Baulderstone Hornibrook Pty Ltd v Beneficial Finance Corporation Limited
[1998] QCA 351
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- Baulderstone Hornibrook Pty Ltd v Beneficial Finance Corporation Limited[1998] QCA 351
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Baulderstone Hornibrook Pty Ltd v Beneficial Finance Corporation Limited[1998] QCA 351
Baulderstone Hornibrook Pty Ltd v Beneficial Finance Corporation Limited[1998] QCA 351
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 5499 of 1998
Brisbane
[Baulderstone Hornibrook P/L v. BFC]
BETWEEN:
BAULDERSTONE HORNIBROOK PTY LTD
ACN 002 625 130
(Applicant) Appellant
AND:
BENEFICIAL FINANCE CORPORATION LIMITED
ACN 007 597 202
(Respondent) Respondent
Pincus J.A.
Thomas J.A.
Byrne J.
Judgment delivered 6 November 1998
Separate reasons for judgment of each member of the Court; each concurring as to the orders made.
1.APPLICATION FOR AN EXTENSION OF TIME WITHIN WHICH TO SEEK LEAVE TO APPEAL IS, SO FAR AS NECESSARY, GRANTED. APPLICATION FOR LEAVE TO APPEAL PURSUANT TO SECTION 118(3) OF THE DISTRICT COURT ACT 1967 IS GRANTED AND APPEAL ALLOWED.
2.THE LEARNED DISTRICT COURT JUDGE'S DISMISSAL, ON 22 MAY 1998, OF APPLICANT'S APPEAL, AS AGAINST THE RESPONDENT IS SET ASIDE. IN LIEU THEREOF IT IS ORDERED THAT THAT APPEAL TO THE DISTRICT COURT BE ALLOWED AND THE DETERMINATION OF THE QUEENSLAND BUILDING TRIBUNAL DATED 2 JUNE 1997 RELATING TO THE JOINDER OF THE RESPONDENT BE SET ASIDE. IN LIEU IT IS ORDERED THAT THE APPLICATION BY THE RESPONDENT TO THE TRIBUNAL NO. R132/95 SEEKING AN ORDER THAT IT BE DISCHARGED AS A PARTY TO THE APPLICANT'S APPLICATION FOR REVIEW BE DISMISSED.
3.THE RESPONDENT IS TO PAY THE APPLICANT’S COSTS OF THIS APPEAL AND OF THE APPEAL BEFORE THE LEARNED DISTRICT COURT JUDGE.
| CATCHWORDS: | BUILDING AND CONSTRUCTION - whether Queensland Building Services Authority may direct mortgagee to rectify building work - builder went into liquidation before completion - mortgagee took possession - mortgagee entered into contracts to enable project to be completed - whether mortgagee was a person who "carried out the building work" - whether provision allowing rectification of building work to be directed is given retrospective operation when building work was carried out before commencement of the provision - whether mortgagee carried out its task for profit or reward. Queensland Building Services Authority Act 1991 ss. 72, 99 R v. His Honour Judge Given, ex parte Builders’ Registration Board of Queensland [1985] 2 Qd.R. 32 Baulderstone Hornibrook Pty Ltd v. Queensland Building Services Authority (unreported Supreme Court of Queensland No. 183 of 1996, 25 January 1996) |
| Counsel: | Mr. P A Keane Q.C., with him Mr. A. M. Daubney for the applicant/appellant. Mr. J. S. Douglas Q.C., with him Mr. K. B. Varley, for the respondent |
| Solicitors: | Stubbs Barbeler Grant for the applicant/appellant Clarke and Kann Lawyers for the respondent |
| Hearing Date: | 24 August 1998 |
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 5499 of 1998
Brisbane
| Before | Pincus J.A. Thomas J.A. Byrne J. |
[Baulderstone Hornibrook P/L v. BFC]
BETWEEN:
BAULDERSTONE HORNIBROOK PTY LTD
ACN 002 625 130
(Applicant) Appellant
AND:
BENEFICIAL FINANCE CORPORATION LIMITED
ACN 007 597 202
(Respondent) Respondent
REASONS FOR JUDGMENT - PINCUS J.A.
