear to promote the convenience of having all related issues tried at the same time, and avoid multiplicity of legal proceedings.

10. Thirdly, while pleadings have closed, the action is not ready to be entered for trial. The orders made by the court on 18 June 2025 provide for the plaintiff to serve on the defendant a schedule of damages for the purposes of a mediation conference by 15 October 2025, and for action to be referred to mediation. Subject to any party seeking the re‑listing of the action for further directions, by the consent of the parties the action is next listed for directions on 18 December 2025.[5] In this case, the grant of leave does not appear to likely be disruptive of the course of the action, nor significantly delay them if the usual third party directions are given.

    [5] Order 32 of the orders made on 23 June 2025.

11. Fourthly, I note that the plaintiff did not seek to be heard in opposition to the grant of leave.

12. Finally, if Doric Contracting takes issue with the grant of leave, I am cognisant that (if appropriate) a conditional appearance may be filed and an order sought setting aside the third party notice by the procedure contemplated by the Rules of the Supreme Court O 12 r 6; the grant of leave does not bind the court at a later stage to give third party directions (where refusal to give such directions necessarily brings the third party proceedings to an end); and proceedings on a third party notice may, at any stage of the proceedings, be set aside by the court pursuant to the Rules of the Supreme Court O 19 r 6.

Orders

1. In the summons for leave filed on behalf of the defendant, orders are sought in the following terms:

   1.The Defendant have leave to issue a Third Party Notice against Doric Contractors Pty Ltd (ACN 080 922 498) (Doric).

   2.By such date ordered by the Court, the Defendant serve on Doric:

   a.the Third Party Notice;

   b.a copy of the order;

   c.the Writ of Summons by which this action was commenced and any pleadings served in the action.

   3.The third party proceedings be listed for a directions hearing.

   4.The costs of the application be costs in the cause of the third party proceedings.

2. Subject to the plaintiff or the defendant within three business days of the publication of these reasons seeking to be heard in relation to the form of orders, I propose to make orders 1, 2 and 4 as promoted by the defendant, save that order 2 shall provide that within seven days of the making of the orders, the defendant is to attend to service.

3. I do not propose to make an order in the form of proposed order 3, which presumes the filing of an unconditional appearance, and no default of appearance on the part of Doric Contractors. Instead, the procedure as set out in the Rules of the Supreme Court O 19, including r 4 and r 5, ought govern the conduct of the third party proceedings.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CR

Associate to the Honourable Justice Strk

1 AUGUST 2025