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Queensland Building Services Authority v J M Kelly (Project Builders) Pty Ltd

 

[2013] QCA 320

Reported at [2015] 1 Qd R 532

 

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

DELIVERED ON:

25 October 2013

DELIVERED AT:

Brisbane 

HEARING DATE:

11 October 2013

JUDGES:

Chief Justice and Fraser JA and Mullins J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

  1. Allow the appeal with costs.
  2. Vary the declaration ordered in the Trial Division so that it provides as follows:

“It is declared that Direction to Rectify and/or Complete numbered 36338 issued by the respondent to the applicant is void.”

  1. Dismiss the application made in the Trial Division for a declaration that Direction to Rectify and/or Complete numbered 35691 issued by the respondent to the applicant is void.
  2. The parties have leave to make submissions as to the costs of the proceedings in the Trial Division in accordance with paragraph 52(4) of Practice Direction No. 3 of 2013 within seven days or within such extended time as is ordered by the Court, a Judge of Appeal or Registrar.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – where the appellant issued directions to the respondent pursuant to s 72 of the Queensland Building Services Authority Act 1991 (Qld) (‘the Act’) requiring rectification of certain building work within 28 days – where the appellant sent two directions to the respondent by post on 17 December 2010 and 17 June 2011 – where the primary judge held those directions were not validly given by post because they required the rectification work to be carried out within a period of less than 28 days – where the appellant also sent the 17 December 2010 direction to the respondent by email on that date – where the appellant argued that the primary judge erred in holding that the 17 December 2010 direction had not been effectively served by email – where the appellant contended that the respondent failed to fulfil the onus which lay upon it to prove that the email had not been opened on 17 December 2010 – where the respondent did not adduce direct evidence that the email had not been received and opened by an employee of the respondent acting in the scope of their employment – where the respondent argued that the evidence justified the primary judge in inferring that the email had not been opened on that date – whether the primary judge erred in holding that the 17 December 2010 direction was invalid

PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – APPROPRIATE FORM OF RELIEF - DISCRETION OF COURT – FUTILITY OF DECLARATION – where the appellant argued that the declaration that the 17 June 2011 direction was invalid should be set aside for lack of utility – where the appellant only conceded in the Trial Division that the 17 June 2011 did not comply with s 72(3) of the Act, and did not clearly concede that the 17 June 2011 direction was invalid until the appeal – where the work described in the two directions differed – whether the 17 June 2011 direction should be set aside for want of utility

Acts Interpretation Act 1954 (Qld), s 39

Electronic Transactions (Queensland) Act 2001 (Qld), s 24(1)

Queensland Building Services Authority Act 1991 (Qld), s 72(1), s 72(3), s 109A

Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1, cited

Aristocrat Technologies Inc v IGT (2008) 80 IPR 413; [2008] APO 33, cited

Austar Finance Group Pty Ltd v Campbell (2007) 215 FLR 464; [2007] NSWSC 1493, considered

Browne v Dunn (1894) 6 R 67, cited

Capper v Thorpe (1998) 194 CLR 342; [1998] HCA 24, cited

Chief Executive Department of Transport v Glasgow [2001] QSC 378, considered

Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd (2007) 23 BCL 292; [2006] NSWCA 259, cited

McNab Constructions Australia Pty Ltd v Queensland Building Services Authority [2013] QSC 57, cited

Metacorp Australia Pty Ltd v Andeco Construction Group Pty Ltd (2010) 30 VR 141; [2010] VSC 199, cited

Oakwood Constructions Pty Ltd v Wyndon Properties Pty Ltd [2010] QCA 323, cited

Penfold Projects Pty Ltd v Securcorp [2011] QDC 77, cited

Penrith City Council v East Realisations Pty Ltd (in liq) (2013) 63 MVR 180; [2013] NSWCA 64, cited

