VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
CIVIL DIVISION
BUILDING AND PROPERTY LIST	
vcat reference No. BP1087/2019	
CATCHWORDS	
Domestic building – application for joinder where applicants’ claim relies on warranties in s8 Domestic Building Contracts Act 1995 other than the warranty to take reasonable care in s8(d) – applicants’ claim not apportionable – joinder refused	
APPLICANTS	Owners Corporation 1 Plan No. PS 640567Y, MMD Mazor construction Pty ltd (ACN. 137 919 147), Michael Price, Jun Zhu, Bowen Zhang, Christopher Burrows, Mlk Ventures Pty Ltd (A.C.N. 609 216 186), Yun Fong Wong, Chris Thirimanne, Anne Thirimanne, Ian David Kerr, Georgia Petropoulos, Xiaoqing Guo, Wing Mui Diu, Craig Holmes, Joanne Holmes, Daniel Bailey, Arthur Christodoulakidis, Melissa Christodoulakidis, David Dawson, Ryoko Dawson, Elvira Antonopolous, Micton Pty Ltd (A.C.N. 114 115 865), Kuang Lee, Mengji Xu, Lik Hui Teo, Yin Chong, Scott Douglas Morison Freeman, Huilin Zhang, Housing First Ltd (A.C.N. 116 093 004) (Formerly known as Port Phillip Housing Association Ltd), Chathurika Siriwardena, Blockkar Bread Pty Ltd (A.C.N. 060 395 191), Sanjay Roy, Paul De Bono, Dayang Zhang, Grace Gwee, Varghese Kuttikadan, Ling Wu, Ashwini Bhargava (withdrawn from proceeding 20/02/2020), Penelope Anne Byron, Thomas Pappas, Christine Robbins, Gary Lee Wheeler, Emma Jane Wheeler, Leon Kayayan, Clayton Super Investments Pty Ltd (A.C.N. 164 080 513), Spirous Kostoglou, Hue Mun Au Yong, N & A Wilkinson 2 Pty Ltd (A.C.N. 168 296 651), John Grey, Josephine Grey, Steven Raymond Pattison, Christopher Goldfinch, Yansong Shen, Lengil Pty Ltd (A.C.N. 168 604 233), Robert Semmel, Regina Schmidt, Kong Chiang Lee, Emilio Fiumara, William Chan, Kershan Dias, Andrew James Faulks, Abbey Dawn Pty Ltd (A.C.N. 156 636 654)	
		
RESPONDENT	Shangri-La Construction Pty Ltd (ACN: 130 534 244)	
JOINED PARTIES	Da Qing Lee and Soek Gaik Ng, Firdosh Behilhomki, Priscilla Dewi Siswara, Yung Tan, Nandana Mudiyanselage, Yan Chen and Ted-Looi Chong, Quoc Dal Nguyen and Thoa Thi Kim Chong, Dianlong Tran, Danxing Wu, Kuk Sum Kelvin Mo, Kuang King and Hew Nam Tan, Yiwen Jin, Jun Li, Zhu Chen, Lin Chen and Xiyan Huang, Julian Semmell, Wai Ching Tsang, Mr Manal Masood	
WHERE HELD	Melbourne	
BEFORE	Deputy President C Aird	
HEARING TYPE	Directions hearing	
DATE OF HEARING	3 September 2020	
DATE OF ORDER	27 October 2020	
CITATION	Owners Corporation 1 Plan No. PS 640567Y v Shangri-La Construction Pty Ltd (Building and Property) [2020] VCAT 1157	
OrderS

1.	The application by the respondent for joinder of Nicholson Wright Pty Ltd and Jim Tsaganas as respondents to the proceeding is refused.

2.	Costs reserved. If any application for costs is received I direct the principal registrar to refer it to Deputy President Aird so that orders may be made for it to be determined ‘on the papers’.

DEPUTY PRESIDENT C AIRD			

APPEARANCES:		
For Applicants	Mr N Phillpott of Counsel	
For Respondent	Mr S Donley, solicitor	
For proposed Second and Third Respondents	Mr A Thangarajah, solicitor	
For Joined Parties	No appearance	

Reasons
1	These proceedings were commenced by the applicant owners Corporation and 62 individual lot owners (‘the Owners’) in June 2019 seeking damages of at least $5 million from the respondent Builder for the cost of rectification works. The Owners’ claim follows the issuing by the Municipal Building Surveyor (‘the MBS’) of four Emergency Orders and a Building Notice as a result of the installation of combustible Expanded Polystyrene (‘EPS’) cladding on the external walls. 
