Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCAT
  3. 2021
  4. Gedoun Constructions Pty Ltd v Queensland Building and Construction Commission - [2021] QCAT 142

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Gedoun Constructions Pty Ltd v Queensland Building and Construction Commission[2021] QCAT 142

Gedoun Constructions Pty Ltd v Queensland Building and Construction Commission[2021] QCAT 142

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Gedoun Constructions Pty Ltd v Queensland Building and Construction Commission & Anor [2021] QCAT 142

PARTIES:

Gedoun Constructions Pty Ltd

(applicant)

v

Queensland Building and Construction Commission

Mark Elliot AGius

(respondents)

APPLICATION NO/S:

GAR194-20

MATTER TYPE:

General administrative review matters

DELIVERED ON:

11 May 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Paratz AM

ORDERS:

  1. Gedoun Constructions Pty Ltd atf Gedoun Development Unit Trust is removed as the applicant in the proceeding.
  2. Gedoun Constructions Pty Ltd is joined as the applicant in the proceeding.
  3. The Application for miscellaneous matters filed on 24 February 2021 by Mark Elliot Agius, to dismiss the Application to review a decision filed by Gedoun Constructions Pty Ltd atf  Gedoun Development Unit Trust on 8 June 2020, is dismissed.
  4. The matter is to be set for a Directions Hearing at 11:30am on 3 June 2021 together with GAR140-20, GAR193-20, GAR373-20 and GAR392-20.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JOINDER OF CAUSES OF ACTION AND OF PARTIES – PARTIES – GENERALLY   where a company as trustee was named as the applicant to a review proceeding – where the trust did not hold a Queensland builder’s licence – whether the trust should be removed as the applicant – whether the company holding a Queensland builder’s licence should be joined as the applicant – whether an applicant can be effectively substituted under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – whether the proceeding should be dismissed

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(1), s 42(1)(a), s 42(2)(b), s 42(3), s 47(1)

Uniform Civil Procedure Rules 1999 (Qld) r 69

Ward & Anor v Williams [2019] QCAT 136

APPEARANCES &

REPRESENTATION:

 

Applicant:

Connolly Suthers, Lawyers

Respondent:

QBCC: Norton Rose Fulbright

Mr Agius: Self-represented

 

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. [1]
    Gedoun Constructions Pty Ltd (‘the builder’) contracted to build a residential home for Mark Elliot Agius (‘the owner’) in Townsville, Queensland.
  2. [2]
    The Queensland Building and Construction Commission (‘the QBCC’) made a decision on 26 May 2020 that the builder was responsible for work at the property and issued a Direction to Rectify and/or Complete no. 0106161 to the builder on 28 May 2020.
  3. [3]
    Gedoun Constructions Pty Ltd atf Gedoun Development Unit Trust (‘the Trust’) filed an Application to Review a Decision in relation to the matter on 8 June 2020.
  4. [4]
    The owner filed an Application for Miscellaneous Matters on 3 November 2020 (‘the application to dismiss’) applying to dismiss the application to review a decision filed by the builder.
  5. [5]
    I gave directions on 8 February 2021 that the application to dismiss would be determined on the papers, after receipt of submissions. This is the decision in relation to that application.

Submissions of the owner

  1. [6]
    The owner filed submissions attached as Appendix 1 to his application to dismiss.[1]
  2. [7]
    The fundamental argument of the owner is that the named applicant in this matter ‘Gedoun Constructions Pty Ltd atf Gedoun Development Unit Trust’, which has Australian Business Number 52 284 873 581, does not hold a QBCC licence as a builder, and that it therefore does not have standing to bring the application to review, and that the proceeding is an abuse of process.
  3. [8]
    The owner submits that the QBCC has issued directions to ‘Gedoun Constructions Pty Ltd’, which has Australian Business Number 78 011 074 829, and holds a QBCC licence.
  4. [9]
    The owner submits as follows:
  1. The applicant, that is ‘Gedoun Constructions Pty Ltd atf Gedoun Development Unit Trust’ listing the Australian Business Number 52 284 873 581 does not have locus standi to review matters of an unrelated entity, nor be recognised as a party in any of the listed General Administrative Reviews currently afoot in the Queensland Civil and Administrative Tribunal.
  1. The QBCC licensee numbered 23628 has not made a legitimate external review request.

…….