Reed v Eire [2009] NSWSC 678, cited

SCN Pty Ltd v Smith [2006] QCA 360, cited

Spencer v Bamber [2012] NSWCA 274, cited

Sullivan Nicolaides Pty Ltd v Papa [2012] 2 Qd R 48; [2011] QCA 257, cited

West v Government Insurance Office of New South Wales (1981) 148 CLR 62; [1981] HCA 38, cited

COUNSEL:

J K Bond QC, with E A Gaffney, for the appellant

P J Dunning QC, with M J Smith, for the respondent

SOLICITORS:

HWL Ebsworth for the appellant

Cooper Grace Ward for the respondent

[1] CHIEF JUSTICE:  I have had the advantage of reading the reasons for judgment of Fraser JA. I agree with the orders proposed by his Honour, and with his reasons.

[2] FRASER JA:  It was declared in the Trial Division that two directions issued by the appellant to the respondent under s 72 of the Queensland Building Services Authority Act 1991 (Qld) (‘the Act’) were void.  The appellant authority has appealed against that declaration.  It argued that the primary judge was mistaken in holding that one of the directions, a direction dated 17 December 2010, was void.  As to the other direction, dated 17 June 2011, the appellant did not contend that it was valid but argued that the declaration that it was void should be set aside for want of utility.

Background

[3] Section 72 empowers the appellant in certain circumstances to direct a person who has carried out building work to rectify that building work within a specified period.  For present purposes the directly relevant provisions are ss 72(1) and (3):

 

“(1)If the authority is of the opinion that building work is defective or incomplete, the authority may direct the person who carried out the building work to rectify the building work within the period stated in the direction.

(3)The period stated in the direction must be at least 28 days unless the authority is satisfied that, if the direction is not required to be complied with within a shorter period—

 

(a)a substantial loss will be incurred by, or a significant hazard will be caused to the health or safety of, a person because of the defective building work; or

(b)the defective building work will cause a significant hazard to public safety or the environment generally.”

The appellant accepted that the qualifications in s 72(3) did not apply, so that the period stated in the direction was required to be at least 28 days.

[4] On each of 17 December 2010 and 17 June 2011 the appellant posted to the respondent a document bearing the date upon which it was posted and directing the respondent to rectify building work within 28 days “from the date of this document”.  Each direction would have been received in the ordinary course of post, and was in fact received by the respondent, on a date which was later than the date of the document.  The primary judge held that the directions were not validly given by post because, contrary to s 72(3), they required the rectification to be carried out within a period of less than 28 days from the date when the respondent received them by post.[1]  The 17 June 2011 direction was given only by post and was therefore void.  That is not in issue in this appeal.

[5] The appellant also sent the 17 December 2010 direction by email.  The evidence on this topic is contained in an affidavit sworn by the respondent’s general manager, Mr Murphy.  He swore that he fulfilled his role as general manager from the respondent’s head office in Rockhampton and that in 2004 and 2005 the respondent had been the project manager of a multi-storey residential complex at Woody Point.  (The directions related to units in that complex.)  The appeal turns upon the following paragraphs of the affidavit:

 

“4.On 17 December 2010, an email was sent from the [appellant] to two separate email addresses associated with the [respondent] – [email address omitted] and [email address omitted]. The [email address omitted] email address is directed to the company’s head office in Rockhampton and the [email address omitted] email address is directed to the company’s branch office in Brisbane.

5.This email from the [appellant] attached an electronic copy of direction to rectify and/or complete number 35691 issued by the [appellant] to the [respondent] in relation to the project. Exhibit JGM-1 is a copy of the email sent from the [appellant] to the [respondent] on 17 December 2010.

6.I have not been able to ascertain from the [respondent’s] records whether the email sent on 17 December 2010 was read or printed by the [respondent] on or about that date. However, typically emails sent to the [email address omitted] email address referred to in paragraph 4 are initially briefly reviewed by a particular member of the [respondent’s] administrative staff who then makes the appropriate enquiries to determine which company representative should receive such emails and subsequent to determining that person, forward such emails to the relevant company representative. This particular administrative staff member is based within the [respondent’s] head office in Rockhampton and is employed to work 8.30 am to 4.30 pm, Monday to Friday.