Judgment delivered 6 November 1998
- The applicant, which I shall call "the manager", has applied for leave to appeal against a judgment of the District Court in favour of the respondent ("the mortgagee"). The manager filed a notice of appeal against the District Court’s judgment in due time, but subsequently noticed that s. 118 of the District Court Act 1967 has the effect that in such a case as this there is no appeal without leave; the manager then filed an application for leave and for an extension of time. The parties were invited to and did argue the merits of the matter, on the assumption that leave would be given.
- The principal question in the case is whether under s. 72 of the Queensland Building Services Authority Act 1991 ("the 1991 Act") the Queensland Building Services Authority may direct the mortgagee to rectify certain building work. The District Court held, agreeing with the decision of the Queensland Building Tribunal, that no such direction could be given. The Tribunal held this to be so on the ground that the mortgagee had not "carried out the building work" within the meaning of s. 72(1) of the 1991 Act; because first, the mortgagee "at common law . . . could not be held to have carried out building work" and, secondly, because of the way relevant provisions of the statute stood at the time the work was done. When the Tribunal’s decision was taken on appeal to the District Court, it was held in that court that the mortgagee had not carried out the building work.
- The District Court’s jurisdiction on appeal from the Tribunal is derived from s. 94 of the 1991 Act and is not confined to rectification of errors of law; however, that Court did not in fact consider any factual question; the court seems to have reached its conclusion with respect to the status of the mortgagee on its view of the meaning of s. 72. However, in this Court a factual point was raised and that was whether the Tribunal was right in finding as it did that the mortgagee "carried out its task for profit or reward"; the relevance of that finding is that the expression "for profit or reward" occurs in s. 72(2)(d) of the Act, the immediately relevant part of which are as follows:
"72(1)If the authority is of the opinion that building work is defective or incomplete, the authority may direct the person who carried out the building work to rectify the building work within a reasonable period stated in the direction.
(2)For subsection (1), the person who carried out the building work is taken to include-
. . .
- a person who, for profit or reward, carried out the building work.
. . .
(8)For the purposes of subsection (2)(c) and (d) -
- a person carries out building work whether the person-
- carries it out personally; or
- directly or indirectly causes it to be carried out;"
It is convenient to proceed, initially, on the assumption that the Tribunal’s finding which I have mentioned is correct.
- It is necessary to explain in rather more detail the history of the dispute. It relates to what is said to be water penetration of the ceilings of certain units of Stuartholme Apartments II Complex at Bardon. J C Scott Developments Pty Ltd had contracted to build the project but went into liquidation before completing it and it was submitted that the mortgagee took possession under its security. It entered into a contract with the manager, pursuant to which the mortgagee entered into contracts to enable the project to be completed; in particular, it entered into a contract with a firm which did tiling work and it appears to be suggested that deficiencies in that tiling work have caused the water penetration.
- On 1 December 1995, the Queensland Building Services Authority issued to the manager a direction to perform rectification work at the complex, relating to the water penetration I have mentioned. The question whether that direction was appropriately issued to the manager does not arise in the proceedings before us. Having received the direction to rectify, the manager filed an application for a review of the Authority’s decision to direct rectification, as it was entitled to do.
- Under s. 99(4) of the 1991 Act:
"The tribunal may order that a person who may be affected by the review be joined as a party to the review, and may make orders against, and give directions to, the person."
One of the grounds upon which the manager sought review of the direction was that the Authority had not taken into account that the works were carried out for the mortgagee as principal. Having instituted the application for review, the manager applied to the Tribunal for orders under s. 99(4) that the mortgagee and another party be joined as parties to the review and that application, having been made ex parte, was granted. Then the mortgagee applied on notice to the Tribunal for an order that it be discharged as a party to the application for review and the Tribunal ordered that that be done. The Tribunal’s reversal of its order that the mortgagee be joined may perhaps be based on the doctrine, applicable to courts, that a party affected by an ex parte order may apply for its discharge: The Owners of S.S. Kalibia v. Wilson (1910) 11 C.L.R. 689. Alternatively, the reversal of the decision may be justified by the terms of s. 24AA of the Acts Interpretation Act 1954. It does not appear that s. 92 of the 1991 Act, which allows reconsideration of orders affected by clerical mistake or factual error, was applicable. In view of my ultimate conclusion, it is unnecessary to consider this aspect of the matter further.