  1. The second respondent respectfully submits the applicant does not have forum, nor locus standi to request a review and that the tribunal does not have jurisdiction to carry out the review with an unlicensed entity to which the decision was not handed down on.
  1. The applications of the applicant are entirely an abuse of process which the second respondent requests immediately the tribunal dismiss intended to frustrate the party aggrieved and stall justified and legitimate disciplinary actions by the QBCC, as well as stall Home Warranty Scheme rectification to the relevant property which is unsafe for occupation and extensively non-compliant to the Building Code of Australia.

…..

  1. The tribunal is requested to resist any attempts to ‘swap’ the applicant out.

Submissions of the Trust

  1. [10]
    The Trust filed submissions in Response to the application to dismiss.
  2. [11]
    The Trust submits that the company is the same legal entity when it conducts business as a trustee and when it conducts business in its own right, and that the owner has not demonstrated the relevance of its obligations as a trustee to its standing in the proceeding or how it should describe itself:[2]
  1. To obtain the relief sought Mr Agius would be required to demonstrate that the company Gedoun Constructions Pty Ltd, when it conducts business as a trustee (and refers to itself in documents, for example the contract, in that capacity), is a separate legal entity to the same company when it conducts business in its own right (and does not refer to itself as a trustee).

……

  1. It is neither unusual nor unlawful for a QBCC licensee, or any other business for that matter, to trade using a trust structure. Mr Agius has failed to engage to any extent with the issue of how the company’s obligation to account to beneficiaries as a trustee has any relevance to its capacity to hold a QBCC licence or its standing to bring proceeding, and how it should describe itself in those proceeding. The matters listed in paragraph 146(a) to (h) of his submissions are baseless conjecture.
  1. [12]
    The Trust submits that the Application to dismiss should be dismissed.

Submissions of the QBCC

  1. [13]
    The QBCC filed submissions in response to the application to dismiss.
  2. [14]
    The QBCC submits that the review application is competent and should continue.[3]
  3. [15]
    The QBCC submits that as the review application was commenced by the trustee, that the company, Gedoun Constructions Pty Ltd, is ‘present’ for the proceeding, and therefore the tribunal’s determination.[4]
  4. [16]
    In the alternative, the QBCC submits that if the tribunal finds that the review application should have been commenced by Gedoun Constructions Pty Ltd, then this reason is not sufficient to enliven the tribunal’s power to dismiss the review application,[5] and that directions could be made as to the identity of the applicant in that situation:[6]

5.13  In the event that the tribunal finds that the review application should have been commenced by Gedoun Constructions Pty Ltd, the tribunal can make a direction that the applicant to the proceeding be Gedoun Constructions Pty Ltd in accordance with s62(1) of the QCAT Act. Such a direction would ensure the speedy and fair conduct of the proceeding and would not cause any delay to the proceeding.

The Owner’s submissions in reply

  1. [17]
    In his submissions in reply,[7] the owner notes that the Direction to Rectify was issued to Gedoun Constructions Pty Ltd with ABN 78 011 074 829 holding QBCC builder’s licence 23628, which is the entity known to him as the entity who constructed his home.
  2. [18]
    The owner states in his response that he believes that this matter has been brought to delay rectification of his home:[8]
  1. I verily believe that the QCAT review case is without merit and has been requested entirely for the purposes of keeping procedurally fair directions to rectify off the builders licence was (sic) long as possible whilst other BDL QCAT civil cases proceed. This is an apparent abuse of process intended frustrate and stall the necessary rectification of dangerous defective works at my home.