7.I have no recollection of receiving any enquiry from that particular administrative staff member as to whom the email sent on 17 December 2010 should be forwarded to. I do recall that on or about 17 December 2010 previous inclement  weather within the region had resulted in the rise of the water levels of the Fitzroy River and that moderate flooding was occurring which had, or had the potential to impact upon various assets owned by the company. I recall that my time and that of the Managing Director’s was taken up with preparing for flooding and attempts to mitigate the effects of that flooding on or about 17 December 2010.”

[6] Exhibit JGM-1 comprises four documents.  The first is a copy email in the following form:

 

“From: Dena Galbraith-Snedic [mailto: [email address omitted]]

Sent: Friday, 17 December 2010 11:14 AM

To: J M Kelly (Project Builders); jmkbris

Cc: Tony Townshend

Subject: 3-1901-09 Double Bay Apartments

Importance: High

Dear Sir/Madam,

Please find attached Direction 35691 in relation to Double Bay Apartments.

The originals are in the mail today.

Please contact Tony Townshend if you need any clarification.

Yours sincerely,”

[7] The second and third documents are together numbered consecutively from “Page 1 of 5” to “Page 5 of 5”.  The second document is a letter from the appellant to the respondent with an introductory reference to “Direction to Rectify and/or Complete No. 35691” and a concluding reference to 17 December 2010 as the date upon which it was posted.  The letter refers to a site inspection having been carried out at the Woody Point property in December 2009 and states that “you are directed to carry out the work listed on page 3 at the property.  The time period for completion is TWENTY EIGHT (28) days from the date of this document.”  The letter includes a statement that “[t]his Direction to Rectify is to be read in conjunction with attached document”.  The third document is dated 17 December 2010.  It describes itself as “Direction to Rectify and/or Complete No. 35691”, states the period for completion as “(28) days from date above”, and describes the allegedly defective or incomplete building work in detail.  The fourth document is a lengthy report by a person claiming to have expertise in the investigation and assessment of building defects of the kind alleged by the appellant.

The primary judge’s reasons

[8] On that evidence the primary judge held that the 17 December 2010 direction had not been effectively served by email on that date.  In so holding the primary judge rejected the appellant’s arguments based upon s 109A of the Act and s 39 of the Acts Interpretation Act 1954:

Section 109A of the Act

“109AService of documents

(1) A document may be served under this Act on a licensee by leaving it at, or sending it by post, telex, facsimile or similar facility to, the address of the licensee in the register of licensees kept by the authority.

(2) Subsection (1) does not limit the Acts Interpretation Act 1954, section 39.”

Section 39 of the Acts Interpretation Act:

“(1)If an Act requires or permits a document to be served on a person, the document may be served—

(b)on a body corporate—by leaving it at, or sending it by post, telex, facsimile or similar facility to, the head office, a registered office or a principal office of the body corporate.

(2)Subsection (1) applies whether the expression ‘deliver’, ‘give’, ‘notify’, ‘send’ or ‘serve’ or another expression is used.

(3)Nothing in subsection (1)—

(a)affects the operation of another law that authorises the service of a document otherwise than as provided in the subsection; …”.

[9] The primary judge held that s 109A(1) was not relevant because there was no evidence to establish, and the appellant did not submit, that the email was sent to an address in the register kept by the appellant.  The appellant did not challenge that conclusion.  The primary judge held that s 39 of the Acts Interpretation Act was not applicable because s 72 of the Act does not require or permit a document to be served, but instead authorises the appellant to direct the carrying out of rectification work.  His Honour considered that Chief Executive Department of Transport v Glasgow[2] supported the conclusion that a direction was not established by proof of acts which would amount to service under s 39 of the Acts Interpretation Act.

