Albion Projects Pty Ltd v Simpson

CITATION:

Albion Projects Pty Ltd v Simpson & Anor [2013] QCAT 617

PARTIES:	Albion Projects Pty Ltd (Applicant)
v
Jonathon Simpson & Kim Simpson (Respondents)

APPLICATION NUMBER:

BDL104 -13

MATTER TYPE:

Building matters

HEARING DATE:

On the Papers

HEARD AT:

Brisbane

DECISION OF:

Member Gardiner

DELIVERED ON:

12 November 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application for miscellaneous matters being a joinder application filed on 4 October 2013 in these proceedings is dismissed.

CATCHWORDS:

BUILDING - Joinder of Parties – parties whose interests may be effected by the proceedings - there must be some utility or purpose in the joinder to exercise the discretion - discretion to join not exercised

Queensland Civil and Administrative Tribunal Act 2009 s 42

Coral Homes Qld Pty Ltd v QBSA (No 2) [2012] QCAT 242 followed

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

Jonathon and Kim Simpson have applied to join Slate and Stone Products Pty Ltd to these proceedings.
The Simpson entered into a contract with Albion Projects Pty Ltd for the construction of their home at Hamilton. Albion Projects commenced proceedings against the Simpsons for monies it says are outstanding under the contract. Part of that contract involved the installation, cleaning, sealing and protecting of magnus basalt tiles commonly called bluestone tiles.
Jonathon and Kim Simpson replied and counterclaimed, in part because of white marks and discolouration that began to appear on the bluestone tiles. Jonathon and Kim Simpson say that Albion Projects failed in their installation, cleaning, sealing and protecting of these tiles. Albion Projects denies this allegation.
Jonathon and Kim Simpson have now applied to join Slate and Stone Products Pty Ltd as the third party supplier of the bluestone tiles. The Simpsons say this allows them to seek redress if this Tribunal relieves Albion Projects of liability by reason of any physical or chemical characteristics of the tiles.
Parties are joined under section 42 of the QCAT Act. That section allows a party to be joined if the Tribunal considers the person should be bound by or have the benefit of a decision of the Tribunal or the person’s interests may be affected or for any other reason it is desirable that the person be joined.
Slate and Stone Products admits that the discretionary power of QCAT to order a joinder has been enlivened by the application but seeks this Tribunal not to exercise that discretion contained in section 42.[1]
[1]Comfortable Homes Pty Ltd v QBSA [2001] QBT 61 applied in Coral Homes Qld Pty Ltd v QBSA [2012] QCAT 715 at [30].
Slate and Stone Products opposes this joinder application saying that the tiles were supplied to Albion Projects and consequently Slate and Stone Products has no contact with the Simpsons and further, they were only on-supplying the tiles and the original supplier was S & N Bros Pty Ltd whom they would seek to join if they became a party to these proceedings.
Of course Jonathon and Kim Simpson must first prove a defect. Then the issue of whether it was the installation of the tiles or some defect inherent in the tiles themselves is a matter of fact for the hearing. Arguably if there is a defect in the tiles it will be found in one of these two broad areas.
If damage is proven, the Simpson’s argue it is desirable that all parties that potentially carry liable for that damage can be bound by the decision so that further costly actions become unnecessary.
I am not satisfied that Slate and Stone Products should be joined on this basis. The argument remains primarily between the builder and the home owner. It is drawing a long bow to say the supplier should be there just in case the primary argument is not successful. It may also be, as Slate and Stone Products submits, that the proper remedy may lie with the importer, not the supplier.
I agree with and adopt the comments of the learned Senior Member in Coral Homes Qld Pty Ltd v QBSA (No 2)[2] that there must be some utility or purpose in the joinder to exercise the discretion.[3] I am not persuaded these circumstances exist in this matter.
[2] Coral Homes Qld Pty Ltd v QBSA (No 2) [2012] QCAT 242 beginning at [5].
[3] Ibid at [11].
The joinder application is dismissed.

Albion Projects Pty Ltd commenced proceedings against Jonathon and Kim Simpson for monies it says are outstanding under a contract for the construction of the Simpsons' home. The Simpsons counterclaimed, alleging that Albion Projects failed in its installation, cleaning, sealing and protecting of the bluestone tiles. The Simpsons subsequently sought to join Slate and Stone Products Pty Ltd, the supplier of the bluestone tiles, to the proceedings. Slate and Stone Products opposed the joinder. The dispute before the Tribunal was whether the joinder of Slate and Stone Products was desirable or necessary under section 42 of the Queensland Civil and Administrative Tribunal Act 2009.
The Tribunal considered the arguments of the parties and the applicable legal principles. The Tribunal noted that the Simpsons had to prove a defect before considering whether the issue was with the installation or the tiles themselves. However, the Tribunal found that there was no utility or purpose in joining Slate and Stone Products in this matter. The Tribunal was not persuaded that the supplier should be joined just in case the primary argument was not successful and agreed with the comments of the learned Senior Member in Coral Homes Qld Pty Ltd v QBSA (No 2) that there must be some utility or purpose in the joinder to exercise the discretion. The Tribunal dismissed the joinder application.
The Tribunal dismissed the joinder application filed by Jonathon and Kim Simpson on 4 October 2013 in these proceedings. The Tribunal found that there was no utility or purpose in joining Slate and Stone Products Pty Ltd in this matter and that the argument remained primarily between the builder and the homeowner. The Tribunal adopted the comments of the learned Senior Member in Coral Homes Qld Pty Ltd v QBSA (No 2) that there must be some utility or purpose in the joinder to exercise the discretion.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established