Mair Renovations v Miller (No 2)
[2014] QCAT 506
•17 October 2014
| CITATION: | Mair Renovations v Miller (No 2) [2014] QCAT 506 |
| PARTIES: | Jeffrey Mair t/as Mair Renovations Pamela Mair t/as Mair Renovations (Applicants) |
| v | |
| Duncan Thomas Miller Genevieve Kay Miller (Respondents) |
| APPLICATION NUMBER: | BDL271-13 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 17 October 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Browne |
| DELIVERED ON: | 17 October 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application to join Robert Eccles and Robert Eccles Pty Ltd as a party to the proceeding is dismissed. |
| CATCHWORDS: | BUILDING DISPUTE – application for joinder – whether the party’s interests are affected – whether it is desirable for a party to be joined Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 42 Bach v Majestic Pools & Landscapes Pty Ltd [2010] QCAT 581, cited |
REPRESENTATIVES:
| APPLICANT: | Jeffrey Mair t/as Mair Renovations and Pamela Mair t/as Mair Renovations represented by Ms Aleksandra Kucharek, Solicitor, Daley Law Practice |
| RESPONDENT: | Duncan Thomas Miller and Genevieve Kay Miller represented by Mr Russell Ensbey, Solicitor, CBP Lawyers |
REASONS FOR DECISION
On 25 September 2014 the Tribunal made final orders dismissing an application for interim order filed by the applicants, Mair Renovations.[1]
[1]The Tribunal determined the application for interim order on the papers without an oral hearing as per directions made on 30 July 2014, see Mair Renovations v Miller [2014] QCAT 474.
On 17 October 2014 the Tribunal proceeded to hear an application for joinder of a party filed by the respondents, Duncan Miller and Genevieve Miller.
The Tribunal, in the decision dated 25 September 2014, provided an overview of the proceedings. In the interests of meeting the Tribunal’s objectives under s 3 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) to determine matters in a way that is ‘informal and quick’ and to promote the ‘quality and consistency of tribunal decisions’, the Tribunal relies on the same overview of the proceedings from the decision made on 25 September 2014, on the basis that the overview is relevant to the context in which the application for joinder has been made.
The applicants, Jeffrey Mair and Pamela Mair t/as Mair Renovations (Mair Renovations) are in the business of building. Jeffrey Mair is a registered builder and holds a licence under the Queensland Building and Construction Commission Act 1991 (Qld).
The respondents, Duncan Miller and Genevieve Miller are the registered owners of property at 11 Athlone Street, Woolloongabba (the property).
Duncan Miller and Genevieve Miller entered into a contract with Mair Renovations on or about 14 September 2010 to complete building work at the property for the contract price of $550,000.00. The contract was effectively to be performed in two stages in that work was to be completed to the upstairs and downstairs of the property. The contract was an Australian Building Industry Contract and was signed by Duncan Miller and Genevieve Miller on 14 September 2010 (the contract).[2]
[2]See statement of evidence filed on behalf of the applicant attachment marked ‘JM2’.
An architect, Robert Eccles Pty Ltd was appointed to administer the contract and to act as an agent for Duncan Miller and Genevieve Miller. The architect also acted as an independent certifier in relation to amongst others the payment for variations claimed by Mair Renovations.
Specifically the architect was authorised under clause J1 of the contract to give a written instruction for a ‘variation’ at any time before the date of practical completion. Clause A6 of the contract provides that the architect ‘appointed is the owner’s agent for giving instruction to the contractor. However, in acting as assessor, valuer or certifier, the architect acts independently, not as the agent of the owner’. Under clause A4 of the contract, Duncan Miller and Genevieve Miller as the owners were required to indemnify the contractor (Mair Renovations) ‘for any liability incurred by the contractor in respect of any default or negligence of the architect’.
During completion of the work a dispute arose between Mair Renovations and Duncan Miller and Genevieve Miller in relation to, amongst others, the works performed at the property and payment of money owing under the contract.
Mair Renovations commenced proceedings against Duncan Miller and Genevieve Miller for payment of works performed at the property. Duncan Miller and Genevieve Miller counter-claimed for the cost of rectifying alleged defective work and an amount for rental costs incurred and lost rental income in relation to the building work performed at the property.
The substantive proceeding (application BDL271-13) has been listed for a 5 day hearing before the Tribunal commencing on 17 November 2014.