- The first point is whether the mortgagee is, within the meaning of s. 72(2)(d), "a person who . . . carried out the building work". It is argued for the manager that it falls within that description because it caused it to be carried out: see s. 72(8)(a)(ii). That it did so seems clear; it entered into contracts, of which the tiling contract I have mentioned was one, under which it obtained promises to have relevant work done. Although as Mr Douglas Q.C., who led for the mortgagee emphasised, the manager had a part in this outcome, the work was done for and at the expense of the mortgagee. I do not well understand how it can be said that, in those circumstances, the mortgagee did not cause the work to be carried out.
- It is convenient now to take, in order, a number of arguments put forward on behalf of the mortgagee. It was contended that there was no procedure under which the mortgagee could be ordered to do anything about defective work and so it could not be "a person who may be affected by the review" within the meaning of s. 99(4). The correctness of this submission depends on the scope of s. 99(5) of the 1991 Act which reads as follows:
"On an application for review, the tribunal may confirm, annul, vary or reverse the decision subject to the review and make consequential orders and directions".
- It will be recalled that the Authority’s decision which came to the Tribunal for review was a direction that the manager carry out rectification work. There are, as it seems to me, at least two ways in which the mortgagee might be affected by the review. First, if the Authority’s direction to the manager is upheld and it is obliged to expend money on rectification, that might give rise to a right of indemnification under the general law against its principal, the mortgagee. Secondly, reversal of the Authority’s direction that the manager rectify the defects might be based on the ground (being one of those in fact relied on by the manager) that the works were carried out for the mortgagee as principal; the argument would no doubt be that, as a matter of discretion, the direction to rectify should be varied by requiring the work to be done by the principal (the mortgagee) rather than the manager. It should be added that these possibilities were not explored in detail before us, nor need they have been; it was enough for the manager’s purposes to contend that the mortgagee was a person who "may be", not "would be", affected by the review.
- Mr Douglas’ next argument was that any submission made in the course of the review to the effect that it should be the mortgagee rather than the manager which was responsible for rectification could be made in the absence of the mortgagee. That is so and it might, having been joined, decide not to attend any review hearings. This submission goes to the exercise of the discretion to join parties; neither the Tribunal nor the District Court based its decision in favour of the mortgagee on any discretionary consideration. Apart from that, I can see no merit in the submission; an issue raised by the manager was whether the mortgagee rather than the manager should be responsible for rectification and it seems on the face of it convenient that both parties interested in that question should be joined before the Tribunal.
- Next, Mr Douglas argued that to hold that the mortgagee is caught by s. 72 would be to give that provision retrospective operation, since the work was done in 1991; the operation of the relevant provisions did not commence until 1 July 1992. A similar question was dealt with by the Full Court in R v. His Honour Judge Given, ex parte Builders’ Registration Board of Queensland [1985] 2 Qd.R. 32. In that case, in which the leading judgment was delivered by McPherson J. (as his Honour then was) the question was whether an order for rectification could be made under s. 59 of the Builders’ Registration and Home-owners’ Protection Act 1979 ("the 1979 Act"); under that provision there was power in the Registration Board to order rectification if "building work performed by . . . a registered builder . . . has not been performed in a proper and workmanlike manner". The work was done before the 1979 Act began; the Board relied upon an amendment to the 1979 Act, made in 1982, which was discussed in the following passage (at p. 38):
"The performance of the building work at 33 Bayliss Street is certainly a fact or event that has already occurred because it took place in 1974 to 1976; but, certainly since the 1982 amendment of s. 59(1), that fact or event has not formed a criterion or condition of the power to make an order under the section. It was replaced in 1982 by a requirement that the fact be that the work ‘is faulty or unsatisfactory’, which is an element in the definition of s. 59(1) having no reference to any past event".
McPherson J. then went on to consider whether the presumption against retrospective application of statutes applied to the case before him and held, for reasons given at pp. 38-40 that it did not; those reasons are equally applicable here.
- No sound basis for distinguishing R v. Judge Given appears, unless it be that in 1993 a transitional provision was inserted in the schedule to the 1991 Act, as follows:
"2(4)A direction or order for rectification of building work may be made under this Act in relation to building work, as defined in the repealed Act, carried out before 1 July 1992 by a person who was a registered builder, registered general builder or registered house builder within the meaning of the repealed Act as if references in this Act to a licensed contractor extended to the person".
