Body Corporate for Grande Florida Community Title Scheme 26606 v De Haas
[2002] QDC 177
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Body Corporate for Grande Florida Community Title Scheme 26606 v De Haas[2002] QDC 177
Body Corporate for Grande Florida Community Title Scheme 26606 v De Haas[2002] QDC 177
DISTRICT COURT | No 38 of 2002 |
CIVIL JURISDICTION
JUDGE BRABAZON QC
BODY CORPORATE FOR GRANDE FLORIDA COMMUNITY TITLE SCHEME 26606 Appellant
and
EVERT DE HAASRespondent
SOUTHPORT
DATE 10/04/2002
JUDGMENT
HIS HONOUR: This is an appeal against a decision of the Magistrates Court. The learned Magistrate decided that the third party in the action, the body corporate for the Grande Florida Resort should also be made a defendant to the plaintiff's claims.
The accident which gave rise to this litigation was on 23rd January 1998. The plaintiff, a visitor from Holland, says that he fell on steps near the swimming pool at the resort. He says that he injured his back. A plaint was issued on the 18th November 1998 and a defence was filed on the 16th of December 1998.
In that pleading the defendant, who is the manager of the body corporate, denied that it was the owner and occupier of the premises on the basis that the body corporate for the building was the owner and occupier. (It may be noted that in the pleadings the body corporate is treated as the owner and occupier of the common property. While that may be inaccurate, nothing turns on the point as section 38 of the Body Corporate and Community Management Act provides that a body corporate may sue and be sued for rights and liabilities related to the common property as if the body corporate were the owner of the common property.)
On 17th March 1999 the defendant provided further and better particulars of the above allegation. It said that it did not exercise any control rights over the body corporates and that, to the best of the manager's knowledge, the body corporate was the employer of a Mr Peter Watts, a worker who hosed down the pool area just prior to the alleged injury. That was a relevant piece of information because there were allegations that the steps were wet at the time and that was a reason for the plaintiff's fall.
On 14th June 1999 the defendant obtained leave to issue a third party notice directed to the body corporate. (At times it seems there were two body corporates for adjoining parts of the common property, but at the present time there is only one body corporate.)
The third party notice was issued on 19th December 2000. On 23rd January 2001, the time limit of three years for commencing proceedings in a personal injury action expired. Shortly after that on the ninth of March 2001 the body corporate filed its defence to the third party notice. Since then, it seems, the defendant has taken no further step against the third party.
On 31st July 2001 there was a conference between the plaintiff's solicitor and the solicitors for the defendant management company. The solicitors for the defendant said that their client had no money and no insurance. The consequences of that information are set out in the affidavit of the solicitor for the plaintiff.
He says that because of the allegations in the defence and the further and better particulars and because the defendant was the building manager and held management rights over the premises he was of the view that it was the “occupier” in law and that it was appropriate to proceed against it on behalf of the plaintiff. He believed that the primary legal responsibility lay with the defendant and, accordingly, he did not consider it necessary to proceed against the body corporate.
Having attended the settlement conference, it became apparent to him that the defendant may be unable to meet the judgment and the defendant may also be unable to pursue its third party proceedings because of a lack of funds. He then formed the view, he says, that it was necessary to make an application to add the body corporate as a defendant in the proceedings. He went on to say that there had been some delays because the plaintiff lived in Holland and communication with him was through a relative who lived in Melbourne.
The application was heard in the Magistrates Court on the 19th of December. Judgment was given on 21st December 2001. The reasons of the learned Magistrate recount the matters set out above and mention the authorities which are undoubtedly to be considered in applications of this kind. They are, in particular, the decision of Mr Justice Mackenzie in Jerome v. Hill (2000) QSC 91, the decision of Mr Justice Pincus in De Innocentis v. Brisbane City Council (2002) QdR 349, Bates v. Queensland Newspapers (2001) QSC 83 and Whittaker v. Commonwealth of Australia and State of Queensland (2001) QSC 79, another decision of Mr Justice Mackenzie.
He said that the principles mentioned in these cases and the facts led to the conclusion that the application should be allowed. Accordingly, he made an order that the body corporate be made a defendant to the plaintiff's claim. As part of his review of principle and the facts, he mentioned the rule under which the application was brought, which is rule 69 of the Uniform Civil Procedure Rules.