[10] The primary judge next considered the question whether the evidence nevertheless “establishes that the computer records [demonstrated] a direction … on the 17th of December 2010”.  His Honour referred to the explanation of the effect of an email transmission given by Austin J in Austar Finance Group Pty Ltd v Campbell[3] and adopted the view that, until the recipient of the notice of receipt of an email accessed the email inbox and opened the email, the email and its attachments were not physically, as an electronic file, within the computer of the addressee of the email.  The addressee would receive such an attachment in readable form only upon opening the email.  The primary judge accepted that the direction would have been given if the electronic document attached to the email was received by the respondent in a readable form.  His Honour considered, however, that he “should proceed on the basis that the email was not opened at 11.14 on the 17th of December 2010.”  That conclusion was referable to the following findings:

 

(a) “There is no evidence that the e-mail was opened then”.

(b) Mr Murphy’s affidavit and the exhibited copy email established only “a notice of receipt of an e-mail, an electronic document residing on a server, not in the [respondent’s] premises”.

(c) The respondent’s practice was that a member of the respondent’s administrative staff was responsible for reviewing emails “which it seems in this case at least would likely have meant that the e-mail had to be opened” and “determining the person to whom the e-mail should be sent for attention”.

(d) The respondent’s general manager “received no enquiry from the staff member on the 17th of December 2010 about dealing with the e-mail”.

(e) The flooding to which Mr Murphy referred had the potential to impact on the respondent’s assets, it occupied the attention of the manager and general managing director on that day, and it “may also have occupied the attention of staff”.

The 17 December 2010 direction

[11] The appellant argued, first, that the primary judge erred in failing to find that the respondent did not fulfil the onus which lay upon it to prove that it had not opened the email on 17 December 2010, with the result that the respondent failed to establish that the direction had not been given on that date.  The appellant’s second argument was that, whether or not the respondent opened the email, by application of the facultative provisions in s 39 of the Acts Interpretation Act[4] and s 24(1) of the Electronic Transactions (Queensland) Act 2001,[5] the direction was given on 17 December 2010 when the email entered the respondent’s “designated … information system”.

[12] The respondent argued that the evidence justified the primary judge in inferring that, if the email had been opened by the administrative staff member, it would have been brought to Mr Murphy’s attention and that, since the email was not drawn to Mr Murphy’s attention on 17 December 2010, it was not opened on that date.  The respondent argued that the appellant should not be permitted to rely upon s 24(1) of the Electronic Transactions (Queensland) Act 2001 because the appellant did not rely upon that provision in the Trial Division; alternatively, that provision was inapplicable because the respondent’s email was not “designated” as an information system for the purposes of s 24(1) and the primary judge correctly held that s 39 of the Acts Interpretation Act was not applicable.

[13] For the following reasons the appellant’s first argument should be accepted.

[14] In many contexts a document is regarded as having been “served” when it is brought to the notice of the person required to be served, and “[a]t all events, it will be ‘served’ in such contexts if the efforts of the person who is required to serve the document have resulted in the person to be served becoming aware of the contents of the document.”[6]  It may be that a direction under s 72(1) is duly made if it is brought to the notice of the person to be directed,[7] or even if a document embodying the direction is merely served in one of the ways contemplated by one or both of the facultative provisions upon which the appellant relied in its second argument, but it is not necessary to consider those questions.  There is no reason to doubt that the appellant effectively directed the respondent to rectify the building work if the appellant communicated that direction to the respondent in any way which led to the respondent actually being informed of the contents of the direction on 17 December 2010.  That test would fulfil even the demanding requirements for which the respondent contended in reliance upon Chief Executive Department of Transport v Glasgow.  The regulation construed in that case obliged the Chief Executive of the Department of Transport in certain circumstances, by a written “return notice”, to “inform” a person that the person’s licence was to be cancelled, to “require the person” to return the licence to the chief executive in a specified way and within a specified maximum time (subject to an exception), and to “inform the person” about one section of the regulation.  Thomas JA observed that the regulation did not “in its terms require or permit a document to be ‘served’ on a person or ‘delivered’, ‘given’, ‘notified’, or ‘sent’”, rejected a submission that the word “informed” in the regulation amounted to “another expression” within the meaning of s 39(2) of the Acts Interpretation Act, and held that all of the words in s 39(2) were ejusdem generis with “serve” and did not import “the actual reception of information by the recipient”.[8]