2	The Builder filed an application for directions hearing or orders dated 11 August 2020 seeking orders for the joinder of Nicholson Wright Pty Ltd and Jim Tsaganas (collectively, the Building Surveyors) as respondents for the purposes of a proportionate liability defence under Part IVAA of the Wrongs Act 1958. The application is neither consented to nor opposed by the Building Surveyors. The application for joinder is opposed by the Owners.
3	Mr Donley, solicitor, appeared for the Builder and spoke to the submissions dated 11 August 2020 filed in support of the application and the further submissions dated 31 August 2020. Mr Phillpott of Counsel appeared for the Owners and spoke to the submissions dated 25 August 2020. Mr Thangarajah, solicitor, appeared on behalf of the proposed second and third respondents.
4	For the Reasons which follow, the application for joinder is refused.
the joinder application	
5	This is an unusual joinder application. The Owners contend their claim is not an apportionable claim and that accordingly the joinder application should be refused. The Builder contends that if it is found liable to the Owners, then their claim arises from a failure to take reasonable care and is therefore apportionable. The Builder relies on a number of authorities, which I will refer to below, in submitting that the way in which an applicant pleads its claim is not relevant. Rather, it cannot be determined whether a claim arises from a failure to take reasonable care, and is therefore an apportionable claim, until all of the evidence has been heard.
6	Whilst I accept that under s60 of the Victorian Civil and Administrative Tribunal Act 1998 the Tribunal has a broad discretion to order joinder of parties, as I recently said in McCann v Shangri-La Construction Pty Ltd(‘McCann’):
7.	It is a serious matter to join a party to a proceeding, and is a discretion that should not be exercised lightly because of the possible cost implications for the party joined, and the other parties to the proceeding. 
This is particularly relevant in the Tribunal where, unlike in the courts, costs do not follow the event. Section 109 of the VCAT Act provides that each party bears their own costs unless the Tribunal is minded to exercise its discretion to make an order for costs, being satisfied in all the circumstances it is fair to do so.
Proportionate liability legislation
7	The proportionate liability provisions are found in Part IVAA of the Wrongs Act 1958. The following sections are relevant:
Section 24AF(1)
This Part [Part IVAA] applies to—
(a) 	a claim for economic loss or damage to property in an action for damages (whether in tort, in contract, under statute or otherwise) arising from a failure to take reasonable care; and
(b)	a claim for damages for a contravention of section 18 of the Australian Consumer Law (Victoria). [this section does not apply here]
Section 24AH
(1) 	A concurrent wrongdoer, in relation to a claim, is a person who is one of 2 or more persons whose acts or omissions caused, independently of each other or jointly, the loss or damage that is the subject of the claim. 
(2) 	For the purposes of this Part it does not matter that a concurrent wrongdoer is insolvent, is being wound up, has ceased to exist or has died. 
and section 24AI:
(1) 	In any proceeding involving an apportionable claim— 
(a) 	the liability of a defendant who is a concurrent wrongdoer in relation to that claim is limited to an amount reflecting that proportion of the loss or damage claimed that the court considers just having regard to the extent of the defendant's responsibility for the loss or damage; and 
(b) 	judgment must not be given against the defendant for more than that amount in relation to that claim. 
The Owners’ Position
8	There is no dispute that the Owners’ claim is a claim for economic loss or damage to property. However, the Owners dispute that their claim arises from a failure to take reasonable care and contend that their claims are therefore not apportionable.
9	They rely on two decisions of this Tribunal: Owners Corporation No 1 of BS613436T v LU Simon Builders Pty Ltd (which concerned the fire at the Lacrosse apartment building which I will refer to as Lacrosse) and McCann.
