Taouk v Queensland Building Services Authority
[2013] QCAT 96
| CITATION: | Taouk v Queensland Building Services Authority [2013] QCAT 96 |
| PARTIES: | Mr John Taouk (Applicant) |
| V | |
| Queensland Building Services Authority (Respondent) |
| APPLICATION NUMBER: | GAR330-11 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Kate Buxton, Member |
| DELIVERED ON: | 22 February 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application to join Mr Andrew George Hanna, Mr John Peter Hanna, Mr Peter John Hanna and Mr Fadi Tarabay as parties to review application GAR330-11 is dismissed. |
| CATCHWORDS: | Queensland Building Services Authority Act – application for review – application to join former directors of the now deregistered property owning company – whether parties should be joined under section 42 of the QCAT Act. Coral Homes Qld Pty Ltd v Queensland Building Services Authority [2011] QCAT 715 Queensland Civil and Administrative Tribunal Act 2009 s42(1) |
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 (QCAT Act).
REASONS FOR DECISION
In this review application to QCAT filed on 14 October 2011 Mr Taouk seeks review of the decision of the Queensland Building Services Authority to issue a direction to rectify works.
Mr Taouk commenced works for the construction of 16 residential apartments in Holland Park in about March 2006 and was engaged by APJ Pty Ltd and Fadi Tarabay, the developers of the project, to undertake that work. Mr Taouk was contracted as the licensee on the project, engaged to undertake construction management and to oversee the project. Mr Taouk asserts in his application that, on or about February 2007, he terminated the contract as construction manager and this was confirmed in written correspondence to the developers on 5 March 2007.
Mr Taouk asserts that he is not able to provide any further information about how the building works were complete and how final certification of the project was achieved. He says that, what arises from these facts is that the building works listed to be rectified in the direction to rectify issued by the Authority were not completed by him or were not completed whilst Mr Taouk was engaged as construction manager. The company APJ Pty Ltd has since deregistered.[1] The former directors of that company were Mr A Hanna, Mr J Hanna and Mr P Hanna. By application filed in these proceedings on 20 December 2012, the Authority seeks that each of these individuals, together with Mr Tarabay, be joined as parties to the proceeding.
[1] On 4 March 2008
The QCAT Act[2] provides a wide discretion for the joinder of parties to a proceeding. A party may be joined if he or she should be bound by, or have the benefit of, the Tribunal’s decision; if that person’s interests may be affected or if it otherwise desirable that the person be joined. Mr A Hanna, Mr J Hanna and Mr P Hanna have, jointly, filed submissions opposing the application that they be joined as parties. Mr Tarabay has not made separate submissions on this issue. Mr Taouk has indicated that he doesn’t wish to make submissions on the joinder application.
[2] Section 42(1)
The past directors of APJ cite a number of bases why they ought not be joined, including the fact that it has not yet been established by the Authority that APJ carried out the building work and that the past directors of that company are not responsible for the acts of the company. However the principal, and most compelling, reason for opposition to the application is the further significant cost and delay both to the Tribunal, to the current parties, and to the parties sought to be joined without advancing the interests of justice.[3]
[3] Submissions of the past directors of APJ filed 7 February 2013, paragraph 5(j); paragraphs 37 to 40
The Authority itself submits that it is Mr Taouk who is responsible for the defective building work. Indeed, that is the reason why they have issued the direction to rectify against him. However, in support of the application to join Mr Tarabay and the former directors of APJ, the Authority submits that the Tribunal may set aside the direction to rectify to the applicant and substitute its own decision that the Authority should issue a direction to rectify to the former directors and Mr Tarabay. This prospect, the Authority submits, means that:
(a)Those potential respondents to the Tribunal’s decision should be afforded procedural fairness in this application; and
(b)It is more desirable to have all matters dealt with at the same time.
The increase in the length of the proceeding and the complexity of it, and the prospect of minimising the need for the related proceeding, are two opposing factors which need to be balanced. Both factors are relevant to the Tribunal’s decision as to whether it is desirable that additional parties be joined. Similarly, the practical benefit to the joinder must also be assessed.
When asked to exercise its discretion under section 41 the question which this Tribunal must answer is, “why join?” This question was asked by a Member Michael Howe in Coral Homes Qld Pty Ltd v Queensland Building Services Authority[4] in a useful review of the authorities which are relevant on the question of joinder under section 42. Member Howe relied, as I also will rely, upon the decision of Senior Member Oliver in Smith v Queensland Building Services Authority[5] in which he considered that the proposed joinder:
“Would result in unnecessary delays and costs to both parties without utility. It may also add to the complexity of the issues given the position of the applicant that the defects go to design rather than actual construction. If the applicant does not propose to contest the direction to rectify on the basis submitted, then the Authority is at liberty to lead evidence from the representatives of (the proposed party) to contest this position if it chooses to do so.”
[4] [2011] QCAT 715 from paragraph [30]
[5] [2010] QCAT 448 at [39]
The Authority submits that if the proposed parties are not joined circumstances may lead to relitigation of the same issue between Mr Taouk, the Authority and the parties which the Authority proposes to join. However, the controversy currently before this Tribunal in its review application is whether Mr Taouk undertook the work and, if he did, whether he should rectify it. Until that question is determined the hypothetical prospect that a direction to rectify could issue against the proposed parties is not sufficiently compelling to enlarge the scope and complexity of the current review proceeding. No relief is currently sought against the proposed parties and such relief could only be obtained against them unless various contingent factors are made out. These contingencies are too remote to accede to the Authority’s application to join to the proceeding the developers of the relevant unit block.
Order
It is therefore appropriate to dismiss the application to join Mr Andrew George Hanna, Mr John Peter Hanna, Mr Peter John Hanna and Mr Fadi Tarabay to review application GAR330-11.
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