[15] If s 72(1) analogously required the respondent actually to be informed of the contents of the direction on 17 December 2010, that certainly will have occurred if the electronic direction attached to the appellant’s email was received and opened by an employee who was authorised by the respondent to receive the direction on its behalf;[9] in such a case the employee’s knowledge of the contents of the direction would be attributed to the respondent.[10]  For that reason, and because the respondent, as the party which claimed the declaration bore the onus of proving the facts necessary to justify it,[11] the declaration was appropriate only if the respondent proved at the very least that the electronic direction attached to the email was not received and opened by an employee of the respondent acting within the scope of his or her employment.

[16] The respondent did not adduce direct evidence that the electronic direction attached to the email was not received and opened by an employee of the respondent acting within the scope of his or her employment.  If Mr Murphy’s affidavit was capable of sustaining an inference to that effect, a question would arise whether that inference should have been drawn.  Mr Murphy’s affidavit suggests that the administrative staff member to whom he referred had personal knowledge of the critically relevant circumstances, including whether he or she opened and examined the email and attached direction, whether any enquiry about the appropriate recipient of the email was made and of whom, and whether the email was forwarded to the appropriate company representative.  The respondent argued that it was not to be expected that, by the time of the application in the Trial Division, the administrative staff member would recall whether or how he or she dealt with that email, but that was an explanation which, if it was available, should have been given in evidence by that employee.[12]  The respondent did not adduce evidence explaining why the staff member did not give evidence, so that the respondent’s failure to adduce evidence from the staff member at least made it less likely that the court would draw the inferences for which the respondent contended.[13]

[17] More fundamentally, the relevant inference was not capable of arising on the evidence.  Mr Murphy did not express an opinion that the email was not read or printed on 17 December 2010, he did not give evidence that he was qualified to express any such opinion, and he did not give evidence of any facts from which such a conclusion could be inferred.  In these circumstances the respondent’s case was not advanced by Mr Murphy’s evidence that he was unable to ascertain from the respondent’s records whether the email was read or printed by the respondent on or about 17 December 2010.  Mr Murphy also did not identify himself or anyone else either as the person of whom “appropriate enquiries” ordinarily would have been made to determine which company representative should receive the email or as that company representative.  There was no evidence about the number of persons employed by the respondent when the direction was given but a record kept by the respondent suggested that it was not a small organisation.[14]  For all the evidence reveals, the person who ordinarily would have received and dealt with the email and the attached direction was the respondent’s managing director who, in common with the unnamed administrative staff member and any other employee who might have received the email, did not give evidence.  The respondent’s evidence is not inconsistent with any one or more of those persons having received and read the direction on the day upon which the appellant sent it to the respondent by email.

[18] Contrary to one of the respondent’s arguments, the tenor and content of Mr Murphy’s affidavit was incapable of justifying an inference that, as general manager, he would have been the appropriate staff member to whom an enquiry about the email ordinarily would have been directed.  Were that the case, it is to be expected that Mr Murphy would have said so, rather than merely referring in general terms to “appropriate enquiries to determine which company representative should receive such emails…”.  As the respondent’s general manager and the person who deposed to the respondent’s usual practice in dealing with emails, it must be inferred that Mr Murphy knew the identity (whether it was himself or someone else) both of the person of whom any enquiry ordinarily would be made about this email and of the company representative to whom the email ordinarily would have been forwarded after any necessary enquiry on that topic was answered.  Mr Murphy’s silence on that topic is deafening.

