Sloan v Scottsdale Installations Pty Ltd - [2013] QCAT 638

CITATION:

Sloan v Scottsdale Installations Pty Ltd [2013] QCAT 638

PARTIES:	David Sloan (Applicant)
v
Scottsdale Installations Pty Ltd (Respondent)

APPLICATION NUMBER:

BD033-13

MATTER TYPE:	Building matters
HEARING DATE:	19 November 2013

HEARD AT:

Brisbane

DECISION OF:

Member Favell

DELIVERED ON:

20 November 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Application dismissed.

CATCHWORDS:

Joinder of parties –

Queensland Civil and Administrative Tribunal Act 2009 s 42

Aon Risk Services Ltd v Australian National University (2009) 239 CLR 175

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

David Sloane

RESPONDENT:

Mark Taylor from Colville Johnstone Lawyers

REASONS FOR DECISION

David Sloan is a joint owner of real property at 4 Cutter Street, Russell Island.
David Sloan and his wife Nicole contracted with Phil Pope Homes to construct a split level 3 bedroom 3 bathroom dwelling on the site.
Under the building contract, Mr Sloan retained the right to nominate and/or specify the use of particular trade companies or suppliers to carry out certain work on the site.
In or about March 2012, the applicant met with a director of Steel Framing Systems Pty Ltd and Scottsdale Installations Pty Ltd, namely, Jacob Gundry in relation to the steel framing requirements for the proposed house.
The pleadings to date contain an admission from the respondent that the applicant accepted an installation quote from the respondent in the amount of $19,567.63 to install the frame and the subfloor as detailed in the plans provided to Steel Framing Systems Pty Ltd by David Sloan and Steel Framing Systems relevant engineering details and design manual (installation contract).
The application complains of defective and/or incomplete work of the respondent. It claims that the respondent:
a)    Failed to install frame in accordance with the plans provided;
b)    Failed to complete the upper level floor and joyce fixing;
c)    Failed to fix or weld a support post in the garage;
d)    Failed to install angles to upper and lower decks;
e)    Failed to screw down and glue particle board flooring;
f)     Failed to install all required metal batons; and
g)    Did not provide a final inspection certificate form 16
The applicant claims that by reason of the respondent’s failure to complete the contract works, the respondent is not entitled to make a claim for the installation contract payment and the applicant seeks to be relieved of any obligation to pay for the installation contract works. He also claims $28,689.79 for the costs of rectification of the defective works.
In the response to the claim, the respondent says that the alleged defects outlined by the applicant related to the manufacture of the frame under the supply contract and did not relate to the installation works performed by the respondent pursuant to the installation contract. That pleading was filed on 28 March 2013.
The respondent, by way of counterclaim, claims $19,567.63.
By an application filed on 13 November 2013, the applicant applies for a direction “that Steel Framing Systems Pty Ltd be included as a separate respondent alongside Scottsdale Installations Pty Ltd.”
At that stage, the hearing of this matter was listed for November 21-22.
The reason for seeking that direction was expressed as:
1. Steel framing systems share the same directors and operate from the same premises, share same employees and they presented to me as one big happy family in the early stages of our dealings;
2. Steel framing systems manufactured the frame the centre of this dispute and therefore there exists the potential that they will be found to be at fault, at least in part, in this case as mentioned in the joint experts’ report.
3. Not including Steel Framing Systems Pty Ltd as a respondent has the potential to interfere with the proper administration of justice.
The joint experts’ report was filed on 1 November 2013. Part of that report was to the effect that the southern window in the kitchen was 300mm higher than the bench height which was to act as a servery to an al fresco area. The experts agreed that the frame was fabricated incorrectly to suit the window opening.
Section 42 of the Queensland Civil and Administrative Tribunal Act 2009 permits a Tribunal to order a person to be joined as a party if satisfied that the person should be bound by or have the benefit of the Tribunal’s decision, or that the person’s interests may be affected by the proceeding.
Section 42 of the Queensland Civil and Administrative Tribunal Act 2009 provides:
Joining Parties
(1)The Tribunal may make an order joining a person as a party to a proceeding if the Tribunal considers that-