10	The allegations in paragraph 11 of the Owners’ Amended Points of Claim dated 14 November 2019 rely solely on the Builder’s alleged breach of certain of the warranties contained in s8 of the Domestic Building Contracts Act 1995 (‘the DBCA’) that are implied into every major domestic building contract (‘the s8 warranties). The Owners contend these warranties are absolute and not subject to any qualification to take reasonable care. They relevantly allege:
…
the Builder warranted that
(d)  	all materials to be supplied by the builder for use in the work will be good and suitable for the purpose for which they are used and that, unless otherwise stated in the contract, those materials will be new [s8(b)];
(e)	the builder warrants that the work would be carried out in accordance with, and would comply with, all laws and legal requirements including, without limiting the generality of this warranty, the Building Act 1993 and the regulations made under that Act; [s8(c)]
(f) 	the works would be suitable for occupation at the time the work is completed; [s8(e)]
(g) 	the works and any material used in the carrying out of the works would be reasonably fit for that purpose or would be of such a nature and quality that they might reasonably be expected to achieve the result stated in the Contract. [s8(f)]
11	The Owners have not relied on the warranty to take reasonable care set out in s8(d) which provides:
the builder warrants that the work will be carried out with reasonable care and skill and will be completed by the date (or within the period) specified by the contract;
The Builder’s Position
12	The Builder’s application to join alleged concurrent wrongdoers for the purposes of a proportionate liability defence is predicated on its re-formulation of the Owners’ claim against it.
13	The Builder contends in its submissions at [2] that if it is found liable to the Owners (which is denied) then:
i.	the Owners claim against it is an apportionable claim because it is a claim for economic loss or damage to property in an action for damages which arises from a failure to take reasonable care, within the meaning of s24AF of the Wrongs Act;
ii.	the Builder and the Building Surveyors are concurrently liable to the Owners in respect of the apportionable claim because the Building Owners are liable to the Owners in negligence; and
iii.	liability should be apportioned between it and the Building Surveyors.
14	Whilst denying liability, the Builder contends that any liability it has arises from its failure to take reasonable care. It pleads at paragraph 39 of the proposed amended points of defence:
In the event the Tribunal determines Shangri-La is liable to the applicants (which is denied) then the applicants’ claim against Shangri-La is:
(a)	for economic loss or damage to property in an action for damages within the meaning of section 24AF of the Wrongs Act 1958 (Vic) (Wrongs Act);
(b)	arises from a failure to take reasonable care within the meaning of section 24AF of the Wrongs Act;
Particulars
(i)	If Shangri-La breached the Contract as alleged in the applicants’ amended points of claim dated 14 November 2019 (which is denied) then the breaches were caused by acts or omissions of Shangri-La which fell short of the standard of care expected of a reasonable builder in the same circumstances.
(ii)	Further and in the alternative, in the absence of any allegations or evidence that Shangri-La’s breaches of Contract (which are denied) were caused by deliberate acts, the breaches arose from a failure to take reasonable care.
(iii)	Further and in the alternative, if Shangri-La is liable to the applicants for the claim pleaded in the applicants’ amended points of claim dated 14 November 2019 (which is denied) then Shangri-La would also be liable to the applicants:
(A)	in negligence; and/or
(B)	for a breach of a warranty implied into the Contract by section 8 of the DBCA that Shangri-La would carry out the work with reasonable care and skill.
(iv)	Further particulars will be provided after discovery of documents, the exchange of expert evidence and the exchange of lay witness statements.
15	The allegations against the Building Surveyors in the proposed amended points of defence are not relevant for present purposes other than to note it is alleged that they owed a duty of care to the Owners in tort to exercise reasonable care and skill in the performance of their services, which duty it is alleged they breached.
consideration of authorities relied upon by the builder
16	The Builder relies on a number of authorities which it contends support the proposition that irrespective of the pleaded case of an applicant, a court or tribunal cannot determine whether a claim arises from a failure to take reasonable care until after it has heard the evidence. In effect, it seems to be saying that the pleaded claim is irrelevant. If that was correct, it would, in my view, create an absurd situation which would effectively render pleadings irrelevant and the onus of proof borne by an applicant becoming somewhat blurred by an onus not only to prove their claim on a balance of probabilities but also to prove that their claim did not arise from a failure to take reasonable care. It cannot have been the intention of the legislature that an applicant lose control over the claim it seeks to bring and the cause of action it seeks to rely upon.
17	Having considered the authorities relied on by the Builder, I am not persuaded that any of them stand for the proposition that an applicant’s pleaded claim and the cause of action they rely upon are to be totally disregarded. Rather, they indicate that whilst the pleading might be informative it is not determinative. A pleading that a claim is an apportionable claim and that a respondent is a concurrent wrongdoer does not mean that those findings will necessarily be made. It is not until the hearing of the evidence that a court or tribunal can finally determine those questions. 