[19] Mr Murphy also did not give evidence that the administrative staff member did not ask him about the email or the attached direction.  He gave evidence only that he had no recollection of such an enquiry.  That is plausible in view of the lapse of time, but it tends merely to reinforce the conclusion that there was no sufficient basis for inferring that there was no such enquiry of him on 17 December 2010.  Contrary to a further submission for the respondent, there is also no basis for thinking that, on that day, the administrative staff member responsible for dealing with emails was occupied with the effect of the flooding referred to in Mr Murphy’s affidavit.  That is something which that staff member might well recall if he or she had been asked to give an affidavit, and Mr Murphy confined his evidence on that topic to “my time and that of the Managing Director’s”.  There is no basis in this evidence for an inference that the flooding had any effect upon the respondent’s typical practice that emails sent to the relevant email address were “initially briefly reviewed by a particular member of the [respondent’s] administrative staff who then makes the appropriate enquiries to determine which company representative should receive such emails and subsequent to determining that person, forward such emails to the relevant company representative.”

[20] Because the appellant’s case relied upon the inadequacy of the respondent’s evidence rather than upon challenges to that evidence or inferences capable of arising from it, the fact that Mr Murphy was not cross-examined did not contravene the rule of practice in Browne v Dunn.[15]  The language in Mr Murphy’s affidavit is clear and precise.  It was incapable of being stretched to the large extent which would be necessary to fill the gaps in the respondent’s evidence.  In the result, there was no evidence which was capable of giving rise to any “reasonable and definite inference”[16] to negate the inference, arising from Mr Murphy’s evidence of the respondent’s usual practice, that the email and attached electronic direction were opened and read by an employee of the respondent whose duties comprehended the receipt of that direction on the respondent’s behalf.

[21] The declaration made in the Trial Division should be varied to omit reference to the 17 December 2010 direction.

The 17 June 2011 direction

[22] The appellant argued in the Trial Division that there was no utility in declaring that either direction was invalid.  The primary judge rejected that argument.  Separate proceedings had been brought by the respondent and by “Group Kildey” in the Queensland Civil and Administrative Tribunal under s 86(1)(e) of the Act for a review on the merits of the appellant’s decisions to issue the directions.  The primary judge concluded, following McNab Constructions Australia Pty Ltd v Queensland Building Services Authority, that the Tribunal did not have jurisdiction to grant the declaration sought in the Supreme Court.  For that reason, and because noncompliance with a valid direction might constitute an offence against the Act, the primary judge considered that there was utility in granting declaratory relief.

[23] The appellant argued that if, as I would hold, the application for a declaration that the 17 December 2010 direction was void should have been dismissed, there was no utility in declaring that the 17 June 2011 direction was void.  The ground of this submission, as I understood it, was that here there was no controversy to resolve because the appellant had conceded in the Trial Division that the 17 June 2011 direction was void.  The appellant’s written submissions in the Trial Division did not clearly make such a concession.  Rather, after submitting that the 17 December 2010 direction was valid, the appellant conceded only that the 17 June 2011 direction “does not comply with s.72(3) of the QBSA Act”.[17]  Similarly, in oral argument the appellant’s counsel acknowledged only that the 17 June 2011 direction was “not in accordance with s 72”.  Since the work described in that direction differed from the work described in the 17 December 2010 direction, a conclusion that the earlier is not void would have no bearing upon the utility of declaring that the later direction is void.  The clear concession on appeal that the 17 June 2011 direction is void came too late to justify a submission that the primary judge’s declaration to that effect lacked utility.

Proposed orders

[24] In my opinion the appropriate orders are:

 

1. Allow the appeal with costs.

2. Vary the declaration ordered in the Trial Division so that it provides as follows:

“It is declared that Direction to Rectify and/or Complete numbered 36338 issued by the respondent to the applicant is void.”

3. Dismiss the application made in the Trial Division for a declaration that Direction to Rectify and/or Complete numbered 35691 issued by the respondent to the applicant is void.

4. The parties have leave to make submissions as to the costs of the proceedings in the Trial Division in accordance with paragraph 52(4) of Practice Direction No. 3 of 2013 within seven days or within such extended time as is ordered by the Court, a Judge of Appeal or Registrar.

[25] MULLINS J:  I agree with Fraser JA.

Footnotes

[1] See McNab Constructions Australia Pty Ltd v Queensland Building Services Authority [2013] QSC 57.