(a)   The person should be bound by or have the benefit of the 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.
(2)The Tribunal may make an order under sub-s(1) on the application of a person or on its own initiative.
In my view, when considering whether a party should be joined, the consequences of any order need to be considered. It is likely, in my view, that if the party was ordered an amendment to the pleadings would be necessary. In considering that matter, the Tribunal is entitled to consider whether reasonable diligence on the party of the moving party would have led to the bringing of the claim in the existing proceedings so that any further proceedings might be barred on grounds of abuse of process or estoppel. It is necessary to consider what is actually being claimed in the present proceedings. It is likely that if a joinder was allowed, entirely new issues would fall to be considered.
QCAT is a Tribunal where generally costs do not feature. That is another matter to be taken into account here. All matters relevant to the exercise of the power to allow a joinder should be weighed. The fact of substantial delay and wasted costs and their effect on the parties, the court and other litigants and the concerns of case management all assume importance on an application such as this. Other relevant matters would also include the nature and importance of amendments to the party applying, the stage the litigation has reached and the explanation for any delay in applying for the amendment.[1]
[1] Aon Risk Services Ltd v Australian National University (2009) 239 CLR 175.
Essentially the applicant relied on the reasons set out in the application for miscellaneous matters. He tendered invoices under the logos of Steel Framing Systems and Scottsdale Installations Pty Ltd. Both contain the same ABN number and describe the same work. He also relied on an adjudicator’s decision which became exhibit 3 showing the respondent as Scottsdale Installations. It is an adjudicator’s decision in respect of a claim by a completely different applicant. The point of the document was that that particular applicant was given to understand that Steel Framing Systems was the trading name of Scottsdale Installations Pty Ltd. I am unable to see how that assists the argument for joinder here.
He also relies on exhibit 4 which is a print out from a web page showing that Murphy Kaire a supervisor was given an award whilst he was associated with both Steel Framing Systems and Scottsdale Installations Pty Ltd. Again that does little to support the application for joinder. A statement from Murphy Kaire was tendered as exhibit 5. It establishes that the directors of Steel Framing Systems are the same people who are the directors of Scottsdale Installations Pty Ltd. It also establishes that both companies are run completely separate.
From my understanding of what was told to me and the material to date, Steel Framing Systems Pty Ltd supplied the items which were to be installed by Scottsdale Installations Pty Ltd. They seem to me to be two different functions. The claim as it is made as present is in respect of the installation work.
I am not satisfied that the interests of the proposed party to be joined would be affected by that determination, nor am I satisfied that there is anything that the proposed party should be bound by in the hearing on the application as filed.
Exhibit 7 establishes that indeed Steel Framing Systems Pty Ltd was quoting for the supply of a frame.
I was told by the applicant that the application to join Steel Framing Systems was served on Steel Framing Systems yet although there was representation on behalf of Scottsdale Installations Pty Ltd there was no appearance for Steel Framing Systems Pty Ltd.
I was also told that if Steel Framing Systems was joined there would be substantial changes made to the pleadings and the evidence and indeed Scottsdale Installations Pty Ltd would seek to join Phil Pope Houses. Presumably that would concern the nature of the design supplied to the parties.
The representative for Scottsdale Installations Pty Ltd opposed the joinder and sought judgment in stanta. There is no reason why judgment would be given at this stage.
The applicant complained that the respondent has legal representation. On hearing the applicant, I indicated that I would give leave for the applicant to be legally represented and I so give that leave.
Both parties tell me that they are in a position to answer the claims made against them as they appear in the pleadings. Both told me that the matter was ready to go to trial. No one has at this stage provided any amended pleadings.
Having considered all of the relevant matters and the timing of the application, I am not satisfied that it is appropriate to make the order joining another party or parties.
The application is dismissed.