The Owners - Units Plan No 4312 v Project Coordination Australia Pty Ltd [2025] ACTSC 110

1. On 21 March 2025, I made orders permitting the joinder of Mr Philip Thomas Blake as the tenth defendant in these proceedings. I also made subsidiary orders permitting the filing and service of an amended originating claim and statement of claim, as well as directions designed to facilitate the determination of various questions of costs. These are my reasons for those orders.

Background

2. These proceedings involve, inter alia, a claim for breaches of the requirements for undertaking building work and the statutory warranties under the Building Act 2004 (ACT), ss 42 and 88, misleading and deceptive conduct contrary to s 18 of the Australian Consumer Law, and claims for breach of contract and negligence. The plaintiff is the owners corporation for the unit titled development the subject of units plan number 4312, located in Franklin. The plaintiff was established as “The Owners – Units Plan No 4312” by the operation of s 8(1) of the Unit Titles (Management) Act 2011 (ACT).

Application in proceeding dated 30 January 2025

3. The application in proceeding dated 30 January 2025 sought that Mr Blake be included as the tenth defendant. The grounds of the application are that: 1. Pursuant to Rule 220 of the Court Procedure Act 2006 [sic] (“CPR”) the claim against, Mr Phillip Thomas Blake, the proposed Tenth Defendant gives rise to the same issues of law and fact as in the proceedings currently before the Court and the proposed Tenth Defendant ought to be a defendant in the proceedings. 2. Pursuant to Rule 242(2)(a), of the CPR the date of commencement in relation to the proceedings against the Tenth Defendant is taken to be the date of this order.

4. A third order was not pressed.

5. Mr Philip Thomas Blake is one of two directors of the sixth defendant, Helkold Pty Ltd. The plaintiff pleads that the sixth defendant provided fire and electrical services and did so in non-compliance with fire life safety certification requirements. It wishes to assert that either the sixth defendant or Mr Blake were responsible for making representations as to compliance with those fire life safety requirements in various certificates issued on 23 February 2017. Alternatively, it wishes to allege that Mr Blake was a person involved in the contravention of the Australian Consumer Law by the sixth defendant when it made those representations. Submissions

6. The plaintiff submitted that it is presently entitled to commence proceedings against Mr Blake, making the same allegations as are proposed to be made if he is joined in the present proceedings. It is submitted that, if it was required to do so, then the separate proceedings would be appropriately managed and heard with the present proceedings. It submitted that, in those circumstances, the appropriate use of judicial and party resources, and the need to avoid contradictory findings, compelled a conclusion that it is more appropriate that he be joined as a defendant in the current proceedings. It submitted that, so far as any limitation defence is concerned, it is only required to establish a tenable or arguable case. Counsel relied upon the approach taken in The Owners – Units Plan No 4321 v Victory Homes Pty Ltd [2024] ACTSC 337 at [34]-[37] and the evidence as to when the defects manifested itself in the affidavit of Emma Stanley dated 28 January 2025 that indicated that there was no record of any defects in the areas covered by the certifications signed by Mr Blake before 11 July 2023.

7. In relation to delay, the plaintiff submitted that there has been no delay that significantly prejudices the fair resolution of the case. It submitted that it was only following the provision of subpoenaed material on 6 November 2024 that the plaintiff obtained the works contract and, at that point, found that Mr Blake was actively involved in the works.

8. Counsel for Mr Blake made submissions directed to: (a) The proposition that there was no current pleading referring to Mr Blake and, hence, that the claim for joinder was premature until such a pleading was filed. (b) The claim would be statute-barred since the relevant certificates were issued in 2017, and the six-year limitation period under s 236(2) of the Australian Consumer Law expired in February 2023. (c) The relevant documents indicate that the sixth defendant, and not Mr Blake, is the appropriate defendant because it was the sixth defendant, and not Mr Blake, that made the representation. (d) The applicant has known since prior to the commencement of the proceedings that the compliance certificates were signed by Mr Blake himself and that the plaintiff was therefore on notice of the plausible involvement well prior to its discovery of the contract between the first defendant and the sixth defendant.

Consideration

9. I do not accept the submission made on behalf of Mr Blake that rr 211 and 220 of the Court Procedures Rules 2006 (ACT) have no application. I accept the submissions insofar as they indicate that, by giving a confined operation to each of the rules, it would be possible to interpret them so that they do not cover a circumstance such as the present where a party is to be joined after the commencement of proceedings and a case involving the same series of transactions or events is only to be subsequently pleaded. However, such a confined operation would not give a reasonable operation to those rules. It is not necessary in the present case to undertake a grammatical analysis of each rule. It is sufficient to say that the rules are broad enough to accommodate the situation where an additional party is to be joined in circumstances where there is an arguable case that he is directly or indirectly liable for the same conduct as is alleged against an existing party.

10. Further, as a matter of substance, I accept the submission of the plaintiff that it would be open to it to commence proceedings directly against Mr Blake and, in those circumstances, there would be a compelling case to have that separate case managed so that it might be heard and determined at the same time as the existing case. It makes sense that a multiplicity of proceedings be avoided.

11. So far as the limitation point is concerned, I accept that if one assumes that damage accrues from the date of the representation, then the claim would be statute-barred. However, I consider that, for reasons similar to that articulated in Victory Homes at [31]-[37], the plaintiff has a reasonable argument as to when its cause of action accrued which cannot be determined at this stage to be hopeless and which, if correct, would indicate that the limitation period provided by s 236(2) has not expired.

12. In relation to delay, I accept that there has been available to the plaintiff since prior to the commencement of proceedings evidence of the involvement of Mr Blake. The relevant certificates were signed by him personally. The link to the sixth defendant was only provided by a reference in the header of each certificate to an Australian Business Number (ABN) which made reference to Phil Blake Electrical being the trading name of the trustee for the Philip Blake Family Trust. I accept that it would have been open, on the basis of the material before it, for the plaintiff to have made a claim against Mr Blake in addition to the sixth defendant when commencing proceedings. However, I do not consider that this is a significant issue that tells against the joinder of Mr Blake in the proceedings. Particularly in circumstances where the sixth defendant has been involved in the proceedings and Mr Blake is a director of the sixth defendant, the joinder of Mr Blake in the proceedings at this stage will not have any disruptive effect for the purposes of the proceedings. While disappointing to Mr Blake personally, so long as any limitation argument that he has which arises from the lateness of the joinder is preserved, no significant relevant prejudice is disclosed as arising from that lateness. The order that I made preserved any limitation argument that was available because, consistent with the prima facie position established by r 242, the date at which the proceedings start in relation to Mr Blake was identified in the order as being the date when the order was made.

13. It is for those reasons that I made the order for joinder that I did and the consequential orders.

14. The orders that I made on 21 March 2025 were as follows: (1) Mr Philip Thomas Blake is included as the tenth defendant on the date of this order. (2) The plaintiff is granted leave to file an amended originating claim and amended statement of claim within 14 days from the date of this order. (3) The plaintiff and the fourth defendant are to file and serve written submissions limited to not more than 3 pages on the costs of the fourth defendant’s strike out application by 11 April 2025 annexing any relevant evidence. (4) The proceedings are listed before Mossop J on 9 May 2025 at 9:15am for directions and any argument in relation to costs of the application in proceeding filed 30 January 2025. (5) Parties have liberty to provide written submissions limited to not more than three pages in relation to the costs of the application in proceeding filed 30 January 2025 by email to the associate to Justice Mossop by 4pm on 8 May 2025. (6) Each party has liberty to apply on two days’ notice which may be exercised by email to the associate to Justice Mossop.

I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 1 April 2025