1. Weir and Razzi rely on the ABN Lookup Search which reveals that:
   • the holder of the relevant ABN was 'Razzi Weir Group Unit Trust
   • the trading name was RAW Fire Safety Engineering and
   • the ABN was cancelled on 23 October 2017.
2. Weir and Razzi contend that this confirms that the entity conducting the business under the name Raw Fire was the Trust and not the partnership, as alleged. However, a Trust is not a legal entity. There must be a legal entity which is the trustee for the Trust and details of the trustee are not apparent from the ABN Search.

1. Weir and Razzi also contend that the inclusion of the relevant ABN on the Proposal and the Report in close proximity to the name Raw Fire confirms that the contracting party was the company and not the partnership.
2. Although the copies of the front and back pages of the Proposal exhibited to the affidavits are poor quality, it seems that the ABN is in small type under the Rawfire web address on the back page. This is the only place I can find it in the Proposal. The copies of the Report, which is identified as having been provided by Raw Fire, are also of poor quality and it seems that the ABN may be on the front cover, although I cannot be certain whether or not it is. I have been unable to find any reference to the ABN in the body of either document.

1. Although Weir is identified as a Director in the proposal, not partner, I am not persuaded this is conclusive of him being a director of a trustee company. It is not unusual for businesses to have positions called 'director' which is not indicative of the incumbent being a director of a company. For instance, there are a number of 'director' positions in the Tribunal, which are simply position titleS.

1. The Current Business Name Extract shows that Weir and Razzi carried on business as partners under the business name Raw Fire between 6 June 2006 and 23 October 2017. There is no explanation in either of the affidavits by Weir or Razzi as to how the business name came to be registered to them personally, or its cancellation at the time of the dissolution of their business arrangements, including the cancellation of the ABN on the same date as the cancellation of the business name.

1. The FSE Agreement was included in the Proposal. A signed copy has been exhibited by Weir to his affidavit. It clearly shows that payments are to be made by EFT to 'Razzi Weir & Associates'. It is submitted on behalf of Weir and Razzi that this is further evidence of the contracting party being the company. However, there is nothing to indicate that the entity to whom the payments were to be made is a company, or even that it is the contracting party. This is simply the name of the Bank Account. Further, there is no ABN on the FSE Agreement.

1. In my view, nothing in the affidavits or the exhibits demonstrates that the information about Weir and Razzi's business arrangements was or could have been known by the building surveyor at the time Raw Fire was engaged to provide the fire safety services. Although this material might provide the basis for a defence for each of Weir and Razzi, it is not in my view sufficient to rebut what I am satisfied is an open and arguable case that they were the fire engineers. I note that there is no indication on the fee proposal or the fire report as to the owner of the business name, in the absence of which, and having regard to the Current Business Name Extract, I am satisfied it is arguable that the contract was with them personally and not with the company. Determination of the contracting parties will only be possible after all of the evidence has been considered and tested at the final hearing.
2. Weir and Razzi contend that the proposed pleadings do not include any detail as to how it is proposed to establish the existence of a partnership or how that partnership entered into the contract. I reject the submission that such details are required. In my view it is arguable, and sufficient for the purposes of this joinder application, for the building surveyor to rely on the Current Business Name Extract in the absence of any other information from Weir and Razzi at the time the contract was entered into, including a clear identification in the written documents as to who was entering into the contract with the developer.

IS THE CLAIM AGAINST THE FIRE ENGINEER APPORTIONABLE?

