Walker v Queensland Building and Construction Commission

[2023] QCAT 166

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Walker v Queensland Building and Construction Commission [2023] QCAT 166

PARTIES:

SHIRLEY WALKER

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR473-19

MATTER TYPE:

General administrative review matters

DELIVERED ON:

12 May 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member King-Scott

ORDERS:

Application is dismissed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JOINDER OF CAUSES OF ACTION AND OF PARTIES – PARTIES – OTHER MATTERS – application for joinder – whether the party’s interests are affected – whether it is desirable for a party to be joined

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

1. This is an application to join a third party under s. 42 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

2. Neither part has applied to join Hamilton Island Enterprises Ltd. I can only presume that it was initiated by the Tribunal.

3. The section provides:

   42 Joining and removing 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 a 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 order that a party be removed from a proceeding if the tribunal considers that—

   (a)the party’s interests are not, or are no longer, affected by the proceeding; or

   (b)the party is not a proper or necessary party to the proceeding, whether or not the party was one originally.

   (3) The tribunal may make an order under subsection (1) or (2) on the application of a person or on its own initiative.

4. Directions were made on 16 November 2021 for the parties to provide written submissions to determine a preliminary issue of joinder of Hamilton Island Enterprises Ltd. All parties including Hamilton Island Enterprises Ltd have filed submissions.

5. Both parties oppose the joinder of Hamilton Island Enterprises Ltd. Hamilton Island Enterprises Ltd also does not wish to be joined as a party.

6. The facts of the case are quite complex. The issues to be determined by the Tribunal are outlined in the Joint Statement of Agreed Facts and Issues. They are:

   (a)Is Ms Walker the “owner” of the land and therefore the “insured” under the Policy Conditions?

   (b)Is the work “residential construction where” that is “primary building work”?

   (c)Is the residential construction work defective?

   (d)Had the insurance policy expired under clause 4.4 of the Policy Conditions?

   (e)Did Ms Walker comply with clause 4.5 of the Policy Conditions and make the complaint within 7 months of the date of practical completion?

   (f)Did Ms Walker purchase the land on which the residential construction work was performed?

   (g)If so, were the defects evident prior to completing the Agreement?

7. The Commission submits that none of the criteria set out in Section 42 of the QCAT Act are sufficiently met in relation to Hamilton Island Enterprises Ltd to warrant the joinder of Hamilton Island Enterprises Ltd, nor is there any utility or purpose in joining Hamilton Island Enterprises Ltd to the current proceeding.

8. In her submissions, Ms Walker submits that Hamilton Island Enterprises Ltd would have no interest in the outcome of the proceedings unless such outcome prejudiced it in relation to the head lease with the State of Queensland or as a sub lessor of the property to the Ms Walker, otherwise it is submitted that Hamilton Island Enterprises Ltd would be expected to regard the issues between Ms Walker and the Commission of no legal or other interest.

9. No breaches of the Crown lease or sublease are apparent arising from the issues currently before the Tribunal nor has any notice of any such breach been received by or on behalf of Ms Walker.

10. Hamilton Island Enterprises Ltd submits that at no time has it issued any breach notices under the terms of the sublease relating to the building works for Ms Walker’s property.

11. It seems to me from those submissions there is no benefit in joining Hamilton Island Enterprises Ltd and it would only add to the complexity of the matter and would increase the overall cost of the litigation for all parties.

12. In the circumstances, I refused the application to join Hamilton Island Enterprises Ltd as a party.

13. It appears to me, that the matter is ready for hearing which has been significantly delayed for reasons I am unaware of. It would appear that the matter could be determined on the papers without an oral hearing but I am reluctant to make that direction when there has been no activity in relation to the matter for so long.

14. I will list the matter for a directions hearing at which the parties should be in a position to advise whether the matter can be determined on the papers.