Discussion

  1. [19]
    The identity of the builder is shown by the principal documents:
    1. (a)
      The owner has attached an extract of the residential building contract[9] which shows the ‘Contractor’ as ‘Gedoun Constructions Pty Ltd’; and the QBCC licence number as 23628, which is the licence number of ‘Gedoun Constructions Pty Ltd’.
    2. (b)
      The Direction to Rectify was issued to ‘Gedoun Constructions Pty Ltd’.
  2. [20]
    The applicant named on the application to review a decision is Gedoun Constructions Pty Ltd atf Gedoun Development Unit Trust. No clear explanation has been offered as to why the Trust has been named as the applicant.
  3. [21]
    The applicant on the Application to review should clearly have been the person against whom the decision was given, which was Gedoun Constructions Pty Ltd.
  4. [22]
    In order to regularise the proceeding, it would be appropriate to substitute Gedoun Constructions Pty Ltd as the applicant on the Application to review a decision.
  5. [23]
    The owner opposes the identity of the applicant being ‘swapped out’. He suggests that the naming of the Trust as the applicant is part of a deliberate manipulation by the builder to avoid the building company being shown on the public register as being directed to rectify defects, and that the proceedings are an abuse of process.
  6. [24]
    Gedoun Constructions Pty Ltd is entitled to seek a review of the decision to issue a direction to rectify to it, as the QBCC submits. It is in the interests of justice that such a review be conducted as quickly as possible.
  7. [25]
    The tribunal has discretion as to the procedure for a proceeding.[10]
  8. [26]
    The tribunal may make an order joining a person as a party to a proceeding if it considers that the person should be bound by or have the benefit of a decision of the tribunal in the proceeding;[11] and may order that a party be removed from a proceeding if it considers that the party is not a proper or necessary party to the proceeding, whether or not the party was one originally.[12] Such an order may be made by the tribunal on its own initiative.[13]
  9. [27]
    The tribunal may dismiss an application if it considers that it is:[14]
    1. (c)
      frivolous, vexatious or misconceived; or
    2. (d)
      lacking in substance; or
    3. (e)
      otherwise an abuse of process.
  10. [28]
    A party should not be summarily deprived of its right to review a decision simply because of a procedural error, if none of the elements required to justify dismissing an application are substantiated.
  11. [29]
    Whilst the owner alleges that the bringing of the review application by the builder is an abuse of process, and designed to delay rectification of defects to his home, it is not established that this is the intent or effect of the review application.
  12. [30]
    The Trust’s submissions indicate that it considers that the status of the company when it acts in its own right, or as trustee, is not as a separate legal entity. There is no suggestion that the company in its own right would be prejudiced by being named as an applicant in the proceeding.
  13. [31]
    The identity of the applicant can be simply remedied by the tribunal making orders effectively substituting the company ‘Gedoun Constructions Pty Ltd’ as the applicant.
  14. [32]
    The tribunal has noted that it does not have express power to substitute an applicant,[15] which is in contrast to the Uniform Civil Procedure Rules[16] which expressly refer to substitution (although no specific process is identified). The Tribunal may however order the removal or joinder of a party. The effect of substitution can be achieved by removing the existing applicant and joining the company as the applicant.
  15. [33]
    I do not consider that substitution of the applicant will cause any delay to the proceeding, but will remove the question of identity as an issue and enable the proceeding to concentrate on the merits of the review itself.
  16. [34]
    I order that Gedoun Constructions Pty Ltd atf Gedoun Development Unit Trust be removed as the applicant in the proceeding, on the tribunal’s initiative, and that Gedoun Constructions Pty Ltd be joined as the applicant in the proceeding, on the tribunal’s initiative.
  17. [35]
    I order that the application to dismiss the application to review be dismissed.
  18. [36]
    There are four other related matters which should be considered with this matter as further directions are made.
  19. [37]
    The matter should now proceed, and I direct that the matter be set for a Directions Hearing on 3 June 2021, together with GAR140-20, GAR193-20, GAR373-20 and GAR392-20.

Footnotes

[1]Filed on 24 February 2021 in the Magistrates Court Registry at Townsville, and received by the Tribunal Registry at Brisbane on 2 March 2021.

[2]Outline of submissions (filed on behalf of the applicant) 8 March 2021.

[3]QBCC submissions in response to application to dismiss proceeding 8 March 2021, [1.2].

[4]Ibid [5.11].

[5]Ibid [5.12].

[6]Ibid [5.13].

[7]Response in reply – GAR 194-20 – External Review, filed in the Magistrates Court Registry at Townsville on 18 March 2021, and the Tribunal Registry at Brisbane on 23 March 2021.

[8]Ibid [13].

[9]Appendix B to application to dismiss, p1.

[10]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(1).

[11]Ibid s 42(1)(a).

[12]Ibid s 42(2)(b).

[13]Ibid s 42(3).

[14]Ibid s 47(1).

[15]Ward & Anor v Williams [2019] QCAT 136, [6].

[16]Uniform Civil Procedure Rules 1999 (Qld) r 69.

Close

Editorial Notes

  • Published Case Name:

    Gedoun Constructions Pty Ltd v Queensland Building and Construction Commission & Anor

  • Shortened Case Name:

    Gedoun Constructions Pty Ltd v Queensland Building and Construction Commission

  • MNC:

    [2021] QCAT 142

  • Court:

    QCAT

  • Judge(s):

    Member Paratz AM

  • Date:

    11 May 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Ward v Williams [2019] QCAT 136
2 citations
Jump To
Cite 1 - [2019] QCAT 136
Cite 2 - [2019] QCAT 136

Cases Citing

Case NameFull CitationFrequency
Applicant HC v Director-General, Department of Justice and Attorney-General [2022] QCAT 3251 citation
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.