Saad v Cassar Homes (Aust) Pty Ltd
[2014] QCAT 416
| CITATION: | Saad v Cassar Homes (Aust) Pty Ltd [2014] QCAT 416 |
| PARTIES: | Louis Saad Linda Liu (Applicants) |
| v | |
| Cassar Homes (Aust) Pty Ltd (Respondent) |
| APPLICATION NUMBER: | BDL019 -14 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | On the Papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Gardiner |
| DELIVERED ON: | 27 August 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for miscellaneous matters being a joinder application filed on 23 June 2014 is dismissed. |
| CATCHWORDS: | BUILDING MATTERS - Joinder of Parties – parties whose interests may be effected by the proceedings - there must be some utility or purpose in the joinder to exercise the discretion - discretion to join not exercised Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 3, 42 Comfortable Homes Pty Ltd v QBSA [2001] QBT 61 Coral Homes Qld Pty Ltd v QBSA (No 2) [2012] QCAT 242 followed Just GI Pty Ltd & Ors v Pig Improvement Company Australia Pty Ltd [2001] QCA 33 |
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 Saad and Ms Liu entered into a contract with Cassar Homes for the construction of their home at on the Gold Coast in 2006. Mr Saad and Ms Liu have commenced proceedings against Cassar Homes for rectification of what they allege is defective tiling during the project.
Cassar Homes has replied and counterclaimed saying that the tiles were selected by Mr Saad and Ms Liu and that Cassar Homes warned them of potential problems.
Cassar Homes has now applied to join Otto and Monika Vidmajer who laid the tiles and Westera Partners, the structural engineers as respondents to the matter. Cassar Homes says this allows it to seek redress if this Tribunal finds a claim of negligence against Cassar Homes as head contractor.
The objects of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) require the Tribunal to deal with a matter in a way that is accessible, fair, just, economical, informal and quick[1]. Joining parties has the potential to complicate issues and prolong hearings and this Tribunal must consider the objects of the QCAT Act when making a decision on any joinder application.
[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3.
Parties are joined under section 42 of the QCAT Act. This is a two step process and provides for an exercise of a discretion - the Tribunal “may” join a party if the Tribunal considers the person should be bound by or have the benefit of a decision of the tribunal or the person’s interests may be affected or for any other reason it is desirable that the person be joined[2].
[2] Comfortable Homes Pty Ltd v QBSA [2001] QBT 61 applied in Coral Homes Qld Pty
Ltd v QBSA [2012] QCAT 715 at para 30.
Factors to be considered when adding extra parties are: will the joinder add to the complexity of the matter; will it lengthen the duration of the hearing potentially significantly; and will it delay the hearing date of the proceedings because of the number of parties involved. This matter is at a sufficiently early point in the proceedings to be considered without the stage of the proceedings being a determinant factor[3].
[3] See the discretionary factors considered in Just GI Pty Ltd & Ors v Pig Improvement
Company Australia Pty Ltd [2001] QCA 33.
The first consideration is then, whether the party should be bound by or have the benefit of a decision of the Tribunal or whether the party’s interests may be affected or for any other reason. This is generally not difficult to satisfy. Both of these parties have connections with this matter – the tiler and the engineer. It is possible that if Cassar Homes is found to be liable, it may have other claims against both of these extra parties.
But that is yet to be proven. The claim may not be made out against Cassar Homes and these potential third parties would be put to great expense for no good reason.
I am not satisfied that either of these parties should be joined on the basis of potential liability. The argument remains primarily between the builder and the home owner and at this point, should remain there. It is on that basis that liability should be determined.
I agree with and adopt the comments of the learned Senior Member in Coral Homes Qld Pty Ltd v QBSA (No 2), that there must be some utility or purpose in the joinder to exercise the discretion.[4] I am not persuaded these circumstances exist in this matter.
[4] Ibid.
The joinder application is dismissed.
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