The proceedings currently before the Tribunal were initially commenced in the District Court of Queensland on 1 August 2013 and were transferred to the Tribunal pursuant to s 53 of the QCAT Act on 31 October 2013.[3]
[3]Order of the District Court dated 31 October 2013.
One of the issues to be determined by the Tribunal in relation to the proceeding is whether the contract has been lawfully terminated. There are also issues to be determined in relation to variations alleged to be owing by Duncan Miller and Genevieve Miller and the cost of alleged defective work completed by Mair Renovations.
Duncan Miller and Genevieve Miller have filed an application to join Robert Eccles and Robert Eccles Pty Ltd (the architect) as respondents to the proceedings.[4]
[4]Application for miscellaneous matters filed on 15 July 2014.
Duncan Miller and Genevieve Miller raise the following contentions in the application for joinder:
1.It is appropriate that the proposed parties to be joined should be bound by, or have the benefit of, the decision by the Tribunal in these proceedings; and
2.It is desirable that the proposed parties to be joined be joined as a party to the proceedings so that a claim for indemnity by the Respondents against the proposed parties to be joined, in the event that the Applicant is successful with all or part of their claim, can be determined in the one proceeding and avoid the need for multiple proceedings with the possibility of inconsistent outcomes.
Written submissions have been prepared and filed by Duncan Miller and Genevieve Miller and the application for joinder was listed for an oral hearing in Brisbane on 17 October 2014 in accordance with directions made by the Tribunal on 25 September 2014.
In written submissions, filed Duncan Miller and Genevieve Miller contend that the architect failed to comply with ‘relevant clauses of the contract’ in certifying payment of variations that were required to be signed by Duncan Miller and Genevieve Miller before issuing the instruction to proceed. The respondents Duncan Miller and Genevieve Miller in the written submissions filed state:
In certifying payment of the variations claimed without obtaining the Respondents’ written approval, the architect acted contrary to the architect’s obligations pursuant to the contract.
The Respondents say they would not have signed any instruction to proceed in relation to the variations claimed by the Applicant had they received an instruction to proceed from the architect in relation to the variations claimed.
The conduct of the architect in that regard was negligent and/or in breach of the architect’s retainer.
It was an implied term of the architect’s retainer with the Respondents that the architect would carry out its duties and obligations as agents for the Repsondents and as independent certifier in accordance with the terms of the building contract between the Applicant and the Respondent.[5]
[5]Submissions by the respondents in support of the application for joinder of Robert Eccles and Robert Eccles Pty Ltd filed on 15 July 2014.
Duncan Miller and Genevieve Miller in written submission filed also raise issues in relation to whether they retained Robert Eccles personally or Robert Eccles Pty Ltd as the architect of the construction. Duncan Miller and Genevieve Miller state in written submissions filed that they were invoiced for work by ‘Robert Eccles Pty Ltd’ but ‘their dealings were with Robert Eccles’.[6]
[6]Ibid.
Further submissions in support of the application for joinder were made at the oral hearing by Mr Ensbey legal representative for Duncan Miller and Genevieve Miller. Mr Ensbey submits that the requirements of s 42 have been satisfied on the basis that the architect is a person who will be affected by the decision of the Tribunal; and that it is desirable that the architect be joined as a party to the proceeding.
Mr Ensbey contends that there are common considerations in particular questions of fact to be determined and in the event that the architect is not joined as a party to the proceeding there is a risk of multiplicity of proceedings. Mr Ensbey concedes that if the application for joinder is allowed it will be necessary for the Tribunal to make further directions for the filing and exchange of material and the hearing listed on 17 November 2014 will undoubtedly be adjourned.
Mr Ensbey contends that the proceeding may still be concluded within 5 days if the architect is joined. Notwithstanding, Mr Ensbey submits that the issues relevant to any costs in respect of the adjournment of the hearing and the possible increase in the number of hearing days, is outweighed by other considerations such as the advantage to have all of the issues in the matter including the role of the architect and whether the architect has acted in contravention of his obligations under the contract, to be dealt with in the same proceeding.
