Wickson v Hunter Builders Pty Ltd
[2019] QCATA 154
•13 November 2019
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Wickson v Hunter Builders Pty Ltd [2019] QCATA 154
PARTIES: NICHOLAS WICKSON (applicant/appellant)
v
HUNTER BUILDERS PTY LTD (respondent)
APPLICATION NO/S:
APL259-18
ORIGINATING APPLICATION NO/S:
Cleveland MCDO0100-18
MATTER TYPE:
Appeals
DELIVERED ON:
13 November 2019
HEARING DATE:
1 November 2019
HEARD AT:
Brisbane
DECISION OF:
Member J R Forbes
ORDERS: 1. The application for leave to appeal is refused.
2. The application for miscellaneous matters is dismissed.
CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – CONTRACT – principles of contract -privity - where applicant sought joinder of a second respondent – where order for joinder refused – where proposed new party not party to contract – where agreement not specifically for proposed new party – application for leave to appeal primary decision – where no reasonable prospect of successful appeal – where application for leave refused
MINOR CIVIL DISPUTE (DEBT) – where respondent has cross-claim – where counterclaim may not be filed in a minor civil dispute (debt) – where respondent seeks transfer of applicant’s proceedings to building list - whether compliance by original applicant with section 77 of Queensland Building and Construction Commission Act 1991 (Qld) – where originating process not compliant with s 77 – whether separate proceedings for proposed counterclaim preferable
Queensland Building and Construction Commission Act 1991 (Qld) s 67AZN, s 77, Schedule 1B s 3
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 92, s 93, s 142(3)Queensland Civil and Administrative Tribunal Rules 2009 (Qld) reg 48(3)
FV Rentals t/as Forbes Realty Rentals v Anderson [2014] QCATA 181
LKB Holdings Pty Ltd v Gacayn [2019] QCATA 13
Newcastle Entertainment Security Pty Limited v Simpson [1999] Aust Torts Reps 81-528; [1999] NSWCA 351
Pickering v McArthur [2005] QCA 294
Price v Easton (1833) 4 B & Ad 433; 110 ER 518
Tinney v Allen [2019] QCATA 116
Trident General Insurance Co Ltd v McNeice Brothers Pty Ltd (1998) 165 CLR 107
Vandepitte v Preferred Accident Insurance Corporation of New York [1933] AC 70
Wilson v Darling Island Stevedoring and Lighterage Co Ltd (1956) 95 CLR 43Wilson & Anor v LP & MJ Pty Ltd [2019] QCATA 82
APPEARANCES & REPRESENTATION:
Applicant:
In person
Respondent:
No appearance
REASONS FOR DECISION
This case in the appeals tribunal combines two distinct applications by Nicholas Wickson (`Wickson’) against Hunter builders Pty Ltd (`Hunter’): First, an application for leave to appeal against refusal of an order for joinder, and second, an original application to transfer Hunter’s present minor civil dispute (debt) to the domestic building list.
The application for leave to appeal
On 22 August 2018 Wickson sought an order that his wife, Laura Justine Fell (`Fell’) be joined as co-respondent to the minor civil claim initiated by Hunter on 19 July 2018. We are not now concerned with the merits of Hunter’s claim. Wickson’s application for joinder was refused on 19 July 2018. He now seeks leave to appeal[1] against that decision.
[1]As prescribed by QCAT Act s 142(3)(a)(i).
The respective leave and transfer applications were listed for oral hearing[2] on 1 November 2019.
[2]It was Hunter that requested an oral hearing, by email to the registry on 10 October 2018.
The registry, as required,[3] notified the parties of that hearing date by email and post, on 1 October 2019.
[3]QCAT Act s 92.
However, Hunter did not appear at the hearing. It gave no explanation for its non-appearance, and did not seek an adjournment. Accordingly the hearing proceeded ex parte.[4]
[4]QCAT Act s 93.
The ground of Wickson’s proposed appeal is as follows:
I am asking to have my wife join me as respondent ... Laura is a joint mortgage holder on the property in question [and] therefore [she] has a substantial financial interest in the decision of this case. Hunter Builders are claiming final payment of a building agreement where both Laura and myself a [scil are] joint signatories on the loan, therefore, payment needs her approval. Given this, it is only fair that Laura has the right to represent herself in a case whereby Hunter Builders are claiming a financial amount against her. Laura has been responsible for 90% of communication with Hunter Builders, therefore is the person best equipped to give evidence.
With respect, there are several errors of fact in this pleading.
Fell is not a party to the building contract between Wickson and Hunter. That document[5] records Wickson alone as the `Owner’ and the client of Hunter. Accordingly Hunter’s action is brought against Wickson alone.
[5]Master Builders Queensland Residential Building Contract Level 2, Part B.
Fell is not a `joint mortgage holder’. The sole mortgagor to the National Australia Bank is Wickson.[6] That is not surprising because, as Wickson readily informed the appeal Tribunal, he was at material times sole registered proprietor of the subject building site.
[6]National Australia Bank Loan Facility Agreement dated 27 November 2017. Page 5 under heading ‘Security for the loan ... Mortgagor Nicholas William Wickson of 3/88 York St Coorparoo’.
Hunter is not claiming any amount against Fell, nor could it, as she is not a party to the building agreement. Absent joinder of Fell, Hunter could enforce a judgment only against Wickson.