[2] [2001] QSC 378.

[3] (2007) 215 FLR 464 at [22].

[4] As to which the appellant cited Penfold Projects Pty Ltd v Securcorp Ltd [2011] QDC 77 at [232] (Irwin DCJ) for the proposition that s 39 comprehended service by email.

[5] The appellant relied upon Reed v Eire [2009] NSWSC 678 at [29]-[32] for the proposition that the respondent’s use of the relevant email address sufficiently “designated” its email account, but acknowledged the decision to contrary effect in Aristocrat Technologies Inc v IGT (2008) 80 IPR 413 at [24]-[33] (a decision of a delegate of the Commissioner of Patents).

[6] Capper v Thorpe (1998) 194 CLR 342 at [21].

[7] See Spencer v Bamber [2012] NSWCA 274, in which Campbell JA (with whose reasons on this topic Basten and Macfarlan JJA agreed) discussed Capper v Thorpe and other decisions (at [196]-[210]) and concluded (at [211]) that an application by a mortgagee for an order for foreclosure was duly served under s 61(2)(d) of the Real Property Act 1900 (NSW) where the notice was received in an email account used at the time by the person intended to be served, whether or not the notice was actually ever understood by that person. See also Metacorp Australia Pty Ltd v Andeco Construction Group Pty Ltd [2010] VSC 199 at [163].

[8] [2001] QSC 378 at [22].

[9] See Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd [2006] NSWCA 259 at [58] (per Hodgson JA, Handley JA and Hunt AJA agreeing in that respect).

[10] See SCN Pty Ltd v Smith [2006] QCA 360 at [98] (Wilson J); Oakwood Constructions Pty Ltd vWyndon Properties Pty Ltd [2010] QCA 323 at [28] (Philip McMurdo J).

[11] See Massoud v NRMA Insurance Ltd (McLelland CJ in Eq.), noted in Blanch v British American Tobacco Australia Services Ltd (2005) 62 NSWLR 653 at 657, and the cases there cited.

[12] West v General Insurance Office of New South Wales (1981) 148 CLR 62 at 70.

[13] See Sullivan Nicolaides Pty Ltd v Papa [2012] 2 Qd R 48 at [162]-[166].

[14] According to that record, the respondent’s turnover for the relevant year exceeded $240,000,000: ExJGM-5 to Mr Murphy’s affidavit.

[15] (1894) 6 R 67. The rule requires the cross-examiner to put to the witness “the nature of the case upon which it is proposed to rely in contradiction of his evidence…”: Allied Pastoral Holdings Pty Ltd v Commission of Taxation [1983] 1 NSWLR 1 at 16 (Hunt J), followed in Smith v Advance Electronics Pty Ltd [2005] 1 Qd R 65 at [31]. See also Kuhl v Zurich Financial Services (2011) 243 CLR 361 at 387 (Heydon, Crennan and Bell JJ).

[16] Penrith City Council v East Realisations Pty (in liq) [2013] NSWCA 64 at [62], citing Luxton v Vines (1952) 85 CLR 352 at 358, Holloway v McFeeters (1956) 94 CLR 470 at 477, and Derrick v Cheung (2001) ALR 301 at [13].

[17] Outline of submissions of the respondent, paragraph 11.

Close

Editorial Notes

  • Published Case Name:

    Queensland Building Services Authority v J M Kelly (Project Builders) Pty Ltd

  • Shortened Case Name:

    Queensland Building Services Authority v J M Kelly (Project Builders) Pty Ltd

  • Reported Citation:

    [2015] 1 Qd R 532

  • MNC:

    [2013] QCA 320

  • Court:

    QCA

  • Judge(s):

    de Jersey CJ, Fraser JA, Mullins J

  • Date:

    25 Oct 2013

  • Selected for Reporting:

    Editor's Note

Litigation History

Event Citation or File Date Notes
Primary Judgment - - -
Appeal Determined (QCA) [2013] QCA 320 25 Oct 2013 -

Appeal Status

{solid} Appeal Determined (QCA)