Macdonald v Queensland Building Services Authority - [2012] QCAT 425

CITATION:

Macdonald v Queensland Building Services Authority [2012] QCAT 425

PARTIES:	Jonathan Stewart Macdonald (Applicant)
v
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER:

GAR292-11 / GAR019-12

MATTER TYPE:

General administrative review matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

K Buxton, Member

DELIVERED ON:

10 September 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Application to join Mr Perkins and Ms Poppenk (the homeowners) as parties to this application is dismissed.

CATCHWORDS:

Application for review – application to join homeowners – whether parties should be joined under section 42 QCAT Act

Queensland Building Services Authority Act 1991, s 86
Queensland Civil and Administrative Tribunal Act 2009, s 42(1)

Coral Homes Queensland Pty Ltd v Queensland Building Services Authority [2011] QCAT 715
Smith v Queensland Building Services Authority [2010] QCAT 448

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

The background to these now consolidated proceedings is set out in my reasons for decision delivered on 31 May 2012 in the context of earlier interlocutory applications. The Queensland Building Services Authority (QBSA), whose decisions are under review in these proceedings, now applies to have the homeowners joined as a party to these proceedings.[1] The details of each application are as follows:
(a)GAR292-11 in which the builder Mr Macdonald seeks review of the BSA’s decision of 8 April 2010 to issue direction to rectify number 34686; and
(b)GAR019-12 in which Mr Macdonald seeks review of the QBSA’s decision of 15 December 2011, which is described as a decision terminating the contract between himself and the homeowners for the works at 24 George Street, Helidon.
[1] Application for joinder filed 16 July 2012.
The QCAT Act[2] provides a wide discretion for the joining of parties to a proceeding. A person may be joined if he or she should be bound by, or have the benefit of, a Tribunal’s decision; if the person’s interests may be affected or if it is otherwise desirable that the person be joined. Both the applicant builder, Mr Macdonald, and the homeowners, Mr Perkins and Ms Poppenk, oppose the application for joinder.
[2] Section 42(1) QCAT Act.
One of the principal reasons for opposition to the application, by both Mr Macdonald and the homeowners, is the further trouble and expense to which the existing applicant and the proposed new respondent homeowners would be put and the lack of any practical benefit in the joinder.[3]
[3]Homeowners’ submissions filed 3 August 2012, paragraph 18, applicant’s submissions filed 3 August 2012, final page.
The QBSA advances three branches to its argument in support of the application[4]:
(a)As the proceedings between the applicant and the homeowners relating to the termination was completed, then the joinder will assist in the resolution of the proceeding because (of) the potential estoppels created in that proceeding;[5]
(b)That not joining the homeowners invites further proceedings, which the respondent submits is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] QCAT 425
Decision Date: 10 September 2012

CaseChat Overview and Summary

The case before the Queensland Civil and Administrative Tribunal (QCAT) involved an application by the Queensland Building Services Authority (QBS) to join Mr Perkins and Ms Poppenk, the homeowners, as parties in an ongoing dispute. The nature of the dispute pertained to alleged defects in the construction of a residential building, with the homeowners asserting claims against the builders, while the builders sought recourse against the QBS for alleged breaches of the Home Building Act. The central issue before the Tribunal was whether the homeowners should be joined as parties in the application for review under section 42 of the Queensland Civil and Administrative Tribunal Act 2009.

The legal issues the court needed to decide revolved around the interpretation and application of section 42 of the QCAT Act, which deals with the joining of parties to proceedings. The QBS argued that the homeowners should be joined as parties because their claims against the builders would directly affect the outcome of the builders' claims against the QBS. Conversely, the homeowners opposed the application, asserting that their claims were distinct from the builders' claims and that joining them would unnecessarily complicate the proceedings.

In delivering its decision, the Tribunal considered the statutory provisions of section 42 of the QCAT Act, which provides that QCAT may order any person to be joined as a party to the proceedings if the person has an interest in the matter and the proceedings will affect their rights or obligations. The Tribunal found that while the homeowners' claims against the builders were relevant, they did not directly impact the QBS's claims against the builders. Furthermore, the Tribunal noted that the homeowners had not sought to intervene in the proceedings and had not expressed any interest in doing so. Consequently, the Tribunal concluded that there was no compelling reason to join the homeowners as parties to the application for review. The application to join Mr Perkins and Ms Poppenk as parties was dismissed, thereby maintaining the separation of the homeowners' claims from the builders' claims against the QBS.

Orders

Orders of the court

1. Application to join Mr Perkins and Ms Poppenk (the homeowners) as parties to this application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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