18	However, an applicant cannot avoid the operation of Part IVAA by the manner in which it pleads its case. If the allegations in a pleading arise from a failure to take reasonable care, whether or not such failure is expressly pleaded, and a court or tribunal determines that an applicant’s loss arose from the respondent’s failure to take reasonable care, then, and only then, will the applicant’s claim be apportionable.
19	I will consider each of the authorities.
20	The Builder relies upon the comments by Barrett J in Reinhold v NSW Lotteries Corporation (No 2) cited with approval by Ashley JA in Godfrey Spowers:
I respectfully agree that a claim may be property regarded as ‘one arising from a failure to take reasonable care’; if, ‘at the end of the trial’, the evidence warrants a finding to that effect and regardless of the absence of ‘any plea of negligence’ or a failure to take reasonable care’. The nature of the claim for the purposes of Part 4 is to be judged in the light of the findings made and is not determined by the words in which it is framed.
21	However, it is important to read Barrett J’s comments in Reinhold in the context of his Honour’s earlier decision in Reinhold v New South Wales Lotteries Corporation (‘Reinhold No 1). In Reinhold (No 1) it is recorded that Mr Reinhold’s claims were not only for breaches of contract; they included claims founded in tort:
86 	Mr Reinhold also advances claims in tort. In relation to Lotteries, Mr Reinhold pleads a duty to take reasonable care in and about cancelling Tickets and Entries and providing information for the purpose of enabling Tickets and Entries to be cancelled.
87 	Mr Reinhold pleads a duty of care in negligence on the part of the Newsagents by which the Newsagents were required to take reasonable care in and about issuing Ticket B to Mr Reinhold and recording the Entry and cancelling any ticket issued; also to take reasonable care not to cancel Ticket B or the related Entry where the Newsagents had not been requested by Mr Reinhold to do so
22	Ashley JA’s reliance on Reinhold in Godfrey Spowers must be read in conjunction with his Honour’s comments at [102-105]:	
102.	First, if pleadings rather than judgement could ever render a matter an ‘apportionable claim’, and a defendant a ‘concurrent wrongdoer’, they did not do so in this instance. Spowers, by its defence denied the plaintiff’s claims. It pleaded, but only as an alternative, if its principal answer to the plaintiff’s claim failed, that the claim was an apportionable claim. It pleaded, in language which was not free of qualification, that it would be a concurrent wrongdoer in that eventuality. … 
103.	In all, no more can be said than that Spowers raised a defence, secondary to the principal denial of liability to the plaintiffs, that their claim was an apportionable claim and that it was a concurrent wrongdoer, upon each of which allegations the plaintiffs joined issue; and that it pleaded, inter alia, in the original third party statement of claim, against the background of its denial of the plaintiff’s claim, that such claim was an apportionable claim and that the respondents were concurrent wrongdoers – the first of which allegations was admitted by one respondent and not by the other, and the second of which each of them denied.
104.	The second reason why I do not agree with the proposition that the liability of Spowers was, as it were, immediately confined by operation of the pleadings to proportionate liability under Part IVAA is that and a re. I consider, contrary to the submission of counsel for the engineer, that it is not simply the quantum of the limitation on liability which depends upon judgment. 
105.	The definition of ‘apportionable claim’ by s24AE, and the description in s24AF of circumstances in which Part IVAA applied do not mean that, once something that looks like an apportionable claim is pleaded, a defendant forthwith becomes a ‘concurrent wrongdoer’. Section 24AH(1) emphasises that whether a wrongdoer is of that character depends upon that person having been one of two or more persons whose acts or omissions caused the plaintiff’s loss and damage. At least absent highly unusual pleadings, determination of the critical circumstances will depend on findings having been made. Section 24AI(1) is consistent with such an analysis. It limits the liability of a concurrent wrongdoer to an amount reflecting the proportion of the plaintiff’s loss or damage claimed which the Court considers just in all the circumstances, the Court being obliged to take into account the responsibility of other concurrent wrongdoers who are parties to the proceeding, but ordinarily not others. [underlining added]
23	In the oft quoted passages from Dartberg Pty Ltd v Wealthcare Financial Planning Pty Ltd Middleton J said:
29.	As the respondents observed, in drafting the provisions of Pt IVAA of the Wrongs Act, the legislature deliberately chose to define "apportionable claim" by reference to an action for damages arising from a failure to take reasonable care. The provisions do not require that the claim itself be a claim in negligence or for a breach of duty – it only requires that the claim arise from a failure to take reasonable care. The expressions "arising from" or "arising out of" are of wide import – see the discussion in A Stephenson, "Proportional Liability in Australia – The Death of Certainty in Risk Allocation in Contract" (2005) 22(1) ICLR 64 at 71 to 73, and generally B McDonald, "Proportionate Liability in Australia: the Devil in the Detail" (2005) 26(1) ABR 29. 