1. There is no dispute that the owners' claim is an apportionable claim, as it is a claim for economic loss. However, the fire engineers, contending the OC owns the wall cladding, submit that in its defence the builder only seeks to apportion the individual owners' claims. I reject this. On my reading of the builder's Points of Defence, the builder is seeking to apportion responsibility for the owners' claim for loss and damage, which includes the OC's claim for loss and damage, noting the OC is the first applicant.
2. In opposing joinder for the purposes of the building surveyor's Part IVAA apportionment defence, much of the fire engineers' submissions are predicated on the proposition that they did not owe a duty of care to the OC, as the owner of the wall cladding. Although Weir and Razzi state in their respective affidavits that it is clear from the Plan of Subdivision that the wall cladding is owned by the OC, in my view, the respective claims of the owners, including whether the individual lot owners have any claims in relation to wall cladding, is a matter to be determined after the final hearing when all of the evidence has been considered.
3. In their written submissions the fire engineers refer to my comments in LU Simon Builders Pty Ltd v Allianz Australia Insurance Ltd & Ors[10] where I confirmed that a decision on proportionate liability should not be made until all of the evidence has been heard. Further, the question of whether the parties to be joined are concurrent wrongdoers in the sense that their actions caused the same loss or damage as the other respondents, falls to be determined at trial: Adams v Clark Homes[11]
4. The fire engineers also submit that it is novel to suggest that a duty of care is owned by an engineer to an OC in respect of design defects in this regard. The fire engineers seek to rely on Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288[12]. I refer to and repeat my comments in Owners Corporation 1 PS523454S v L.U Simon Builders Pty Ltd[13]
   1. In relation to the OCs claim the architect relies on the High Court decision in Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288[14] and the decision of the NSW Supreme Court in The Owners - Strata Plan No 74602 v Brookfield Australia Investments Ltd[15]. For the purposes of these Reasons only I will refer to these as 'Brookfield Multiplex' and 'Brookfield Investments'.
   2. In Brookfield Multiplex, the High Court held that the builder which constructed a serviced apartment complex, under a design and construct contract, did not owe a duty of care to the owners corporation to avoid pure economic loss. Mr Klempfner submitted, on behalf of the architect, that applying the same reasoning as the High Court in Brookfield Multiplex, that an architect does not owe a duty of care to an owners corporation.
   3. In Brookfield Investments the court held that no duty of care was owed to the owners corporation by Brookfield, which once again constructed an apartment building under a design and construct contract.
   4. In Brookfield Investments, Stevenson J, in discussing the High Court's determination that no duty of care was owed to the owners corporation relevantly said at [111]

Each member of the Court concluded that the owners corporation was not relevantly vulnerable, essentially because those that the owners corporation represented were adequately protected by contract and were sophisticated investors.

1. In particular, the court held that the owners corporation was not in a position of vulnerability because the statutory warranties under the Home Building Act 1989 (NSW) (similar to the s8 warranties) enured for the benefit of subsequent owners. However, once again, Brookfield Investments is concerned with a duty of care owed by a builder under a design and construct contract where the OC had the benefit of the statutory warranties owed to it by the builder. It is not concerned with a duty which may or may not be owed by an architect.
2. Mr Forrest referred me to Chan v Acres[16], where McDougall J held that whether an engineer, engaged to prepare structural drawings and to carry out inspections as requested, owed a duty of care to a subsequent owner could only be determined after the relationship between the parties had been examined.
3. In Chan the applicant home owner brought a claim against the owner-builder vendor who had renovated the home, the engineer who had been engaged by the vendor to prepare certain structural drawings and to carry out inspections of the structural work, as requested, and the local council which had been engaged by the vendor as the Principal Certifying Authority.
4. At [98] his Honour said:

Knowing that the other person may suffer loss is saying, in different words, that the other is, in the general sense of the work "vulnerable" to that loss. What is required to convert vulnerability from its generally accepted English meaning to the more limited and precise meaning that it has in this field of discourse? The answer is to be found, not at some abstract level of principle, but through detailed examination of the relationship.

What, then, are the detailed features of the relationship that create vulnerability in this special sense? Again, in my view, the question is not capable of answer at a high level of abstraction. Again, it requires analysis of all salient features of the relationship, with that analysis informed analogically, by reference to preceDEnt.

The judgments in Brookfield [Multiplex] reinforce the importance of examining "the salient features of the relationship"... It is only in doing so ... that the Court can determine whether one party was vulnerable, in the relevant sense and whether the other owed it a duty of care.

