Punshon v Queensland Building Services Authority
[2011] QCAT 382
•11 August 2011
| CITATION: | Punshon v Queensland Building Services Authority [2011] QCAT 382 | |
| PARTIES: | Mr John Punshon | |
| v | ||
| Queensland Building Services Authority | ||
| APPLICATION NUMBER: | GAR281-10 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 10 August 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | J Allen, Member |
| DELIVERED ON: | 11 August 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The application to join Classic Floors in Timber as a party is refused. |
| CATCHWORDS: | Application for joinder of a party – Review of direction to rectify Queensland Civil and Administrative Tribunal Act 2009, s 42 |
APPEARANCES and REPRESENTATION (if any):
The application was determined on the papers in the absence of the parties.
REASONS FOR DECISION
Mr Punshon is the substituted applicant in an application to review a decision of the Queensland Building Services Authority to issue Homegait Pty Ltd with a direction to rectify building work, timber floor boards which had buckled and detached from the concrete slab, at premises at 159 Campbell Street, Sorrento. Homegait Pty Ltd is no longer trading and Mr Punshon, who is associated with the company, was substituted as applicant by direction of the Tribunal. Mr Punshon in his own right was also the owner of the premises at the time building work was being performed by Homegait Pty Ltd.
An application has been made by the QBSA to join Classic Floors in Timber as a party to the proceedings. Written submissions were filed by Mr Punshon and the QBSA in respect of the joinder application. The QBSA advised the Tribunal that Classic Floors was served with the application on 3 August 2011 but the Tribunal has not received any submissions from Classic Floors.
The direction to rectify was issued following a complaint received by the QBSA from Mr Anthony Horton the spouse of Mrs Louise Horton who was the then owner of the property. Mrs Horton had purchased the property from Mr Punshon. Mr Punshon claims that the building work was performed by Classic Floors by way of a personal contract with himself. There is also evidence that Mr Punshon had entered a contract with Homegait Pty Ltd for the building work mentioned above to be performed at the property. Mr Punshon claims this contract did not include the work on the floors.
The Tribunal may join a party to a proceeding if it considers that:
(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 in the proceeding[1].
[1] Queensland Civil and Administrative Tribunal Act 2009, s 42.
The QBSA may if it is of the opinion that building work is defective or incomplete direct the person who carried out the building work to rectify the building work[2]. If the Tribunal were to find that Homegait Pty Ltd did not carry out the building work then Mr Punshon would be successful in his review application. It is submitted by the QBSA that in that case Classic Floors interests are affected by the review proceedings as potentially the tribunal could amend the decision to state Classic Floors are responsible and a direction to rectify may be issued to Classic Floors.
[2] Queensland Building Services Authority Act 1991, s 72.
This is clearly within the Tribunal’s powers as it may in a proceeding for a review of a reviewable decision confirm or amend the decision; or set aside the decision and substitute its own decision; or set aside the decision and return the matter for reconsideration to the decision-maker, with direction the Tribunal considers appropriate[3]. There is support for the submission by the QBSA that it is better that the matter be dealt with in the one proceeding in terms of deciding who is the proper party who should be directed to rectify the building work if it is defective[4]. The QBSA have also submitted that Classic Floors should be given the opportunity to advance their position and as such inclusion as a party to the proceedings would be beneficial. It is also raised that the outcome of these proceedings may ultimately determine whether or not any future civil litigation is commenced by other parties. This provides a basis for the tribunal exercising its discretion in terms of the above criteria. The Tribunal has a discretion to join a party and it is for the Tribunal to determine if it should be exercised[5].
[3] QCAT Act 2009, s 24(1).
[4]Andric t/a Aspen Constructions Pty ltd v Queensland Building Services Authority [2010] QCAT 446; Body Corporate for London Woolstores Apartments & ors v Queensland Building Services Authority [2011] QCAT 86.
[5]Comfortable Homes Pty Ltd v Queensland Building Services Authority [2001] QBT 61.
Mr Punshon has objected to Classic Floors being joined as a party firstly on the basis that the QBSA has assumed Classic Floors is a sub-contractor. This is stated in the QBSA submissions. Mr Punshon goes on to say that this will confuse the issue as it is his argument that there was no builder involved and the works were undertaken by Classic Floors under a direct contract with the owner of the property. The Tribunal notes that while the QBSA did use the words sub-contractor it was contemplated as mentioned above that ultimately a direction to rectify may be issued to Classic Floors if they are the party responsible for the building work. Mr Punshon’s objection is ill-founded as the joining of Classic Floors is not on the basis of them being a sub-contractor per se but potentially as a party who could be affected by an order of the Tribunal.
It may be convenient for Classic Floors to be joined as a party to the proceeding, to enable all of the issues in regard to determining who carried out the building work, to enable Classic Floors to make its own submissions and if it was Classic Floors then to make an appropriate order. The final hearing of the primary application has been set down for 26 August 2011, a short time away. If Classic Floors were joined the hearing date would be required to be vacated and Classic Floors would need to be given an opportunity to respond to the material filed by the other parties and prepare for the hearing. This would cause delays in the proceeding. This has to be weighed against the opportunity that would be afforded to Classic Floors to adduce evidence that it was acting as a subcontractor to Homegait Pty Ltd in performing any work it did. There is no reason why a representative of Classic Floors could not be requested to provide evidence at the hearing in that regard.
If the decision of the Tribunal is to set aside the direction to rectify then the QBSA may issue a fresh direction to rectify and so if a decision in favour of Mr Punshon and Homegait Pty Ltd does not mean that the matter is finally disposed of. While that will again enliven the review jurisdiction of the Tribunal any decision of the Tribunal against Classic Floors if it were joined as a party may be subject to appeal to the Appeal Tribunal.
[10] This is not an application where the homeowner claimed that Classic Floors was the builder. The material shows that when requested to provide details in regard to Classic Floors being the contractor responsible for laying the timber floors[6] Mr Horton advised that the complaint is against the correct entity the seller[7]. Having regard to the proximity of the hearing date and the pressure joinder would put on Classic Floors the Tribunal will not exercise its discretion to join Classic Floors as a party.
[6] Statement of reasons page 62.
[7] SOR page 66.
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