Nicholls v Queensland Building and Construction Commission
[2017] QCAT 325
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- Unreported Judgment
- Nicholls v Queensland Building and Construction Commission[2017] QCAT 325
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Nicholls v Queensland Building and Construction Commission[2017] QCAT 325
Nicholls v Queensland Building and Construction Commission[2017] QCAT 325
CITATION: | Nicholls v Queensland Building and Construction Commission [2017] QCAT 325 |
PARTIES: | Steven Geoffrey Nicholls (Applicant) |
v | |
Queensland Building and Construction Commission (Respondent) | |
APPLICATION NUMBER: | GAR082-17 |
MATTER TYPE: | General administrative review matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Deane |
DELIVERED ON: | 25 September 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JOINDER OF CAUSES OF ACTION AND OF PARTIES – PARTIES – where an application for review of a decision that an agreement was a domestic building contract, and that that contract was validly terminated, has been brought by a builder – where the agreement subject of the decision under review arose in an earlier dispute between the builder and the homeowners – where the Queensland Building and Construction Commission has applied to join the homeowners as respondents to the review – whether the homeowners should be joined Queensland Building and Construction Commission Act 1991 (Qld), s 71, s 86 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 24, s 28, s 42 A B Hill Constructions Pty Ltd v Queensland Building and Construction Commission [2015] QCAT 46 Body Corporate for London Woolstores Apartments & Ors v QBSA [2011] QCAT 86 |
APPEARANCES: |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REPRESENTATIVES: | |
APPLICANT: | represented by Mr Jonathan Hitchcock of AJ & Co, Lawyers |
RESPONDENT: | represented by Mr Russell Ensby, Gadens, Lawyers |
REASONS FOR DECISION
- [1]Mr Nicholls performed building work for Mr and Mrs Rae. A dispute arose and Mr Nicholls commenced proceedings in the Tribunal’s domestic building dispute jurisdiction,[1] which resulted in a settlement agreement and detailed consent orders reflecting the agreement.
- [2]
- [3]The Raes purported to terminate the settlement agreement and made a claim against the statutory insurance scheme, administered by the Queensland Building and Construction Commission (QBCC).
- [4]Mr Nicholls seeks review of a decision of the QBCC dated 21 March 2017, which decided amongst other things that:
- the settlement agreement dated 4 August 2016 is a new domestic building contract; and
- the Raes properly terminated the new domestic building contract,
having the consequence that a claim may be approved and payments made out of the statutory insurance fund for non-completion of work, which would give rise to an entitlement to seek recovery of those payments from Mr Nicholls.[4]
- [5]A decision that a domestic building contract has been validly terminated, having the consequence of allowing a claim for non-completion under the statutory insurance scheme, is a reviewable decision.[5]
- [6]
- [7]The Tribunal may make an order joining a party if it considers the person should be bound by, or have the benefit of, the decision; the person’s interests may be affected; or for another reason it is desirable that the person be joined.[8]
- [8]
- [9]In conducting the review, the Tribunal may confirm or amend the decision, set aside the decision and substitute its own or set aside the decision and return the matter to the decision maker for reconsideration.[11]
- [10]The current parties were directed[12] to file a Joint Statement setting out, amongst other things, agreed facts and issues for the Tribunal to determine. The current parties have not yet filed the Joint Statement. Nevertheless, based on the information before me at this stage, the issues for determination will include whether the settlement agreement between the Raes and Mr Nicholls is a domestic building contract, whether Mr Nicholls’ conduct (including seeking further directions and seeking a re-opening of the consent decision) was repudiatory, whether the settlement agreement was capable of being terminated by the Raes and, if so, whether it was validly terminated by the Raes.
- [11]Whilst the issues are largely legal issues, it is likely the Tribunal will be informed by evidence from the Raes concerning some or all of these issues. In particular, the steps they took to allegedly validly terminate will be relevant to the Tribunal’s task in reviewing the decision.
