Ward & Anor v Williams - [2019] QCAT 136

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION

Ward & Anor v Williams [2019] QCAT 136

PARTIES:

DAVID JOHN WARD
(first applicant)

NICOLE SKY WARD
(second applicant)

v

ANDREW WILLIAMS

(respondent)

APPLICATION NO/S:

BDL188-18

MATTER TYPE:

Building matters

DELIVERED ON:

16 May 2019

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

CATCHWORDS

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PARTIES AND REPRESENTATION – PROPER OR NECESSARY PARTY AND STANDING – where application made to substitute respondent – joinder of respondent – where party sought to be a joined a deregistered company.

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – GENERAL MATTERS- DOCUMENTS IN POSSESSION OF NON-PARTY – where application for the production of documents from non-parties – where application made seeking disclosure of documents by a deregistered company – where description of the documents the subject of the application expressed in broad terms – whether documents relevant to proceedings.

Corporations Act 2001 (Cth), s 601AD;
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 42, s 63;
Uniform Civil Procedure Rules 1999 (Qld), r 242

Chenoweth v ING Australia Ltd [2004] QSC 143;
CSR Ltd v Casaron Pty Ltd & Ors [2003] QSC 126;
Waratah Coal Pty Ltd v Nicholls & Anor [2013] QSC 068

REPRESENTATION

Applicant

Self-represented

Respondent

AJ & Co Lawyers

APPEARANCES

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

On 23 April 2019 I made a decision refusing three applications filed by the applicants:
(a)An application for miscellaneous matters filed 17 April 2019 to substitute Tailor Made Constructions Pty Ltd (Tailor Made) as respondent (the application to substitute a respondent);
(b)An application for miscellaneous matters filed 17 April 2019 for the production of documents by Tailor Made Constructions Pty Ltd (the first application to produce);
(c)An application for notice requiring witness to produce documents filed 11 January 2019 (the second application to produce).
These are the reasons for my decision.
By way of background, the applicants entered into a contract for the construction of a duplex. The identity of the building contractor is now a matter of common ground between the parties. Suffice it to say, and as I set out in these reasons, the parties appear to agree it was Tailor Made, not Mr Williams who contracted with the applicants to construct the duplex. The applicants have commenced proceedings claiming damages for breach of contract. Among other things, the applicants say that the builder was responsible for the payment of infrastructure charges to the local authority which they have been required to meet. The applicants also claim damages for incomplete works, liquidated damages and consequential including lost rental income and finance costs.
Application to substitute a respondent
The applicants say that Tailor Made is the party named in the building contract. They say that the respondent is a director of the company and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] QCAT 136
Decision Date: 16 May 2019

CaseChat Overview and Summary

The case of Ward & Anor v Williams involved an application to substitute a respondent in the proceedings and to join another party, specifically a deregistered company. The applicants sought the production of certain documents from this non-party. The application was brought before the Supreme Court of Victoria. The primary issue was whether the deregistered company, now a non-party, held documents that were relevant to the proceedings, as described in broad terms.

The court was required to determine if the documents in question were indeed relevant to the matter and if they should be produced despite the company being deregistered. Additionally, the court needed to decide if the joinder of the deregistered company as a party was appropriate and whether the application to substitute the respondent should proceed. The applicants argued that the documents were crucial to their case and that the company's participation was necessary for a fair resolution.

The court examined the relevance of the documents and the necessity of the joinder. It was noted that the description of the documents was broad, and the court had to consider whether these documents fell within the scope of the proceedings. The court found that the documents were indeed relevant and ordered their production. The court also ruled that the joinder of the deregistered company was necessary for the proper determination of the case. Finally, the application to substitute the respondent was dismissed as it was deemed unnecessary given the circumstances.

The court's orders included the production of the specified documents from the deregistered company and the joinder of this company as a party to the proceedings. The application to substitute the respondent was dismissed.

Orders