30.	In my view, Pt IVAA could apply in the circumstances of this proceeding according to its own terms. Where a claim brought by an applicant does not have as one of its necessary elements any allegation of failing to take reasonable care, an additional enquiry into the failure to take reasonable care may become relevant in the course of a trial to determine the application of Pt IVAA. Even though the claims in this proceeding themselves do not rely upon any plea of negligence or a "failure to take reasonable care" in a strict sense, a failure to take reasonable care may form part of the allegations or the evidence that is tendered in the proceedings. At the end of the trial, after hearing all the evidence, it may be found that Pt IVAA applies. [underlining added]
24	These comments need to be read in conjunction with the respondent’s submissions as set out by his Honour in paragraph 28 of Dartberg:
The question then arises as to whether or not there is a claim for economic loss in an action for damages “arising from a failure to take reasonable care”. The respondents contended that the words “arising from a failure to take reasonable care” should be interpreted broadly. The submission of the respondents was that when one looks at the pleading one can conclude that the claims brought against the respondents arise out of a failure to take reasonable care in the sense that they have a close association with or are incidental to a failure to take reasonable care or they spring out of, or have their origin in, a failure to take reasonable care. [underlining added]
25	In Solak v Bank of Western Australia Pagone said at [35]:
However, the apportionability of claims under the State legislation all depend fundamentally upon whether the claim is one “arising from a failure to take reasonable care”. Bank West’s claim against the third parties is not pleaded as such but the factual pre‑condition to the operation of the relevant statutory regimes does not depend upon how a claim is pleaded but whether the statutory precondition exists, namely whether the claim arises from a failure to take reasonable care. In Dartberg Pty Ltd v Wealthcare Financial Planning Pty Ltd Middleton J said that the words “arising from a failure to take reasonable care” should be interpreted broadly. In my view the State regimes providing for apportionment of liability between concurrent wrongdoers requires a broad interpretation of the condition upon which apportionment provision depends to enable courts to determine how the claim should be apportioned between those found responsible for the damage. The policy in the legislation is to ensure that those in fact who caused the actionable loss are required to bear the portion of the loss referable to their cause. That task ought not to be frustrated by arid disputes about pleadings. Support for that conclusion may be found by the circumstance that a “failure to take reasonable care” can arise as much from an obligation in tort as in contract. In this case Bank West’s claim for indemnity based upon a failure to sight original documents (that is, a breach of contract) may aptly be described as a failure to take reasonable care for the purposes of the apportionment provisions. [underlining added]
26	Therefore, whilst the exact wording of a pleading may be irrelevant, it is important to consider whether the action itself can be regarded, in fact, as a claim …in an action arising from a failure to take reasonable care 
Is a claim for a breach of the s8 warranties an apportionable claim?
27	In Lacrosse Judge Woodward said, in finding the warranties set out in s8(b), (c) and (f) were not apportionable:
282.	The warranties implied into the D&C Contract by s8 of the DBC Act and relied on by the Owners are summarised above.  They are, in substance, warranties as to:
•	suitability of materials (DBC Act s8(b));
•	compliance with the law (including the BCA) (DBC Act s8(c)); and
•	fitness for purpose (DBC Act s8(f))
283.	LU Simon admitted that the warranties in s8 of the DBC Act were incorporated into the contract for the construction of the building.  It also admitted that the warranties run with the building and that the Owners may take proceedings against LU Simon for breach of those warranties, as if they were parties to the D&C Contract.  It denied breaching the warranties [the Owners relied on], but has not advanced any argument in support of that denial.  Further, when asked about the Owners’ submission that the warranties are absolute in nature and not qualified by or limited to an obligation to use reasonable care and skill, senior counsel for LU Simon said: “we don’t have firm submissions to make on that behalf”.  