He explained that the real matter for consideration was whether or not the third party should be added as a defendant despite the fact that the limitation period had applied. He proceeded to consider whether or not rule 69(2)(b)(g) was satisfied.
“The court must not substitute a party after the end of the limitation period unless... for another reason the Court considers it just to include or substitute the party after the limitation period.”
If there had been no limitation period, the application would routinely have been allowed. The question is whether the learned magistrate correctly exercised his discretion in applying rule 69 to these facts.
It is submitted for the appellant here that the exercise of his discretion miscarried in two ways. Both of them are said to be contained in the final paragraph on page 3 of the learned Magistrate's reasons. There the learned magistrate referred to this plaintiff not having a surviving cause of action against any other party if the application were not allowed.
It is true that reference towards the conclusion of the judgment in the Whittaker application is rather cryptically expressed. However, it seems likely the learned Magistrate misunderstood what was said there. It seems to be a rather veiled reference to the possibility of a claim against the applicant's former solicitors. In any case, it seems to have been an irrelevant consideration here.
He then went on to refer again to Mr Justice Chesterman's decision in Bates' case, observing that this proposed defendant was not being asked to defend a separate and additional cause of action. It was submitted here that such an observation was not correct.
In this case, the manager's claim against the body corporate is to be indemnified according to the contractual arrangements between them. While that appears from the pleadings, it is also reinforced by Mr Kramer in his affidavit. Mr Kramer is the solicitor for the body corporate.
He points out that the only issue in the third party proceedings relates to whether the defendant is entitled to be indemnified by the third party pursuant to the terms of two agreements. He believes that the third party has a good defence to those claims. He then goes on to speak about the potential prejudice to the body corporate if it should be 10 joined as a defendant.
Uncertainty arises out of the relationship of the man who was doing the hosing of the pool area and the body corporate. Mr Kramer is unsure if that man was an employee of the body corporate at the time. He believed that he was most likely an employee or independent contractor associated with a business called Bocco Cleaning, who was an independent contractor responsible for cleaning the common areas.
It appears that nothing active has been done to investigate the circumstances of the accident. As he says, if the body corporate were to be joined then it would be necessary to take statements from Watts or Bocco about four years after the event.
It is not fair to say that the body corporate is not being asked to defend a separate and additional cause of action. In point of law it is different and, more importantly, in practical terms it would impose a new and additional burden on the body corporate outside the period of limitation. As the learned magistrate considered either irrelevant or mistaken matters, it is necessary for this court, on established principles, to exercise the discretion fresh.
The dominant factors which should be taken into account can be shortly summarised. The plaintiff personally is not at fault. His solicitor knew the position taken by the manager, about 22 months before the expiry of the limitation period. That is to say, that it was not an occupier and that someone employed by the body corporate had been involved. There has been no activity in the meantime in the third party proceedings apart from after the defence of the third party. The third party and its solicitors, it seems, have not actively been investigating the circumstances of the accident. It would suffer prejudice, were the application to be allowed.
Of course, the wish of an injured plaintiff to add the very person who now seems likely to be the real defendant is not itself sufficient to provide a reason for ordering a joinder out of time. If that was so, all applications of this kind would succeed and be found to be justly allowed. There has to be some additional reason, at least, why it would be just to allow the addition of the third party as a defendant at this stage. There is no such reason here.
The exercise of the discretion really results in a clear decision that the third party should not be joined as a defendant. If comparisons are needed, it would seem that there is more potential prejudice here than to the prospective defendant in Bates case.
The appeal is allowed. The order is that, in lieu of the order below, there be an order that the application be dismissed. Do I take it that costs simply follow the event here?
MR HARDING: Yes, I will be seeking costs, your Honour.
MR BRADY: I don't think there is anything I can say to that, your Honour.
HIS HONOUR: No, I don't think so. Well, gentlemen, these are the orders:
- The appeal is allowed.
- In lieu of the order in the Magistrates Court, substitute an order that the application be dismissed.
- Order that the appellant pay the respondent's costs of the application and the appeal to be assessed on the standard basis.