VSC Corporation Pty Ltd v Queensland Building and Construction Commission
[2024] QCAT 395
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- Unreported Judgment
- VSC Corporation Pty Ltd v Queensland Building and Construction Commission[2024] QCAT 395
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VSC Corporation Pty Ltd v Queensland Building and Construction Commission[2024] QCAT 395
VSC Corporation Pty Ltd v Queensland Building and Construction Commission[2024] QCAT 395
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | VSC Corporation Pty Ltd v Queensland Building and Construction Commission [2024] QCAT 395 |
PARTIES: | VSC Corporation Pty Ltd (applicant) v QUEENSLAND BUILDING and CONSTRUCTION COMMISSION (respondent) |
APPLICATION NO/S: | GAR242-24 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 20 August 2024 |
HEARING DATES: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Lumb |
ORDERS: | The Application to be joined to a proceeding filed by Adam Peel on 21 May 2024 is refused. |
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – general administrative review – adjoining owner made complaint to the Queensland Building and Construction Commission (‘QBCC’) in relation to consequential damage allegedly suffered as a result of work performed by the applicant/builder on an adjoining property – where QBCC issued a direction to rectify in relation to two complaint items – where the builder sought internal review of decision – where QBCC decided to give a direction to rectify in relation to one item but to not give a direction to rectify in relation to the other item – where builder applied to the Tribunal for external review of decision to give the direction to rectify – where adjoining owner applied to be joined as a party to the proceeding – where adjoining owner sought to be joined on the basis of challenging the decision not to give a direction to rectify – where adjoining owner had not applied to review decision insofar as it concerned the decision not to give a direction to rectify – whether joinder of adjoining owner to the proceeding is justified Queensland Building and Construction Commission Act 1991 (Qld), s 86 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 42 Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority [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
Introduction
- [1]By an Application to be joined to a proceeding filed on 21 May 2024 (‘the joinder application’), Adam Peel (‘Mr Peel’) has applied to be joined as a party to this proceeding. The proceeding was commenced by way of an Application to review a decision filed on 9 April 2024 (‘the Review Application’).
- [2]By the Review Application, the Applicant in this proceeding (‘VSC’) applies to review (part of) a decision of the Respondent (‘the QBCC’) made on (or shortly prior to) 20 March 2024 (‘the Review Decision’).
- [3]The Review Decision concerned two complaint items referred to as ‘item 1’ and ‘item 3’. These complaint items comprised two of four complaint items the subject of a residential and commercial construction work complaint lodged by Mr Peel on 28 June 2023. The complaint items related to property damage said to have been suffered to Mr Peel’s property (in Brisbane in the State of Queensland) in the course of construction work being conducted by VSC on an adjoining property.
- [4]Item 1 concerned an allegation of concrete being sprayed on to the garage wall of Mr Peel’s property, the wall being chipped from bricks and scaffolding, and render on the wall.
- [5]Item 3 alleged concrete render was sprayed on Mr Peel’s house and the aggregate concrete path which had left marks which cannot be removed, and that the renderer deliberately sprayed the concrete render on to Mr Peel’s property.
- [6]On or about 24 January 2024, the QBCC issued a direction to rectify to VSC in respect of consequential damage caused to Mr Peel’s property in respect of Items 1 and 3 (‘the Original DTR Decision’).[1]
- [7]On 20 February 2024, VSC applied for internal review of the Original DTR Decision.
- [8]By the Review Decision, the QBCC decided:
- to give a direction to rectify for Item 1;
- not to give a direction to rectify for Item 3.
- [9]By the Review Decision, VSC seeks that the Tribunal set aside that part of the Review Decision dealing with Item 1 and substituting it with the decision not to give a direction to rectify to VSC.
The merits of the joinder application
- [10]Subsection 42(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) provides:
- The tribunal may make an order joining a person as a party to a proceeding if the tribunal considers that—
- the person should be bound by or have the benefit of a decision of the tribunal in the proceeding; or
- the person’s interests may be affected by the proceeding; or
- for another reason, it is desirable that the person be joined as a party to the proceeding.
- [11]
- [9]Section 42 of the QCAT Act broadened the scope of those parties that might be joined by introducing into subsection (1)(b), of the words “may be” affected. As Member Barlow said in Body Corporate for London Woolstores Apartments & Ors v QBSA the test for whether a part’s interests are affected is now not as high as under the previous legislation but simply because a party’s interests may be affected does not mean, as a matter of course, that an order joining a party should be made.