It is true that there is a joint loan agreement between NAB, on one hand, and Wickson and Fell, on the other. That is an entirely separate legal arrangement between the Bank, on one hand, and Wickson and Fell on the other. If Fell has made financial contributions to Wickson towards the building contract, as appears to be the case, then she may well have rights against Wickson, but as a matter of law that does not create a contractual nexus between her and Hunter, nor make her a joint mortgagor.
There is a short and eminently practical answer to the argument that Fell should be a co-respondent simply because she would be the principal witness on Wickson’s behalf. That does not make her an eligible party to the Wickson-Hunter agreement, but a witness need not be a party to give all relevant evidence in his or her possession.
The application for joinder flies in the face of a fundamental and long-standing principle of the common law, known as privity of contract. That doctrine holds that the only persons who may sue or be sued upon a contract, and the only subjects of rights and obligations thereunder are the parties thereto. Other people, however closely associated with a party, or however often they may were involved in negotiations that led to the contract, are not eligible to sue or be sued upon it.[7] Natural love and affection do not a contract make.
[7]Price v Easton (1833) 4 B & Ad 433; 110 ER 518; Wilson v Darling Island Stevedoring and Lighterage Co Ltd (1956) 95 CLR 43; Newcastle Entertainment Security Pty Limited v Simpson [1999] Aust Torts Reps 81-528; [1999] NSWCA 351 at [14] and [98].
Admittedly there is an qualification when a contract – commonly a contract of insurance – is made expressly for the benefit of a specified person or class of persons. So, for example, if accident insurance is taken out for `XYZ Pty Ltd, all its subsidiary companies, and all its contractors’ on a certain project, an injured contractor may claim upon the policy in his own right.[8] But this exception does not apply to any or everyone who, broadly speaking, is financially or emotionally interested in an agreement. Further, an exceptional legal interest of the kind just mentioned `must be affirmatively proved and cannot necessarily be inferred from mere general words’.[9] There is no evidence in this case to satisfy that strict requirement, or to constitute a true analogy to such cases as Trident Insurance.[10] And so the applicant for joinder faces the elementary barrier of privity of contract.
[8]Trident General Insurance Co Ltd v McNeice Brothers Pty Ltd (1998) 165 CLR 107.
[9]Vandepitte v Preferred Accident Insurance Corporation of New York [1933] AC 70 at 79; Newcastle Entertainment Security (above) at [13].
[10](1998) 165 CLR 107.
The Adjudicator’s decision to disallow joinder is clearly correct, and there is no reasonable prospect of a successful appeal[11]. Accordingly the application for leave to appeal must be refused.
[11]This is a threshold requirement of appeals for which leave is required: Pickering v McArthur [2005] QCA 294 at [3] per Keane JA; FV Rentals t/as Forbes Realty Rentals v Anderson [2014] QCATA 181 at [4] per Thomas QC.
`Transfer’ application
Apart from the joinder issue, Wickson applies[12] -
To move [Hunter’s] claim Q100/18 from a minor debt claim to a directions hearing as a domestic building dispute.[13]
[12]Application for Miscellaneous Matters 22 August 2018.
[13]Queensland Building and Construction Commission Act 1991 (Qld) (‘the Building Act’) s 67AZN, Schedule 1B s 3.
According to Wickson, he has a substantial cross-claim against Hunter. He correctly notes that generally no counterclaim may be made in an application framed as a minor debt claim.[14]
[14]Queensland Civil and Administrative Tribunal Rules 2009 (Qld) reg 48(3)
As a Senior Member recently observed:
There are a number of minor civil dispute claims. ... Such is the case with building disputes under the Queensland Building and Construction Commission Act 2003 (Qld), where an owner may be able to claim compensation from a builder through a minor civil dispute – consumer application, whilst the unpaid builder cannot in turn claim payment of outstanding moneys ... from the owner utilising a minor civil dispute – minor debt claim.[15]
[15]Wilson & Anor v LP & MJ Pty Ltd [2019] QCATA 82 at [22].
In fact Hunter has improperly `utilised’ a minor debt claim to pursue a building dispute.[16] Furthermore, as he has taken that course, he has probably overlooked section 77 of the Building Act –
A person involved in a building dispute ... may not apply to the tribunal unless the person has complied with a [dispute resolution] process established by the Commission to attempt to resolve the dispute.
[16]See QCAT Form 26 Part B ‘Payment of an amount owing’.
This precondition is mandatory. If a building applicant does not observe it, his application is an incurable nullity.[17] Wickson may consider amending his Response[18] to put these questions in issue.
[17]Tinney v Allen [2019] QCATA 116 at [9]; LKB Holdings Pty Ltd v Gacayn [2019] QCATA 13 at [18].
[18]Filed 6 August 2018.
Instead of pleading a counterclaim to a probable nullity, and risk entanglement in other technical difficulties, Wickson may consider commencing a free-standing domestic building dispute, after observing section 77 procedure. No order is required for that purpose.
For reasons already given, Hunter’s minor civil claim for debt, filed on 10 July 2018, is unsuitable for conversion to a domestic building dispute. Wickson’s Application for Miscellaneous Matters filed on 22 August 2018 is dismissed.
ORDERS
1. The application for leave to appeal is refused.
2. The application for miscellaneous matters is dismissed.
2
8
2