Saad v Cassar Homes (Aust) Pty Ltd

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 [2012] QCAT 715

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.

The case of Saad v Cassar Homes (Aust) Pty Ltd involved Louis Saad and Linda Liu, who entered into a contract with Cassar Homes (Aust) Pty Ltd for the construction of their home on the Gold Coast in 2006. The applicants sought to rectify what they allege to be defective tiling during the project. Cassar Homes filed a counterclaim, stating that the tiles were selected by the applicants and that they were warned of potential problems. Cassar Homes also applied to join Otto and Monika Vidmajer, who laid the tiles, and Westera Partners, the structural engineers, as respondents to the matter. The Queensland Civil and Administrative Tribunal (QCAT) was required to decide whether to allow the joinder of these additional parties.

The central legal issue in this case was whether the tribunal should exercise its discretion to join additional parties to the proceedings. The tribunal considered the objects of the Queensland Civil and Administrative Tribunal Act 2009, which require the tribunal to deal with matters in a way that is accessible, fair, just, economical, informal, and quick. The tribunal also considered the potential complications and delays that may arise from joining additional parties, as well as the stage of the proceedings. The tribunal found that while the additional parties had connections to the matter, there was insufficient evidence to suggest that they should be joined at this stage. The tribunal concluded that the primary dispute should remain between the builder and the homeowner.

The tribunal dismissed the application for joinder, stating that there must be some utility or purpose in the joinder to exercise the discretion. The tribunal was not persuaded that the circumstances in this matter justified the joinder of additional parties. The tribunal emphasised that the primary dispute should remain between the builder and the homeowner, and that liability should be determined on that basis.

The tribunal made no orders regarding the joinder of additional parties. The case proceeded with only the original parties involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established