The point of this amendment was presumably to make clear that s. 72(1) in its then form applied to people registered under the Builders Registration and Home-owners’ Protection Act 1979 - which was the Act dealt with in R v. Judge Given. The provisions of s. 72 relied upon by the manager in the present case did not then form part of the Act; they were inserted in 1994. It is, therefore, improbable that the addition, in 1993, of the transitional provision I have quoted, cl. 2(4), was intended to affect the construction of the provisions presently relevant. Apart from the Full Court decision in R v. Judge Given which I have discussed, the decision of Fryberg J. in Baulderstone Hornibrook Pty Ltd v. Queensland Building Services Authority (unreported Supreme Court of Queensland No. 183 of 1996, 25 January 1996) is opposed to the contention (which contention is in my view incorrect) that s. 72, in the form it had when the order for rectification and order for joinder of the mortgagee were made, is inapplicable on the ground of the presumption against retrospective operation.
- The next argument advanced by Mr Douglas was that if the opposing contentions were accepted, every person building a house with a view to sale would be obliged to become a licensed contractor, under s. 42 of the 1991 Act. This point has no real substance. First, s. 42 is about a licensing requirement and it would be odd to read down s. 72 because of any supposed difficulty in applying s. 42, which deals with quite a different subject. Secondly, the operation of s. 72 in the present case depends on the proposition that the mortgagee carried out building work for profit or reward, because it directly or indirectly caused such work to be carried out; these concepts come from s. 72(2)(d) and s. 72(8)(a), which have no counterpart in, nor any relevance to, the construction of s. 42. Thirdly, the submission is simply incorrect because s. 42(5) read with s. 44 deals with the situation of the owner-builder, who is required to have a permit under the latter provision.
- Two points remain for consideration.
- One is that, on the basis of the decision of the Full Court in Nickelseekers Limited v. Vance [1986] 2 Qd.R. 169, it was argued that this Court has no power to give leave to appeal from the District Court in the present case, under s. 118. The Nickelseekers case, however, dealt with a section in quite different terms and, plainly, has no present relevance.
- Secondly, an attack was made on the finding of the Tribunal that the mortgagee "carried out its task for profit or reward". There appears to be some uncertainty as to the content of the evidence on which that finding was made. But it was in the end agreed, as I understand the matter, that it consisted in a statement by Mr P A Kennedy, dated 19 July 1996, together with certain documents, which statement and documents were furnished to us. Although voluminous, this collection of material contains no statement by or on behalf of the mortgagee with respect to the purpose for which the work was being done. Mr Kennedy said that J C Scott Developments Pty Ltd went into receivership and then into liquidation, and that Beneficial Finance Corporation Ltd went into possession of the project. The construction management agreement between the mortgagee and the manager says that the mortgagee intends to cause the completion of construction work. The purpose of doing so is unstated and the material I have mentioned does not even disclose that Beneficial Finance Corporation Ltd is or was a mortgagee. The Tribunal said that it was at the time "a mortgagee in possession and was attempting to have the building work completed by building contractors or trade contractors so that it could sell the units to recover its money"; this statement, one might speculate, was perhaps based on information supplied from the Bar table. A mortgagee in possession might have other purposes, in completing such work; one possibility is that the mortgagee might under its arrangements with a mortgagor have a right to a share of the profits. Another point which is not made explicit is whether J C Scott Developments Pty Ltd, which until it went into liquidation building the project, was the mortgagor. The matter was argued before us on the assumption that that company was not only the builder but also the owner of the project.
- It does not appear to me that this Court should attempt to reach a conclusion, on such scanty evidence, either in accordance with or contrary to the Tribunal’s finding. As has been emphasised above, the question on an application to join a party under s. 99(4) is whether it "may be" rather than whether the party in question certainly will be affected by the review. It might be useful, however, to express a view as to whether a mortgagee which has advanced money towards the construction of a commercial project and later takes possession of the project in order to complete it, so as to recover unpaid principal and interest and other charges due under the mortgage, is causing the work to be carried out "for profit or reward" within the meaning of s. 72(2)(d) of the 1991 Act. It might be said on behalf of the mortgagee that it sought neither profit nor reward in undertaking the completion of the work, but merely attempted to recover that which was due to it. But if the mortgagee’s business is money lending, the profit gained from that business ordinarily consists, at least in large part, of interest which is in my view aptly described as "profit or reward". We have no information as to the amount of principal or of interest which was due when the mortgagee undertook the completion of the work; assuming, however, that a substantial amount of interest was due, I think the proper conclusion would be that the mortgagee decided to cause the work to be completed "for profit or reward". Looking at the matter more broadly, it is my view that the expression "for profit or reward" is probably intended to catch instances in which the work is being done as a commercial venture; the compendious expression "profit or reward" has that implication. On that basis, also, I would not on the shreds of evidence we have reverse the Tribunal’s finding on the point.