To my mind the reasoning in Brookfield shows that, in determining whether to impose a common law duty of care to avoid pure economic loss, in facts for which there is not precise authority (that is, where the precise duty of care has not been recognised in decided cases) the Court must look at the relevant features of the relationship between the plaintiff and the defendant. An essential feature is that the plaintiff must be shown to have been "vulnerable" in the sense explained, Reliance on the defendant and knowledge by the defendant of that reliance, will be at least an important and perhaps a necessary condition of vulnerability.

1. Justice McDougall confirmed the necessity of considering the precise facts to determine the existence of a duty of care in Owners Corporation SP 80609 v Paragon Construction (NSW) Pty Limited[17] at [11].
2. Further, they submit that the proposed pleading does no more than identify foreseeability and does not identify vulnerability. In paragraph 41 of the proposed APOD the building surveyor pleads:
   1. The Fire Engineers owed a duty of care to the applicants to exercise reasonable care when supplying services under the FSE Agreement to protect the applicants from suffering economic loss caused by defects in the FSE Services.

(a) The Fire Engineers knew, or ought to have known, that the first applicant would be vulnerable to suffering economic loss because it would acquire ownership of the common property upon registration of the plan of subdivision.

(b) The Fire Engineers knew, or ought to have known, that the second to twentieth applicants would be vulnerable to suffering economic loss because in the course of acquiring their private lots they would not:

(i) be provided with a practical opportunity to identify or assess the fire safety defects in the premises; or

(ii) have the necessary expertise to identify or assess fire safety defects in the premises/

(c) The Fire Engineers were required under Regulation 1502 of the Building Regulations to supply their services in a competent manner and to a professional standard.

(d) The Fire Engineers knew, or ought to have known, that the applicants would rely on the Fire Engineers to provide the FSE Services in a competent manner and to a professional standard.

1. These proposed pleadings are very similar to those set out by the builder in its Amended Points of Defence dated 8 November 2018 where generally no concerns as to their adequacy was raised by any of the respondents joined upon the builder's application. In any event, I am not persuaded that the vulnerability of the owners including the OC is not pleaded. If the fire engineers require further particulars then they can, of course, request them.
2. The fire engineers submit that there is no case in which vulnerability had been proven as the determining factor sufficient to establish a duty of care was owed by an engineer to an owners corporation for pure economic loss.[18] However, they do not refer to any authority to the contrary. As I indicated earlier in these Reasons, the hearing of a joinder application is generally not the time to determine contested questions of law.
3. The fire engineers' submission that the duty allegedly owed by them to the OC is inconsistent with any duty that could be owed to the developer, is also a question of law to be determined following the final hearing. In this regard I note the comments of French CJ in Brookfield Multiplex at [] where he said at [39]:

... There is no reason to regard the existence, or non-existence, of an anterior duty of care to a prior owner as more than an important factor relevant to the existence of a duty of care in respect of pure economic loss to a subsequent purchaser.

1. Similarly, their submission as to the meaning and effect of clause 8(c) of the ACEA Guidelines Terms and Conditions which they say was incorporated into the proposal, which they contend discharges the fire engineers from liability to the developer from 2015, is a matter to be determined following the final hearing.

Is it arguable that the OC suffered economic loss?

1. The fire engineers submit that the OC cannot have suffered any pure economic loss because they did not acquire the common property for value, and again rely on the reasoning in Brookfield Multiplex. I note that the OC's claim for the cost of rectification of the alleged defective wall cladding appears to fall squarely within s24AF(1) which provides that Part IVAA applies to a claim for economic loss or damage to property. As is apparent from a careful consideration of Brookfield Multiplex the High Court in determining the builder (not the architect or another building professional) did not owe a duty of care to the subsequent owners, including the owners corporation, had regard to the specific terms of the building contract and the sales contracts. That the development in Brookfield Multiplex was mixed used restaurant, retail, serviced and private apartments may also be relevant in considering its broader application.
2. In this respect I note the comments of French CJ in Brookfield Multiplex at [23]:

... the point should be made that there are special features of the present case, generated by the contractual and statutory matrix in which the duty of care is asserted, that give it an element of novelty not overcome by a straightforward application of precedent.