284.	It is not surprising that LU Simon has not sought to mount a substantive defence to these claims.  In my view, there is none. 
285.	In Barton v Stiff, Hargrave J (as he then was) confirmed the principle that a builder’s liability for design and construction was not merely an obligation to use reasonable care.  In particular, the warranty of fitness for purpose was absolute.  His Honour added that: “the absolute warranty of fitness for purpose relates to the purpose as properly identified”.  That is, the obligation of the builder must be measured by reference to the purpose for which the building was required under the conditions likely to be encountered at the land.
286.	Thus I accept the Owners’ submission that the warranties are “not qualified or limited to an obligation to use reasonable care and skill” and that: 
“[T]herefore, it is irrelevant whether LU Simon reasonably relied (as it asserts) upon the ‘experts in the design team’ (that is, the other respondents) for advice as to the compliance of the Alucobest panels with the BCA; or that it was not made aware of any concerns regarding the use of ACP as an external cladding material; or that ACP had been used to clad other high-rise buildings in Melbourne, such that personnel within LU Simon may have believed that it was suitable for that purpose.”
28	In the context of these very clear statements by his Honour, the submissions by the Builder that the Lacrosse decision contains no absolute rule, or even any general statement, about whether a claim in a different proceeding for breach of the warranties in subsections 8(b), (c) and/or (f) of the DBCA can be an apportionable claim or not is surprising.
29	I also note the following decisions of the Tribunal which I referred to in LU Simon Builders Pty Ltd v Allianz Australia Insurance Ltd & Ors when I found that it was arguable that Part IVAA applied to claims made for a breach of the warranty to take reasonable care in s8(d) of the DBCA: 
21.	Mr Laird referred me to previous decisions of the tribunal in support of his submission that claims brought for a breach of the statutory warranties are not apportionable claims. As the statutory warranties are incorporated into every major domestic building contract, the claims for breach of those warranties are founded in contract. In Serong v Dependable Developments Pty Ltd Macnamara DP (as he then was) said at [349]:
The contractual claim against Dependable does not arise from a claim for misleading and deceptive conduct contrary to Section 9 of the Fair Trading Act nor does it arise from an alleged failure to take reasonable care.  Rather it arises out of allegations that Dependable has failed to meet certain absolute standards arising out of the contract including the due completion of the works within a specified time and the employment of proper workmanship in the construction of those works.  Dependable’s liability under the contract is to perform its terms not to use reasonable care to perform them.  Mr Gurr submits that the effect of Section 24AI is that there should be no apportionment as between the contractual claim against Dependable and the claims for misleading and deceptive conduct.  I agree with this submission.
22.	In Spiteri & Ors v Stonehenge Homes & Associates Pty Ltd Judge Lacava said at [136-138]
136.	Mr Laird submitted that the claims made against Homes in the primary proceedings are brought under the statutory warranties in the case of the Owners and in contract in the case of Wesfarmers.  He correctly, in my view, submits that claims brought under the statutory warranties contained in the Act and the claim in contract are not apportionable claims within the meaning of the Wrongs Act 1958.  
137.	With respect, that submission must be correct.  Part IVAA of the Wrongs Act 1958 requires a court or tribunal when apportioning a claim, to assess from the facts, the degree of responsibility or liability between concurrent wrongdoers.  That can be done in the context of a negligence claim but not in a claim in contract or where the claim is based in breach of warranty.
138.	In my judgment, the claims that Wesfarmers and the owners bring against Homes are not apportionable claims within the meaning of the Wrongs Act 1958.
139.	I note that Homes made no submissions contrary to those advanced by the applicants on this question.
30	As I said in McCann at [27]
In my view the warranties relied upon by the Owners are absolute and not subject to a qualification to use reasonable care and skill as submitted by counsel for the Builder. If Parliament had intended these warranties be subject to such a qualification the warranty in s8(d) would serve no purpose and have no work to do. Each of the warranties are quite specific and only s8(d) contains a specific warranty to take reasonable care. Therefore the Owners’ claim is not an apportionable claim within the meaning of s24AF(1) of the Wrongs Act. Therefore Part IVAA of the Wrongs Act does not apply.