Mr Ensbey also made submissions at the oral hearing in relation to any perceived delay in bringing the application for joinder. Mr Ensbey submits that Duncan Miller and Genevieve Miller have at all times acted promptly and appropriately. Mr Ensbey identified in his submissions a relevant issue referred to as the ‘tipping point’ that Mr Ensbey contends was raised by Mair Renovations in the amended reply to defence filed on 14 July 2014. Mr Ensbey refers to paragraph 16B of the amended reply and defence that he submits raises issues relevant to the issue of termination of the contract, in particular that (as pleaded) the architect had extended the ‘10 day period’ pursuant to clause Q1 of the contract with the authority of Duncan Miller and Genevieve Miller and that the ‘extension had not expired at the date of the purported termination of the works contract’. Mr Ensbey submits that the parties are entitled to proceed on the basis of how they have framed their case and the substantial issue of termination goes to the heart of the counter-claim and was only pleaded by Mair Renovations on 14 July 2014.
The legal representative, Ms Kucharek, for Mair Renovations also made oral submissions at the oral hearing. Mair Renovations does not object to the application for joinder provided that the application for leave to join the architect does not result in an adjournment of the hearing scheduled on 17 November 2014. In relation to the contention made by Mr Ensbey on behalf of Duncan Miller and Genevieve Miller as to the ‘tipping point’ that he submits has effectively enlivened the issues relevant to the termination of contract issue, Ms Kucharek refers the Tribunal to the material filed in the District Court proceedings in particular the reply to defence filed on 1 October 2013. Ms Kucharek submits that it was open to Duncan Miller and Genevieve Miller to bring the application for joinder at the commencement of the proceedings and after Mair Renovations filed the statement of claim on 1 August 2013.
The Tribunal’s power to join a party to the proceeding
The Tribunal has the power under s 42 of the QCAT Act to make an order joining a person as a party to a proceeding if it considers:
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.
The Tribunal’s power under s 42 of the QCAT Act involves the exercise of discretion. It was previously determined by the Appeal Tribunal in Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority[7] that the Tribunal’s discretion is not ‘enlivened’ unless it is satisfied that ‘one or more of the criteria set out in s 42(1) is satisfied’.[8]
[7][2012] QCATA 241.
[8]Ibid at [6].
In Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority[9] the Appeal Tribunal determined that the matters that may be considered by the Tribunal in determining whether to exercise the discretion under s 42 are not exhaustive and ‘each case would depend on its own particular circumstances’.[10] The Appeal Tribunal determined that the decision to join a party or parties to a proceeding without their consent is a ‘serious matter and will not be done lightly’.[11] The Appeal Tribunal stated:
There must be some utility or purpose in the joinder. It might be that the joinder would avoid duplication of the litigation or multiplicity of proceedings in other proceedings in the Tribunal; there might be common question of fact or law involved in the proceeding; the joinder may enable all issues in dispute between affected parties to be finally determined;[12] or it may be that the parties joined would be amenable to an order of the Tribunal in the proceeding in the Tribunal. There are also questions of prejudice to the proposed parties in terms of costs, whether the process would be unnecessarily lengthened, and, importantly, and whether the objects set out in s 3 of the QCAT [Act] would be achieved. These are some of the matters that might be taken into account in the exercise of discretion but are by no means exhaustive and each case would depend on its own particular circumstances.[13]
[9]Ibid.
[10]Ibid at [11].
[11]Ibid at [14].
[12]See Gregor v Victoria [2000] VCAT 414.
[13]Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority [2012] QCATA 241, at [11].
In Coral Homes, the Appeal Tribunal also considered other decisions made by the Tribunal including the decision in Mackay v Queensland Building Services Authority.[14] In the decision of Mackay v Queensland Building Services Authority[15] the Tribunal found that the parties had already spent considerable time and money in relation to the proceedings and the addition of another party ‘can only add to the delay and expense of the proceeding’.[16]
[14][2010] QCAT 381.
[15]Ibid.
[16]Ibid at [12].
In the decision of Bartlett v Body Corporate for Beaches Surfers Paradise [2011] QCAT 91, the Tribunal also considered the issue of delay in bringing the application for joinder. The Tribunal determined that an ‘unexplained and lengthy delay is a recognised ground for refusing to exercise the s 42 discretion’.[17]
[17]Bartlett v Body Corporate for Beaches Surfers Paradise [2011] QCAT 91, at [14], see Bach v Majestic Pools & Landscapes Pty Ltd [2010] QCAT 581.
