Nielsen v Prime Building and Pest Consultants Pty Ltd
[2014] QCAT 53
| CITATION: | Nielsen v Prime Building and Pest Consultants Pty Ltd [2014] QCAT 53 |
| PARTIES: | Mr John Nielsen (Applicant) |
| v | |
| Prime Building and Pest Consultants Pty Ltd (Respondent) |
| APPLICATION NUMBER: | BDL078-13 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | On the Papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Paratz |
| DELIVERED ON: | 19 February 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Prime Building and Pest Consultants Pty Ltd is given leave to be legally represented in the proceedings. 2. Mr John Nielsen is given leave to be legally represented in the proceedings if he so wishes. 3. The application to join Cory Roza as a respondent in the proceedings is refused. |
| CATCHWORDS: | Claim for loss on purchase of house – building inspection conducted – allegation that building inspection failed to disclose defects – owner paying more than prudent purchaser properly informed of the condition of the house – application for legal representation – application by building inspection company to join independent contractor |
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 (Qld) (QCAT Act).
REASONS FOR DECISION
Mr Nielsen has a claim against Prime Building and Pest Consultants Pty Ltd (Prime) for loss he claims to have suffered in purchasing a house that Prime inspected for him. He alleges that Prime failed to identify and report on defects in the house. His claim is for the difference in the price that he paid, and the price that a prudent purchaser properly informed of the condition of the house would have paid, to the jurisdictional limit of $50,000.
The matter is set for a 2 day hearing on 22 and 23 May 2014.
Prime have applied to be legally represented. Mr Rentoul, the principal, has submitted that the matter has become legally challenging, as there are expert witnesses giving valuation evidence which is outside his expertise, and two QBSA reports to consider. He is also concerned that the expert witness for Mr Nielsen is a former employer of his, who he believes has a personal vendetta against him, and whose alleged bias should be explored.
Mr Nielsen has strongly opposed the application for representation. He does not agree that there is legal or factual complexity involved, and argues that the involvement of a legal practitioner is more likely to prolong proceedings.
The hearing in this matter has had to be adjourned once already, from the 30 July 2013, because neither party was in a position to proceed. I am concerned that the matter be determined without further delay.
The matter is likely to involve complex questions of fact or law, as required by s 43(3)(b) of the QCAT Act for representation. I consider that the involvement of legally qualified persons will assist the orderly conduct of the matter, and is more likely to reduce the time taken for hearing, having regard to the previous history of the matter, and the difficulty that both parties have had in preparing for the hearing.
I therefore give leave for Prime to be legally represented in the proceedings.
Mr Nielsen submits that he cannot afford legal representation. I will also give him leave to be represented in case he changes his mind, and wishes to also be represented, to avoid him having to bring a separate similar application.
Prime have applied to join Mr Cory Roza as a Respondent. Prime allege that Mr Roza was engaged as a contractor by it, and that he conducted inspections for it on a per job basis.
Mr Nielsen’s contract was with Prime. He alleges a breach by it. Mr Roza is clearly a servant or agent of Prime. Prime has liability for the actions of its servants or agents conducted in the usual course of business. There is no claim by Mr Nielsen against Mr Roza.
Prime may have a claim in turn against Mr Roza in the future, but there is no provision in the QCAT Act similar to third-party proceedings in a Court[1] to enable questions of contribution or indemnity to be determined in these proceedings.
[1]R 192 Uniform Civil Procedure Rules 1999.
I therefore refuse the application to join Mr Roza as a Respondent.
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