Joining the Joiner – McClafferty v Greg Smith Pty Ltd (Building and Property) [2019] VCAT 299

The Applicants (the owners) commenced proceedings against the First Respondent (the builder) seeking damages in the order of $321,015.00 for, amongst other things, alleged defects associated with windows installed by the builder.  In turn, the builder sought to join the supplier of the windows, Mr Glen Hatfield t/a Redfern Joinery (the joiner) as a party to the proceeding on two bases:

• in the event that the builder was found liable to the owners, the joiner was liable to the builder for breach of implied terms of its subcontract for the supply of windows and doors (the third-party claim); and
• the joiner was a concurrent wrongdoer such that the liability of the builder (if any) to the owners should be limited having regard to the comparative responsibility of the joiner pursuant to the Wrongs Act 1958 (the apportionment defence).

The Senior Member allowed the joiner to be added as a party pursuant to the third-party claim but refused the apportionment defence advanced by the builder.

Submissions on the apportionment defence

The builder submitted that the causal connection between the damages claim of the owners and the actions and omissions of the joiner made the joiner a concurrent wrongdoer within the meaning of the Wrongs Act 1958.

The owners and the joiner submitted that the causal connection as advanced by the builder was not enough, and argued that for the joiner to be a concurrent wrongdoer within the meaning of the Act, there must be a legal cause of action in the hands of the owners against the joiner.

The Senior Member usefully analysed two authorities, the decision of the Victorian Court of Appeal in St George Bank Ltd v Quinerts Pty Ltd [2009] VSCA 245 (Quinerts), and the High Court’s decision in Hunt & Hunt v Mitchell Morgan Nominees Pty Ltd (2013) 47 CLR 613 (Hunt).

The builder argued that in Hunt the High Court disapproved of the finding in Quinerts that a concurrent wrongdoer must be liable to the claimant; however, the Senior Member disagreed that Hunt went this far, and held:

“[Quinerts] remains authority for the proposition that, under the Act, for a person to be a concurrent wrongdoer sharing responsibility in respect of a plaintiff’s claim, the person must be liable (by way of cause of action known to law) for the damage that is the subject of the plaintiff’s claim (or in the case of a person who is dead or a company that has been wound up, that person or company would have been liable for the damage if not dead or wound up)”.

Jim Stavris

Liability limited by a scheme approved under Professional Standards Legislation.