In an earlier decision of the Tribunal in Bach v Majestic Pools & Landscapes Pty Ltd,[18] the Tribunal considered that if the application for joinder were to proceed in circumstances where there was a delay in bringing the application, ‘the whole proceeding would need to be started again in another forum’.[19] The Tribunal in Bach v Majestic Pools & Landscapes Pty Ltd considered the Court of Appeal decision of MGM Containers P/L v Wockner[20] as follows:
[60][In MGM Containers] the Court of Appeal considered a decision of Her Honour Justice Phillipides in which she refused a joinder application on 3 grounds:
a)There had been considerable delay in applying for leave to join the third party
b)The joinder would add considerably to the complexity of the issues to be determined at trial and therefore to its length and cost
c)The issues to be raised against the third party were distinct and therefore the desirability of having all issues determined in one proceeding was diminished.
[61]The following point was made by the Court of Appeal in dismissing the appeal:
“The application called into question 2 conflicting principles. The first is that there are good reasons why a third party should be joined in an action where a defendant has an arguable case for contribution or indemnity from the third party against the plaintiff’s claim. Such a joinder ensures finality of litigation, avoids multiple proceedings with associated extra cost, and obviates the possibility that there may be different decisions given on the same issues tried by different courts. The second principle is that a plaintiff should be allowed to prosecute its action and obtain judgement without being delayed or inconvenienced by the defendant’s endeavours to offset its liability.”[21]
[18][2010] QCAT 581.
[19]Ibid at [65].
[20] [2006] QCA 502.
[21]Bach v Majestic Pools & Landscapes Pty Ltd [2010] QCAT 581, at [60] and [61] and see MGM Containers P/L v Wockner [2006] QCA 502 at [27].
In the present matter, there has been delay in bringing the application for joinder. The proceedings were commenced at first instance by Mair Renovations in the District Court on 1 August 2013 and were transferred to the Tribunal on 31 October 2013. I do not accept the submission made by Mr Ensbey that there is a ‘tipping issue’ relevant to the application for joinder arising from the late amendment of pleadings filed by Mair Renovations that raises an issue relevant to termination of the contract. There are issues raised in the pleadings in particular the defence filed by Duncan Miller and Genevieve Miller on 13 September 2013 in relation to the architect acting in accordance with the contract relevant to the claim for variations as set out in the statement of claim filed by Mair Renovations on 1 August 2013. There are also evidentiary issues identified in the affidavits prepared and filed in the District Court proceedings in relation to the role of the architect. In particular, the affidavit of Duncan Miller sworn and filed on 31 October 2013 was prepared in response to the affidavit of Robert Eccles sworn and filed 30 October 2013 and refers to assertions made by the architect about refusing access to the builder Mair Renovations to complete works relevant to the issue of termination of the contract.[22]
[22]Affidavit of Duncan Miller sworn and filed on 31 October 2013, para 12.
I have also considered the issue of delay and prejudice to Mair Renovations should the application for joinder proceed. The application is ready to proceed to a hearing subject to Duncan Miller and Genevieve Miller filing further statements of evidence. The Parties have prepared and filed pleadings and supporting affidavits in respect of the District Court proceedings.[23] After the proceedings were transferred to the Tribunal, the application proceeded to two compulsory conferences on 13 December 2013 and 18 June 2014. Directions were made following the compulsory conference on 13 December 2013 in relation to an inspection of the property by Mair Renovations and their expert witness and for the filing and exchange of amended pleadings including an amended statement of claim, amended defence and counter-claim and an amended reply.
[23]The applicant plaintiffs filed a statement of claim on 10 October 2013, a reply and answer on 1 October 2013 and the affidavit of Jeffrey Allan Mair sworn and filed on 29 October 2013 and the affidavit of Robert Norman Eccles sworn and filed on 30 October 2013. The defendant respondents filed a defence and counter-claim on 13 September 2013 and an affidavit of Duncan Miller sworn and filed 31 October 2013.
The present matter has been the subject of an experts’ conclave on 29 April 2014 and a joint experts report in the form of a Scott Schedule has been prepared and filed. Further directions were made by the Tribunal following a compulsory conference on 18 June 2014 for the filing and exchange of further statements of evidence to be prepared by the applicant and respondent and the application has been listed for a 5 day hearing commencing on 17 November 2014.
The Tribunal received an application for interim order from Mair Renovations on 15 July 2014 and a decision was made by the Tribunal on 25 September 2014 to dismiss the application for interim order.[24]
[24]Mair Renovations v Miller [2014] QCAT 474.
The Tribunal received the application for joinder on 15 July 2014 and directions were made on 25 September 2014 to list the application for an oral hearing on 17 October 2014.