Allegations that Weir, personally, is a concurrent wrongdoer

1. At paragraph 43 the building surveyor alleges that in the alternative [to the services being provided by Weir and Razzi] the FSE Services were provided by Weir on behalf of RWA P/L to the Developer.
2. At paragraph 44 it pleads, in the alternative, that Weir owed the duty of care to the developer, and at paragraph 45 to the owners.
3. However, nowhere does the building surveyor set out the basis upon which Weir personally owed the owners a duty of care for work carried out on behalf of the company. Further, I was not referred to any authorities supporting this allegation, and note there have been a number of decisions of this Tribunal determining that a director, when carrying out work on behalf of a contracting company, does not independently owe a duty of care.[19]
4. As Senior Member Lothian said in Luo & Anor v Reynson Concepts Pty Ltd[20]
   1. There is little doubt that Mr Ferguson and Mr Armstrong provide the hands and minds that did the work for Reynson, and it is possible that either or both could have a duty to the Applicants separate from that of Reynson, but this has not been pleaded. As Senior Member Walker said in Korfiatis v Tremaine Developments Pty Ltd [2008] VCAT 403 at [46]:

What [the director] is said to have done would suggest nothing more than his acting as an employee and director of [the company]. It is not suggested that he had any independent arrangement or agreement with any of the Applicants or undertook any personal responsibility directly to them. His actions did not extend beyond the contractual obligations that [the company] assumed by entering into the building contract. This is not sufficient to show an assumption by [the director] of any duty of care to the Applicants or to any of them.

1. In accordance with Korfiatis and for the reasons I gave in Rosenthal Munckton & Shields Pty Ltd v McGregor [2005] VCAT 1702 I am satisfied that the Applicants have not pleaded a duty of care and a breach of that duty sufficient to enable them to recover against either Mr Ferguson or Mr Armstrong.
2. Accordingly, I am not persuaded that the allegations in paragraphs 34 to 46 of the building surveyor's proposed POD are arguable, and when filing the Points of Defence these paragraphs must not be included.

1. The building surveyor also makes a claim for contribution against the architect and the fire engineers, in the event the apportionment defence is not successful. This claim is made under s23B of the Wrongs Act. The building surveyor has filed proposed Points of Claim ('proposed POC') in support of this application.
2. In my view, in circumstances where the building surveyor could simply commence separate proceedings against each of these respondents, unless the claims are so obviously hopeless and lacking in substance, there is no reason to refuse leave to file and serve the contribution claim, and leave should be granted to join them for the purposes of the s23B claims.
3. Neither the builder nor the architect made any submissions about the s23B claim.
4. Section 23B relevantly provides:
   • (1) Subject to the following provisions of this section, a person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with the first-mentioned person or otherwise).
     • (2) A person shall be entitled to recover contribution by virtue of subsection (1) notwithstanding that that person has ceased to be liable in respect of the damage in question since the time when the damage occurred provided that that person was so liable immediately before that person made or was ordered or agreed to make the payment in respect of which the contribution is sought.
     • (3) A person shall be liable to make contribution by virtue of subsection (1) notwithstanding that that person has ceased to be liable in respect of the damage in question since the time when the damage occurred unless that person ceased to be liable by virtue of the expiry of a period of limitation or prescription which extinguished the right on which the claim against that person in respect of the damage was based.

1. Having considered the allegations against the builder at paragraphs 9-13, and against the architect at paragraphs 14-18 of the proposed POC I am satisfied they disclose an open and arguable case that the builder and the architect are liable to pay the building surveyor contribution in the event the Part IVAA apportionment defence is unsuccessful;

Are the allegations of misleading and deceptive conduct against Weir open and arguable?