- [10]It is not difficult to envisage situations where person’s interests might be affected by a proceeding, particularly in building cases and in reviews of decisions of the QBSA. A licensed builder is responsible for all building work in the construction of home. All trades people who work on the building as subcontractors may have interests that may be affected by a review of a direction to rectify issued to a builder and therefore would fall within the ambit of s 42(1)(b). That of itself does not mean that simply because a subcontractor worked on a site the subcontractor, whose interests may be affected, should be joined as a party to the proceeding on the application of a party. This could lead to an absurd result.
- [11]There must be some utility or purpose in the joinder. It might be that the joinder would avoid duplication of the litigation or multiplicity of proceedings in other proceedings in the tribunal; there might be common question of fact or law involved in the proceeding; the joinder may enable all issues in dispute between affected parties to be finally determined; or it may be that the parties joined would be amenable to an order of the tribunal in the proceeding in the Tribunal. There are also questions of prejudice to the proposed parties in terms of costs, whether the process would be unnecessarily lengthened and, importantly, and whether the objects set out in s 3 of the QCAT would be achieved. These are some of the matters that might be taken into account in the exercise of discretion but are by no means exhaustive and each case would depend on its own particular circumstances.
(citations omitted)
- [12]On 16 April 2024, the Tribunal made directions, including a direction that any party who receives an application for joinder must file in the Tribunal any submissions in response by 4 June 2024. On 6 June 2024, the Tribunal directed that the time for compliance with that direction be extended to 24 June 2024. On 26 July 2024, the Tribunal directed that the time for compliance with the initial direction be extended to 9 August 2024. Despite these directions, neither VSC nor the QBCC has filed submissions in response to the joinder application.
- [13]As noted above, VSC has sought to review the Review Decision insofar as it concerns the decision to give a direction to rectify for item 1. Whilst I would accept that Mr Peel is a person whose interests may be affected by the proceeding in circumstances where VSC has sought to set aside the direction to rectify item 1, that is not the basis upon which Mr Peel has sought to be joined to the proceeding.
- [14]In the joinder application, Mr Peel states, amongst other matters:
I disagree with the Queensland Building and Construction Commission (QBCC) Internal Review Decision Reference: 2512679 (attached) dated 19 March 2024. I believe that the Tribunal should set aside the QBCC Internal Review Decision and reinstate the QCAT [sic] rectification No. 0111834 made on 24 January 2024 (attached). In my opinion, the QBCC Principal Review Officer has made an error in relation to complaint items 3 …
- [15]Mr Peel then provides arguments to support his challenge to the decision not to give a direction to rectify in relation to item 3.
- [16]In my view, the grounds relied upon by Mr Peel do not provide a proper basis for joinder to the proceeding. By virtue of s 86(1)(e) of the Queensland Building and Construction Commission Act 1991 (Qld) each of a decision to give a direction to rectify and a decision not to give a direction to rectify is a ‘reviewable decision’ pursuant to the QBCC Act.
- [17]A Decision Notice was issued by the QBCC to each of Mr Peel and VSC by correspondence dated 20 March 2024. Paragraph 1 of the Decision Notice stated:
I have decided:
- to give a direction to rectify for complaint item 1;
- not to give a direction to rectify for complaint item 3.
- [18]Paragraph 85 of the Decision Notice stated: ‘You have the right to have this decision externally reviewed in the Queensland Civil and Administrative Tribunal (QCAT). An external review application must be lodged with QCAT within 28 days of receiving this decision.’
- [19]The material before the Tribunal does not suggest that Mr Peel has filed an application to review the Review Decision, and the content of the joinder application suggests that this is not the case.
- [20]I consider that the joinder of Mr Peel to the current proceeding is not the proper vehicle for Mr Peel to challenge the decision not to give a direction to rectify for complaint item 3. That would require a separate application to review (and an extension of time to do so).
- [21]In circumstances where the joinder application does not identify grounds sufficient to warrant the joinder of Mr Peel to the proceeding (and where the joinder may have potential costs implications for Mr Peel), I consider that the joinder of Mr Peel to the proceeding is not justified.
Order
- [22]For the reasons set out above, the Application to be joined to a proceeding filed by Adam Peel on 21 May 2024 is refused.