The matter is ready to proceed to a hearing before the Tribunal on 17 November 2014 subject to Duncan Miller and Genevieve Miller filing further statements of evidence by 20 October 2014.[25] If the application for joinder was allowed to proceed and the architect was joined as a party to the proceeding it would be necessary for the parties to attend a further compulsory conference and experts’ conclave, subject to material filed by the architect, and the parties would need to prepare and file further pleadings and statements of evidence. It will be necessary for the Tribunal to make further directions to enable the matter to proceed to a hearing and this will attract costs and an adjournment of the hearing scheduled to commence on 17 November 2014.
[25]As per direction dated 15 October 2014 that extended the date for compliance with direction 5 made on 18 June 2014.
Duncan Miller and Genevieve Miller have had sufficient opportunity to bring the application for joinder and the joinder of the architect in this late stage of the proceeding will result in further costs to both parties. The joining of the architect Robert Eccles and Robert Eccles Pty Ltd as respondents will also raise further complex issues that will undoubtedly result in an increase in the number of hearing days. The complexity of the issues to be determined includes the hearing of additional evidence relevant to whether the architect acted without the authority of Duncan Miller and Genevieve Miller and whether Robert Eccles or Robert Eccles Pty Ltd was retained as architect by Duncan Miller and Genevieve Miller.
It was determined by the Court of Appeal in the decision of Just GI P/L v Pig Improvement Co Aust P/L[26] that the discretion to join a party to a proceeding requires a ‘balancing exercise’ of the advantages and disadvantages in considering whether the application to join should be allowed. Williams JA stated:
The question is one on which judicial minds might well differ. There are clearly advantages and disadvantages in joining or not joining the third parties. A balancing exercise is called for. It is difficult at a precise moment in time to give an immutable answer to such a question…[27]
[26]Just GI P/L v Pig Improvement Co Aust P/L [2001] QCA 48.
[27]Ibid at [17].
The Tribunal must in conducting a proceeding, amongst others, observe the rules of natural justice and ‘act with as little formality and technicality and with as much speed’ as the QCAT Act, an enabling Act or the rules and a ‘proper consideration of the matters before the Tribunal permit’.[28]
[28]QCAT Act s 28.
The Tribunal must also, in conducting a proceeding, have regard to the objectives of the QCAT Act to, amongst others, ‘deal with matters in a way that is accessible, fair, just, economical, informal and quick’.[29]
[29]QCAT Act s 3.
I accept the respondents’ submissions that the joining of the architect will enable all of the issues to be determined in the one proceeding. I also accept that the architect Robert Eccles and Robert Eccles Pty Ltd may be affected by the Tribunal’s decision in relation to a potential or future claim Duncan Miller and Genevieve Miller may have against the architect.
The joinder of Robert Eccles and Robert Eccles Pty Ltd as respondents on the basis that their interests may be affected by the Tribunal’s decision does not ‘as a matter of course’ enliven the Tribunal’s power under s 42 of the QCAT Act. Any claim Duncan Miller and Genevieve Miller may have against the architect can be dealt with in separate proceedings. The issues to be determined by the Tribunal in relation to the substantive application BDL271-13 have been ventilated in the amended statement of claim and defence and counter-claim prepared and filed by the parties. The Tribunal can now proceed to determine the relevant issues as they relate to Mair Renovations as the builder and Duncan Miller and Genevieve Miller as the home owner who are also the contracting parties in relation to a contract for the construction of the property upon which there is a dispute.
The Tribunal has also identified issues relevant to the exercise of the discretion under s 42 of the QCAT Act including: the delay by Duncan and Genevieve Miller in bringing the application for joinder, the prejudice to the other party Mair Renovations in relation to costs and the adjournment of the hearing, and the increase in the number of hearing days as a result of the complexity of the issues to be determined.
The Tribunal is not satisfied that the Tribunal’s objectives under s 3 of the QCAT Act will be met should the application for joinder proceed and Robert Eccles and Robert Eccles Pty Ltd be joined as respondents to the proceeding. The Tribunal is not satisfied that it is otherwise desirable for Robert Eccles and Robert Eccles Pty Ltd to be joined as a party necessary to satisfy the requirements of s 42(1) of the QCAT Act having identified issues such as prejudice, an increase in costs due to the complexity of the issues to be determined by the Tribunal at the hearing; and the increase in the number of hearing days and the delay in the proceedings as a result of the hearing listed on 17 November 2014 being adjourned and relisted.
The appropriate order having considered the submissions made in relation to the application for joinder is that the application is dismissed.
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