- Summary
- The mortgagee is a "person who . . . carried out the building work" within the meaning of s. 72(2)(d) of the 1991 Act because, in accordance with s. 72(8)(a)(ii) of the 1991 Act, it caused the work to be carried out.
- The mortgagee is "a person who may be affected by the review" within the meaning of s. 99(4) of the 1991 Act. It is enough for the manager to show that the mortgagee was a person who "may be", not "would be", affected by the review.
- Following R v. His Honour Judge Given, ex parte Builders’ Registration Board of Queensland [1985] 2 Qd.R. 32 and Baulderstone Hornibrook Pty Ltd v. Queensland Building Services Authority (unreported Supreme Court of Queensland No. 183 of 1996, 25 January 1996), s. 72 of the 1992 Act is not made inapplicable by the rule against retrospective operation of statutes, even though the defective building work was carried out before the commencement of the provision in its present form.
- A mortgagee which has advanced money towards the construction of a commercial project and later takes possession of the project in order to complete it is causing the work to be carried out "for profit or reward" within the meaning of s. 72(2)(d) of the 1991 Act, because recovery of interest owing to it is rightly described as "profit or reward".
- There is insufficient evidence to justify reversing the Tribunal’s finding that the mortgagee "carried out its task for profit or reward".
- Such orders are to be made as will restore the position that the mortgagee is made a party to the application for review before the Tribunal.
- I propose the following orders.
- The application for an extension of time within which to seek leave to appeal is, so far as necessary, granted. The application for leave to appeal pursuant to s. 118(3) of the District Court Act 1967 is granted and the appeal allowed.
- The learned District Court judge’s dismissal, on 22 May 1998, of the applicant’s appeal, as against the respondent, is set aside. In lieu thereof it is ordered that that appeal to the District Court be allowed and the determination of the Queensland Building Tribunal dated 2 June 1997 relating to the joinder of the respondent be set aside. In lieu it is ordered that the application by the respondent to the Tribunal No. R132/95 seeking an order that it be discharged as a party to the applicant’s application for review be dismissed.
- The respondent is to pay the applicant’s costs of this appeal and of the appeal before the learned District Court judge.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 5499 of 1998
Brisbane
| Before | Pincus J.A. Thomas J.A. Byrne J. |
[Baulderstone Hornibrook P/L v. BFC]
BETWEEN:
BAULDERSTONE HORNIBROOK PTY LTD
ACN 002 625 130
(Applicant) Appellant
AND:
BENEFICIAL FINANCE CORPORATION LIMITED
ACN 007 597 202
(Respondent) Respondent
REASONS FOR JUDGMENT - THOMAS J.A.
Judgment delivered 6 November 1998
- This case raises the question whether a mortgagee in possession who engages a builder and others to perform works on a building may later be called on by the Queensland Building Services Authority to remedy defective work.
- The answer depends on the facts. Under s. 72 of the Act[1] the Authority may call upon any person who, for profit or reward, carried out the building work, and this includes work which that person directly or indirectly caused to be carried out.[2] A person is also taken to have carried out building work if that person has provided administration services, management services or supervisory services for the work.[3]
- It is a fallacy to think that there are two distinct naturally exclusive categories of persons involved in building contracts - building owners and building contractors - the former always being a consumer and the latter a supplier, and that the purpose of the Act is to protect the former from the latter. Whilst that may often be the case, experience shows that the dividing line between the two is not necessarily as clear as one might like it to be.
- It would be incorrect to assume that a mortgagee in possession steps into the shoes of the owner when it takes possession of the premises. When such a mortgagee proceeds to make fresh building arrangements with existing and additional contractors and sub-contractors in order to enhance the property which it wishes to sell, or indeed where it seeks to be a profit sharer in a venture which requires further building work to be performed in order to enhance the project, one can readily see that the mortgagee might become a person who for profit or reward directly or indirectly caused the further works to be carried out.
