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  4. Turnbull Constructions Pty Ltd v Queensland Building and Construction Commission - [2023] QCAT 370

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Turnbull Constructions Pty Ltd v Queensland Building and Construction Commission[2023] QCAT 370

Turnbull Constructions Pty Ltd v Queensland Building and Construction Commission[2023] QCAT 370

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Turnbull Constructions Pty Ltd v Queensland Building and Construction Commission [2023] QCAT 370

PARTIES:

turnbull constructins pty ltd

(applicant)

v

Queensland building and construction commission

(respondent)

APPLICATION NO/S:

GAR517-22

MATTER TYPE:

General administrative review matters

DELIVERED ON:

11 September 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

  1. Application to join Arved Pty Ltd as Trustee for the Wagner Family Trust trading as Wagner Soil Testing as a party to the application for review is dismissed.

By Consent:

  1. Matthew Kemp be joined as a respondent to the proceeding.
  2. Indiatim Pty Ltd as trustee for the Indiatim Trust be joined as a respondent to the proceeding.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JOINDER OF PARTIES TO A PROCEEDING – PARTIES – BUILDIGN AND CONSTRUCTION GENERALLY – where applicant constructed a domestic residence in accordance with engineering drawing based on soil test in a site classification report – where residence experience subsidence – where question whether site classification report was accurate – where respondent issued a direction to rectify to the applicant because of the subsidence – where respondent applied to join the provider of the site classification report as a party to the proceeding – where no order can be made against that party in the review proceeding – whether party to be joined would be bound or have the benefit of the decision under review – whether the party to be joined interests may be effected – whether utility in the joinder – whether party to be joined amendable to any order of the tribunal in the review application – whether exercise of discretion favours joinder

Queensland Civil and Administrative Tribunal Act s 42.

Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority (No 2) [2012] QCATA 241

APPEARANCES &

REPRESENTATION:

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]
    In 2018 Turnbull Constructions Pty Ltd purchased land at Morayfield and constructed a residential dwelling on the land. When the house was finished, the house was sold to Matthew Kemp. After moving into the house and within about a year he noticed signs of movement in the house. By 2021 the movement had become worse and inspections revealed there was significant subsidence impacting many areas of the house. An example is in the complaint by Mr Kemp that the “back end of house” had a “100mm drop in floor level form the kitchen”.[1]
  2. [2]
    A complaint was made to the Queensland Building and Construction Commission and after investigation it decided to issue a direction to rectify (DTR) to Turnbull Constructions to rectify the subsidence issue. After receiving the DTR Turnbull Constructions filed an application to review the QBCC’s decision. The basis of the review is that Turnbull Constructions did not engage in defective or incomplete building work. The house footing and slab was constructed in accordance with the engineering drawings provided by Timothy Peters of Indiatim Pty Ltd as trustee trading as WJ Dalton Consulting Engineers. The engineering drawings were based on a Soil Compaction and Site Classification Reports from Wagner Soil Testing.
  3. [3]
    Furthermore the building work based on the engineering design and to be carried out by Turnbull Constructions was approved and certified by Peter Wyatt of Wyatt Building Certification Pty Lt. In June 2018 Mr Wyatt issued a Form 16 – Aspect Inspection Certificate in relation to the foundation described as “Waffle Raft Floor Slab Preparation”. He ultimately issued a Form 21 – Certificate of Final Inspection.
  4. [4]
    It is on the basis of this brief history that Turnbull Constructions submits that it constructed the house in accordance with engineering design, based on the soil test, and is therefore not responsible for the subsidence.
  5. [5]
    The QBCC has filed an application to join “three affected parties” to the proceeding. They are:
    1. Mr Matthew Kemp, the homeowner
    2. Indiatim Pty Ltd as trustee trading as Dalton Consulting Engineers; and
    3. Arved Pty Ltd as trustee trading as Wagner Soil Testing (“Wagner”) who undertook to provide site classification works at the property.
  6. [6]
    Subsequent to being served with the application to be joined as a party, both Mr Kemp and Dalton Consulting Engineers have consented to be joined as parties.
  7. [7]
    Wagner has opposed the application to join it as a party. Therefore the question to be determined in this application is whether the Tribunal should, in the exercise of its discretion, order it be joined to the proceeding. Section 42 of the QCAT provides that:
  1. The tribunal may make an order joining a person as a party to a proceeding if the tribunal considers that—
  1. the person should be bound by or have the benefit of a decision of the tribunal in the proceeding; or
  1. the person’s interests may be affected by the proceeding; or
  1. for another reason, it is desirable that the person be joined as a party to the proceeding.
  1. The tribunal may make an order under subsection (1) on the application of a person or on its own initiative
  1. [8]
    Wagner’s solicitors have filed submissions in support of its opposition to the joinder. It relies on two basis for doing so:
    1. Joining Wagner…would unnecessarily expand the scope of the review proceeding far beyond that of a review of an administrative decision and run contrary to the objects of the QCAT Act to proceed in an economical manner;
    2. Wagner’s interest are not affected by the review proceedings in that it is not amenable or bound by any decision made in the review proceedings (as it currently exists), because Wagner is a company that provided geotechnical services and not building services. Further, Wagner is not licenced to undertake the allegedly defective building work, Accordingly, it will not be amendable to an order of the Tribunal in the review proceedings because there is no capability for Wagner to rectify the defective or remedy the consequential as alleged.
  2. [9]
    Wagner relies on the appeal tribunal’s decision in Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority[2] which went into some detail about the joinder of parties in review applications. I respectfully adopt the observations in that case for the purposes of these reasons.
  3. [10]
    The first and relevant point to make is that if Wagner is joined, it will necessarily incur considerable time and expense in participating in the hearing of the proceeding. Not only that, in the end, no order can be made against it because it did not engage in any building work. The only order the Tribunal can make under s 24 of the QCAT Act is to:
    1. Confirm or amend the QBCC’s decision;
    2. Set aside the decision and substitute its own decision; or
    3. Set aside the decision and return the matter for reconsideration by the QBCC.
  4. [11]
    Wagner will not be bound by any decision not will it get the benefit of any decision by the Tribunal, unless of course there is a finding that there were no issues with the Wagner soil test. However, it is for Wagner to decide if it wants to enter the fray to seek that outcome in this application.
  5. [12]
    Wagner submits that both Turnbull Constructions and the QBCC have already undertaken extensive and detailed investigations including;
    1. Production of a structural report by EDGE Consulting Engineers (formerly WJ Dalton) on behalf of Turnbull Constructions;
    2. A further geotechnical report by Pacific Geotech of 8 November 2021;
    3. A report by Engineering & Building Investigation Services of 3 and 10 June 2022 commissioned by the QBCC;
    4. A subsidence report produced by the QBCC date 30 August 2022;
    5. The site investigation report already produced by Wagner dated 18 August 2021.
  6. [13]
    Not only that, but there is also further evidence from aerial photos that demonstrate the building site or part of it was formally a dam.
  7. [14]
    If joined it would be expected that individuals from Wagner would put on evidence and be cross-examined on that evidence if there was a hearing. The only advantage of this would be to both Turnbull Constructions and Mr Kem who potential have common law rights against Wagner.
  8. [15]
    I accept and agree with the submission of the applicant that an additional party would expand the scope of the case in circumstances where there is already ample evidence going to geotechnical issues.
  9. [16]
    I see no basis for broadening the scope of this review application by adding additional parties against their will. The relevant parties to this review application are Turnbull Constructions and the QBCC.
  10. [17]
    Wagner also submit that there is no utility in the joinder because Wagner will not be amenable to any order of the Tribunal in the review application. This is obviously correct and it relies on what was said in Coral Homes by Member Fitzpatrick at [49]. That is whether a person’s interest are affected sufficiently to warrant joinder will depend upon a consideration as to whether that party “may be amenable to an order and whether the benefits of joinder justify the costs to the parties of the joinder”.
  11. [18]
    Wagner also submits that contrary to the QBCC submissions joinder will not result in enabling all issues in dispute between the parties to be resolved. Clearly, as I said above, either Mr Kamp, or Turnbull Constructions may have common law rights against Wagner, depending of course on the evidence going to geotechnical issues.
  12. [19]
    Wagner, has no ability to carry out any rectification work nor remedy any damage caused by the subsidence. There is no basis upon which Tribunal or the QBCC can issue any direction to rectify to Wagner.
  13. [20]
    There is no doubt that joining Wagner would lead to increased delay and costs. Although geotechnical issues appear to be at the heart of this case, there is ample evidence before the Tribunal to decide whether Turnbull Constructions carried out defective or incomplete work to justify the direction to rectify. Adding another layer of evidence will not necessarily assist in determining that question.
  14. [21]
    Finally, I again adopt what was said in Coral Homes at [14]:

To include parties in contentious litigation without their consent is a serious matter and will not be done lightly. That is why the section confers a discretionary power on the Tribunal. The applicant for an order to join another party must demonstrate not only that the party may be affected by the proceeding but also there is, within that proceeding, here a review of an administrative decision, some utility or purpose in the joinder. This is particularly so given the broad basis upon which a person might have standing to bring an application to either be joined as a party to a or, to apply to a proceeding or to join another party. The threshold to establish that their interest, “may be affected” is easily crossed

  1. [22]
    I am not persuaded that Wagner will be bound by or get the benefit of any decision in the review proceeding. Quite to the contrary, the joinder can be used by the other parties to gather evidence to advance any common law claim they might choose to bring against Wagner. I also cannot see how it is in the interest of Wagner to be joined against its express opposition to the joinder.
  2. [23]
    Therefore I propose to dismiss the application insofar as it relates to Wagner.

Footnotes

[1]Annexure A to the application to review paragraph 42.

[2][2012] QCATA 242

Close

Editorial Notes

  • Published Case Name:

    Turnbull Constructions Pty Ltd v Queensland Building and Construction Commission

  • Shortened Case Name:

    Turnbull Constructions Pty Ltd v Queensland Building and Construction Commission

  • MNC:

    [2023] QCAT 370

  • Court:

    QCAT

  • Judge(s):

    Member Richard Oliver

  • Date:

    11 Sep 2023

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
Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority [2012] QCATA 241
1 citation
Jump To
Cite 1 - [2012] QCATA 241
Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority (No 2) [2012] QCATA 242
1 citation
Jump To
Cite 1 - [2012] QCATA 242

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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