Tracey v Wagner
[2012] QCAT 193
•8 May 2012
| CITATION: | Tracey and Anor v Wagner and Anor [2012] QCAT 193 |
| PARTIES: | Martha-Lee Tracey Todd Anthony Tracey (Applicants) |
| v | |
| Rodney Wagner | |
| (First Respondent) | |
| Olinderidge Pty Ltd | |
| (Second Respondent) |
| APPLICATION NUMBER: | BDL136-11 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Senior Member |
| DELIVERED ON: | 8 May 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The claim against Rodney Wagner is dismissed. 2. By 15 May 2012, Mr Wagner must provide a copy of this decision to Lawyers Qld. 3. By 15 May 2012, Mr Wagner must file and serve on Mr and Mrs Tracey and Lawyers Qld his claim for the costs of the application to strike out the claim against him. 4. Lawyers Qld may file and serve submissions about whether it should be responsible for the costs of this application, and the amount of those costs, by 22 May 2012. 5. The tribunal will decide whether to make an order for costs against Lawyers Qld, and if so what order, based on the submissions received, and without an oral hearing, not before 22 May 2012. |
| CATCHWORDS: | BUILDING – where claim against builder and director of builder – where director performed work the subject of the contract – where application to strike out claim against builder – whether duty of care owed by director COSTS – whether in interest of justice to order costs – where amended claim drafted by lawyer – whether order against representative is appropriate Queensland Civil and Administrative Tribunal Act2009, ss 100, 103 Council of the Shire of Noosa v J E Farr [2001] QSC 60 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Mr and Mrs Tracey signed a contract with Olinderidge Pty Ltd for the construction of a home. Mr Wagner is the sole director of Olinderidge Pty Ltd, he is the licensed nominee for the purposes of the Queensland Building Services Authority and he conducted all negotiations between the company and Mr and Mrs Tracey.
Mr and Mrs Tracey have filed a claim in the tribunal stating that the home is built below the habitable floor level for the local government area and is now infested with termites. They have filed the claim against both the company and Mr Wagner.
Mr Wagner has filed an application to strike out the claim against him. He says:
a)Mr and Mrs Tracey say that he owed them a duty of care but do not explain the basis for that duty.
b)The duty, if any, is owed by Olinderidge Pty Ltd.
c)He does not “acquire” a duty simply because he acted as the company’s representative during the contract negotiations or during construction.
Mr and Mrs Tracey say that Mr Wagner should stay as a party to the claim because:
a)They signed the contract with Mr Wagner “trading as” Olinderidge Pty Ltd.
b)He was the builder, the concreter and the person who caused the damage to their house.
c)He has been named as a party from the start of these proceedings.
None of the parties have provided the tribunal with a copy of the building contract. However, Mr and Mrs Tracey assert that they entered into a contract with the company. By way of explanation, they now say that the contracted with Mr Wagner “trading as” Olinderidge Pty Ltd.
An individual does not “trade as” a company. They are two separate entities, each having their own rights and obligations. Because a company is a legal but not a “real” person, it must act through individuals. The individual does not owe the same duty or obligation as the company unless there is an agreement to that effect or the duty is imposed by law. As Justice Chesterman more eloquently explained[1]:
it will not ordinarily be the case that directors, even of “small one man companies”, will assume personal responsibility to a customer with whom they transact business on behalf of the company. The ordinary expectation of persons is that the company, not the individual, assumes responsibility for the consequences of not effecting the transaction with reasonable care.
[1] Council of the Shire of Noosa v J E Farr [2001] QSC 60 at [86].
As Mr Wagner points out, Mr and Mrs Tracey entered into a written contract with a registered builder. That gives them access to the statutory scheme which includes implied warranties through the Domestic Building Contracts Act2000, the Queensland Building Services Authority complaint regime and the statutory insurance scheme.
Mr and Mrs Tracey do not point to any specific activity by Mr Wagner that indicates he was doing anything more than acting as the company’s agent. There is nothing to indicate that he accepted a personal liability to them for the quality of the work performed by the company.
Mr and Mrs Tracey could have gone further and asked Mr Wagner to sign the contract both personally and as agent for Olinderidge Pty Ltd. There is no evidence that Mr Wagner did sign in his personal capacity and there are many good reasons why he would resist doing so.
[10] It is not enough for Mr and Mrs Tracey to say that he did the work. I find that Mr Wagner’s work was conducted as agent of the building contractor, Olinderidge Pty Ltd.
[11] Mr and Mrs Tracey have not identified any specific duty of care that Mr Wagner would owe them, outside of his obligations as agent for Olinderidge Pty Ltd. The claim against Mr Wagner should be dismissed.
[12] Mr Wagner claims his costs of responding to the claim and of bringing this application. The starting point for costs is that each party must bear that party’s own costs of the proceeding[2] but the tribunal may order a party to pay costs if the interests of justice require it.
[2] Queensland Civil and Administrative Tribunal Act 2009, s 100.
[13] Mr Wagner says that Mr and Mrs Tracey’s claim against him was so weak that it should not have been brought and that public policy requires that parties should not file claims in the tribunal without taking some care to ensure that there is a known cause of action and evidence capable of supporting the claim.
[14] The response was filed on behalf of both Olinderidge Pty Ltd and Mr Wagner. I can see no utility in awarding costs to Mr Wagner for a relatively simple document that would have been filed in any event.
[15] It is true that there is no substance in the claim against Mr Wagner but the difference between a company and its representatives can be a difficult concept for non-legally trained people to grasp. I will not make any costs orders against Mr and Mrs Tracey personally.
[16] Mr Wagner properly raised the issue in the response filed on 20 June 2011. In February 2012 Mr and Mrs Tracey filed an amended claim that was signed by an Australian Legal Practitioner. I do expect that a lawyer should have been alert to the difficulties of a claim against Mr Wagner and, if the claim was sustainable, provided details of the way in which the claim against Mr Wagner was formulated.
[17] Section 103 of the Queensland Civil and Administrative Tribunal Act 2009 allows the tribunal to make costs orders against a representative of a party if it considers that the representative, rather than the party, is responsible for unnecessarily disadvantaging another party to the proceeding. Before the tribunal makes that order, it must give the representative a reasonable opportunity to be heard. I therefore direct:
a)By 15 May 2012, Mr Wagner must provide a copy of this decision to Lawyers Qld.
b)By 15 May 2012, Mr Wagner must file and serve on Mr and Mrs Tracey and Lawyers Qld his claim for the costs of the application to strike out the claim against him.
c)Lawyers Qld may file and serve submissions about whether it should be responsible for the costs of this application, and the amount of those costs, by 22 May 2012.
d)The tribunal will decide whether to make an order for costs against Lawyers Qld, and if so what order, based on the submissions received, and without an oral hearing, not before 22 May 2012.
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