Queensland Civil and Administrative Tribunal|2010-09-15

The applicant contends that as the Maynes have an interest in the outcome of this proceeding, which obviously they do, they ought be joined as a party[6].

The applicant contends that Eco Housing Building Systems ("Eco Housing") is also a relevant party as the supplier of the kit home, which he constructed. The direction to rectify, it is contended, calls into question the structural integrity of the building by virtue of design, plans and specifications of the kit home supplied by Eco Housing. Essentially what the applicant is saying is that if the building work is defective it is the fault of Eco Housing and not him.

This application is to consider, by way of a fresh hearing, whether the direction to rectify should be set aside or upheld or some other order made as between the applicant and the Authority[7]. To include Eco Housing in this proceeding would force it into litigation for which it would receive no benefit. In this respect I agree with the submissions of the Authority[8].

When regard is had to the criteria for joinder that is set out in section 42 of the QCAT Act, it is difficult to see how Eco Housing could benefit from any order made by the Tribunal, nor would any of its interests be affected by the proceeding. Even if it was accepted by the Tribunal that there were design faults attributed to the Eco Housing design, no order adverse to the interests of Eco Housing could be made in this proceeding.

In Comfortable Homes Pty Ltd v QBSA[9] the applicant sought to join the engineers who prepared a foundation design report for a residential dwelling. In the review application by the builder, it sought to join the engineers alleging design faults. The Tribunal, in dismissing the application, expressed similar considerations to those above about the utility of any order that might concern the engineers. After consideration of the power to join the Tribunal Member said:

"It follows that, given the limited orders which the Tribunal may make in the review proceedings, it is difficult to conceive of any such order, which might be made in the present case, which might benefit WBA or by which WBA could be bound. Suppose, for example, that the Tribunal should confirm the Authority's decision. How, it may be asked rhetorically, might that, of itself, be of benefit to WBA? And how, even if the reasoning process leading to the decision involved an analysis of the design and a conclusion that it was defective and a cause of the damage to the house, could the order bind WBA, if it were a party to the proceeding? Such examples might be multiplied to reflect the various permutations and combinations of outcome of the principal application, and the factual analyses and reasoning processes which might lead to them"[10].

Further, joinder of Eco Housing would result in unnecessary delays and costs to both parties without utility. It may also add to the complexity of the issues given the position of the applicant that the defects go to design rather than actual construction. If the applicant does propose to contest the direction to rectify on the basis submitted, then the Authority is at liberty to lead evidence from representatives of Eco Housing to contest this position if it chooses to do so.[11]

With respect to the joinder of the Maynes, again I consider this unnecessary. There is separate litigation in this Tribunal between these parties and in my view, although the issues for determination in this application are not the same or similar to those in BD491-09, the same result could be achieved if both proceedings could be heard together.[12]

Therefore the application for joinder will be refused.

[8] Authority's written submissions para 17 ff.

[11] Also a consideration in Comfortable Homes Pty Ltd v QBSA

Smith v Queensland Building Services Authority [2010] QCAT 448 (15 September 2010)

There is support for this view in both the relevant explanatory notes to the introduction of the relevant legislative provision, and in the cases referred to by the Authority, which have considered these provisions in a similar context. (See Explanatory notes to s.104 of the Queensland Building Tribunal Act, the statutory precursor to s.86 of the QBSA; Manwin v. QBSA [2007] QDC 298; Mitchell v. QBSA [2001] QBT 39; Ken Harrison Homes Pty Ltd v. QBSA [2007] QCCTB 61)

Smith v Queensland Building Services Authority [2010] QCAT 448

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Smith v Queensland Building Services Authority [2010] QCAT 448 (15 September 2010)