1. A number of allegations are made against the fire engineers and Weir, personally, on behalf of RWA Pty Ltd. These commence at paragraph 23 of the proposed POC, and refer to four alleged representations. In paragraph 31 the building surveyor alleges that each of the representations were made by the fire engineers, or in the alternative by Weir on behalf of RWA Pty Ltd.
2. After setting out details of the alleged misleading and deceptive conduct, the building surveyor pleads at paragraph 40 under the heading 'ACL Damages' that The Fire Engineers, or in the alternative Weir, are liable to pay damages to Lorenzini (the building surveyor) under section 236 of the Australian Consumer Law. However, there are no pleadings setting out how Weir is liable for the alleged misleading and deceptive conduct. It is not enough to simply make the allegations; they need to be supported.
3. I am therefore not persuaded that the allegations against Weir are open and arguable and accordingly, when filing the s23B Points of Claim, all references to or in the alternative Weir must be removed from all allegations concerning the alleged misleading and deceptive conduct by the fire engineers.

The fire engineers' contention that the misleading and deceptive conduct is statute barred

1. The fire engineers contend that that any liability for misleading and deceptive conduct must have arisen when the second stage building permit was issued in in June 2012 so the claim for contribution is more than a year after the limitations period expired. However, in my view, this is a defence, and irrespective of what has been decided in other cases, noting I was referred to a number of authorities, these do not determine when the cause of action for misleading and deceptive conduct arose in the circumstances of this proceeding. That cannot be determined until the evidence has been heard and considered following the final hearing.
2. In this regard, I note the comments of Ginnane J in Baker v Culvenor[21], which although concerned with an appeal from a decision from the Tribunal on a summary dismissal application under s75 of the VCAT Act is, in my view, equally relevant when considering a joinder application:
   1. ...The approach to be adopted on a summary dismissal application was stated in the High Court decision in Wardley Australia Ltd v Western Australia,[22] which concerned a claim for damages under the Trade Practices Act 1974, in the following terms:

We should, however, state in the plainest of terms that we regard it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases. Generally speaking, in such proceedings, insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident answer to the question.[23]

1. This statement of principle can be applied to summary judgment applications made under s 75 of the VCAT Act, whether the limitation provision relied on is contained in the Limitation of Actions Act or the Fair Trading Act.

1. ...Rather a limitation period provides a defence and must be pleaded, or in the Tribunal expressly relied on, before it can defeat a claim. It does not prohibit a person from issuing civil proceedings.[24]

1. Accordingly, I will allow the building surveyor's application and join the fire engineers as the eighth and ninth respondents.

[1] [2006] VCAT 1604

[2] Perry v Binios trading as Building Inspirations of Australia [2006] VCAT 1922 at [11]

[3] [2018] VCAT 1756

[4] [2014] VCAT 1127

[5] [2008] VSC 99

[6] [2015] VCAT 1658

[7] [2009] VSC 126 at [20].

[8] [2009] VSC 82 at [35].

[9] [2018] VCAT 1335

[10] [2013] VCAT 468 at [31-34]

[11] [2015] VCAT 1658 T [72].

[12] [2014] HCA 36; (2014) 254 CLR 185

[13] [2018] VCAT 987

[14] [2014] HCA 36; (2014) 254 CLR 185

[15] [2015] NSWSC 1916

[16] [2015] NSWSC 1885

[17] [2018] NSWSC 266

[18] Fire engineers' written submissions at [62]

[19] G Rocca Pty Ltd v Timetrex Pty Ltd (Building and Property) [2017] VCAT 261

[20] [2009] VCAT 139

[21] [2019] VSC 224

[22] [1992] HCA 55; (1992) 175 CLR 514.

[23] Ibid 533 (Mason CJ, Dawson, Gaudron and McHugh JJ).

[24] Pullen v Gutteridge Haskins & Davey Pty Ltd [1993] VicRp 4; [1993] 1 VR 27 at 75; Peter Handford, Limitation of Actions Laws of Australia (Thomson Reuter, 4th ed, 2017) 377-8 ('Hanford').