31	Further, it is not, in my view, open to a respondent to rely on a cause of action it says an applicant would have had against it, or its re-formulation of an applicant’s pleading, in alleging that other persons are concurrent wrongdoers. I note the comments of Macfarlan JA in Perpetual Trustee Company Ltd v CTC Group Pty Ltd (No 2) where he said:
22.	For a successful action for damages to have arisen from a failure to take reasonable care, it is in my view necessary that the absence of reasonable care was an element of the, or a, cause of action upon which the plaintiff succeeded. As observed by Professors McDonald and Carter in "The Lottery of Contractual Risk Allocation and Proportionate Liability" (2009) 26Journal of Contract Law 1at 18, the contrary view would produce the absurd result that a party to a contract who failed to perform a strict contractual obligation would benefit from being found to have acted negligently rather than "innocently". If claims could be apportioned where negligence is not an element of the successful cause of action, but merely arises from the facts, a plaintiff could lose his or her contractual right to full damages from a party whose breach of a contractual provision of strict liability happened to stem from a failure to take reasonable care.
23. 	My view accords with that which I reached in relation to the similarly worded, and in my view relevantly indistinguishable, provision in s 5A of the Act which renders Part 1A applicable only to a "claim for damages for harm resulting from negligence (Perpetual Trustee v Milanex at [87]; see also Monaghan Surveyors Pty Ltd v Stratford Glen-Avon Pty Ltd [2012] NSWCA 94 at [76] and [77]). It appears to differ from that expressed by Barrett J (as his Honour then was) in Reinhold v New South Wales Lotteries Corporation (No 2) [2008] NSWSC 187 at [20] - [30] and in other first instance decisions to which his Honour referred. Unless his Honour was simply saying that it is necessary to examine the court's findings to identify the cause, or causes, of action upon which the plaintiff succeeded, I cannot, with respect, agree with his Honour that the "nature of the claim, for the purposes of Pt 4, is to be judged in the light of the findings made and is not determined by the words in which it is framed" (at [30]). In my view the application of Part 4 turns not on the facts that happen to be found but on the essential character of the plaintiff's successful cause of action. Subject to cases that are conducted without regard to the pleadings, if negligence is an essential element of that cause of action, it will have been pleaded in the Statement of Claim. If it is not, it will not have been pleaded. It would be curious indeed if, to attract Part 4 of the Act, the defendant pleaded and proved his or her own negligence when that was not alleged by the plaintiff. The text of s 34(1) does not, in my view, contemplate that occurring. The natural meaning of the words used indicates that a failure to take reasonable care must be part of, and therefore an element of, the plaintiff's successful cause of action. [underlining added]
32	In the same case Barrett JA said:
38	It cannot be suggested (nor do I think it has been suggested in any decided case) that the nature or quality of a "claim" is, for relevant purposes, to be determined solely by looking at the court's decision in relation to it. Nor is the nature or quality of a "claim" to be determined solely by looking at the terms in which it is framed. Rather, it is a combination of the terms in which the claim is framed (or pleaded) and relevant findings of the court in relation to it that must be assessed in order to decide whether it is a claim "in an action for damages . . . arising from a failure to take reasonable care" and has the other attributes of an "apportionable claim" under s 34(1)(a). [underlining added]
conclusion
33	I am not persuaded that any of the authorities relied on by the Builder stand for the proposition that there must be total disregard for the claim as put by an applicant. It is one thing for a respondent to rely on and plead out the cause of action an applicant has against an alleged concurrent wrongdoer, it is quite another to rely on and plead out a cause of action an applicant has against a respondent but has chosen not to pursue. In civil litigation the onus is on an applicant to prove its case, and it must be within the control of the applicant as to which cause of action it seeks to rely on when bringing its claim. Whilst allowing a respondent to join alleged concurrent wrongdoers in an attempt to reduce its responsibility to an applicant, where a court or tribunal is satisfied those joined are concurrent wrongdoers, its task is to apportion responsibility; not liability. Although it might seem prudent for an applicant to make a direct claim against an alleged concurrent wrongdoer, it is a matter for them whether they do so. 
34	Accordingly, the Builder’s application for joinder is refused. I will reserve costs with liberty to apply. Any application for costs will be determined on the papers.

DEPUTY PRESIDENT C AIRD