- Mr. J. S. Douglas Q.C., for the mortgagee, drew attention to s. 42 of the Act which contains similar provisions to s. 72 for responsibility on the part of a person who "directly or indirectly causes it to be carried out", though s. 42 lacks the requirement of "profit or reward" contained in s. 72. The implied premise in Mr. Douglas' argument, as it seems to me, is that it would be extraordinary that a financier or mortgagee (who presumably does not hold a contractor's licence) might be thought to have committed an offence under s. 42 by merely engaging various builders and sub-contractors to perform work. Another implied premise in the argument, as it seems to me, is that one should therefore read down the words "directly or indirectly causes it to be carried out" in both s. 42 and s. 72. However, as mentioned at the outset, a question of fact is involved. If a mortgagee or financier descends into the building arena to the extent that it fulfils the requirements of these sections, there is nothing unacceptable in its becoming liable to the respective disadvantages that arise under these sections.
- In the present matter I consider that Pincus J.A. has rightly emphasized the circumstance that at this preliminary stage in the proceedings, the question is whether the material reveals that the respondent mortgagee is capable of being affected by the review before the Queensland Building Tribunal. I record my full agreement with the reasons which have been prepared by his Honour, and with the orders that he proposes.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 5499 of 1998
Brisbane
| Before | Pincus J.A. Thomas J.A. Byrne J. |
[Baulderstone Hornibrook P/L v. BFC]
BETWEEN:
BAULDERSTONE HORNIBROOK PTY LTD
(ACN 002 625 130)
(Applicant) Appellant
AND:
BENEFICIAL FINANCE CORPORATION LIMITED
(ACN 007 597 202)
(Respondent) Respondent
REASONS FOR JUDGMENT - BYRNE J.
Judgment delivered 6 November 1998
- I agree with Pincus J.A. that the respondent (“the mortgagee”) is a “person who ... carried out the building work” within s. 72(2)(d) of the Queensland Building Services Authority Act 1991 because the mortgagee caused that work to be carried out: see s. 72(8)(a)(ii). To his Honour's reasons for that conclusion, with which I agree, I would add that the contrast between the words used in s. 72(2)(c) (“a ... contractor by whom the ... work was carried out”) and those in para. (d) (“a person who, for profit or reward, carried out the building work”) (my emphasis) fortifies the view more immediately indicated by s. 72(8)(a)(ii) that here the mortgagee carried out the building work.
- If the work was done by the mortgagee “for profit or reward” (s. 72(2)(d)), a direction for rectification may be made although the work was completed before the material amendments came into force. In my opinion, there is no sufficient reason to construe those remedial initiatives as intended not to apply to events antecedent to their commencement, especially in view of the time limitation on rectification directions imposed by s. 72(5). As Pincus J.A. demonstrates, the reasoning in R v. His Honour Judge Given, ex parte Builders' Registration Board of Queensland [1985] 2 Qd R 32 strongly supports such an interpretation. And, in my opinion, the discussions of general principle in George Hudson Limited v. The Australian Timber Workers' Union (1923) 32 CLR 413, 433-434, 447-448, Nicholas v. Commissioner for Corporate Affairs [1988] VR 289, 296-299 and Antonelli v. Secretary of State for Trade and Industry [1998] 2 WLR 826, 833-835 point in the same direction.
- The Queensland Building Tribunal found “on the basis of the evidence” that the mortgagee had entered into relevant contracts “for profit or reward”, but the facts supporting that finding do not clearly emerge. As Pincus J.A. explains, on such material as is now before us, it cannot be decided that the appellant has no prospect of establishing that the material contracts were let “for profit or reward” within the meaning of s. 72(2)(d). It may be, for example, that the entry into possession was accompanied by some arrangement between mortgagor and mortgagee that the mortgagee was to receive pecuniary gain beyond the amount of the principal and interest secured. As Thomas J.A. explains, several factual possibilities might mean that the mortgagee's arrangements could constitute the carrying out of the work “for profit or reward”. Joinder under s. 99(4) of the 1991 Act was therefore appropriate on the footing that the mortgagee “may be affected by the review” because it might yet be the subject of a rectification direction under s. 72.
- In these circumstances, I do not find it necessary to decide whether, in general, a mortgagee entering into a building contract with the sole object of recovering only the amount secured thereby carries out the work “for profit or reward” within s. 72(2)(d).
- I agree with the reasons of Pincus J.A. concerning the Nickelseekers case and with the orders his Honour proposes.