- [12]If the Tribunal sets aside the QBCC’s decision in these proceedings, it is not difficult to see that such a decision may affect the Raes’ rights, in particular to receive payment under the statutory insurance scheme. A decision to disallow a claim under the statutory insurance scheme is a reviewable decision.[13] The Raes may also seek review of such a decision. Similarly, were the Tribunal to return the decision to the QBCC to reconsider, any reconsidered decision would be reviewable by the Raes as well as Mr Nicholls.
- [13]In addition to meeting the threshold test, the Tribunal has accepted that there must be utility and purpose in joining the proposed party.[14]
- [14]The QBCC’s application to join was filed on 15 June 2017, at a quite early stage of these proceedings, before the statement of reasons and the documents pursuant to s 21(2) of the QCAT Act were filed.
- [15]In my view, it would be in the interest of an efficient disposal of the issues for the Raes to be joined so that they are bound by findings on, and able to address the Tribunal on, the issues for determination listed above. This is consistent with the objects of the QCAT Act to deal with matters in a way that is ‘fair, just, economical, informal and quick’ and to ‘promote the quality and consistency of tribunal decisions.’[15]
- [16]Mr Nicholls main objections to joinder are that:
- the questions to be determined are largely legal ones, and that the Raes have been self-represented in the previous disputes and are unlikely to be of much assistance to the Tribunal in resolving the legal questions;
- based on previous difficult dealings, joining the Raes is likely to significantly extend the length of the proceedings and the hearing and therefore the proceeding is likely to be more costly.[16]
- [17]The Tribunal is experienced in dealing with self-represented parties. The resolution of the legal questions will be dependent upon the factual matrix, with which the Raes will be in a position to assist the Tribunal.
- [18]I accept that any additional party will add to the length of the proceeding and hearing. This is to be balanced against the possibility, if the Raes are not parties to these proceedings, that separate proceedings may be required addressing substantially the same factual and legal questions as between the QBCC and the Raes, giving rise to the possibility of inconsistent findings and an extended timeframe for the resolution of all the issues. Mr Nicholls should have the benefit of a final decision in these proceedings (subject to appeals).
- [19]On balance, I find that the Raes should be joined so that the Tribunal has all relevant material before it to enable it to make the correct and preferable decision with all relevant facts[17] and so that the Raes are bound by the findings of fact and law.
- [20]I order accordingly. I further order the QBCC to provide all material filed to date in the proceedings, as well as this decision and reasons, to the Raes, and make directions for the future conduct of the matter including extending the dates for compliance with recent directions and that the Raes file any statements they intend to rely upon.
Footnotes
[1] Proceeding BDL115-15.
[2] Applications for Miscellaneous Matters in BDL115-15, filed 16 December 2016 and 10 January 2017.
[3] Application REO004-17, filed 22 February 2017.
[4] Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act), s 71.
[5] QBCC Act, s 86(1)(i).
[6] Submissions of Mr and Mrs Rae filed 24 July 2017.
[7] Submissions of the QBCC filed 15 June 2017; Submissions of Mr Nicholls filed 24 July 2017.
[8] QCAT Act, s 42(1).
[9] Body Corporate for London Woolstores Apartments & Ors v QBSA [2011] QCAT 86, [19] - [20].
[10] Commercial and Consumer Tribunal Act 2003 (Qld), s 53 and the Queensland Building Tribunal Act 2000 (Qld), s 45(1)(b).
[11] QCAT Act, s 24.
[12] Direction no 1, 3 August 2017.
[13] QBCC Act, s 86(1)(h).
[14] A B Hill Constructions Pty Ltd v Queensland Building and Construction Commission [2015] QCAT 46.
[15] QCAT Act, s 3(b), s 3(c).
[16] Submissions of Mr Nicholls, filed 24 July 2017.
[17] QCAT Act, s 28(3)(e).