Queensland Building Services Authority v Mahony
[2013] QDC 27
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- Unreported Judgment
- Appeal Determined - Special Leave Refused (HCA)
- Queensland Building Services Authority v Mahony[2013] QDC 27
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Queensland Building Services Authority v Mahony[2013] QDC 27
Queensland Building Services Authority v Mahony[2013] QDC 27
DISTRICT COURT OF QUEENSLAND
CITATION: | Queensland Building Services Authority v Mahony [2013] QDC 27 |
PARTIES: | QUEENSLANDBUILDING SERVICES AUTHORITY (Plaintiff) AND GERARD WILLIAM MAHONY (Defendant) |
FILE NO: | 1996/2009 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 12 February 2013 |
DELIVERED AT: | Mt Isa |
HEARING DATE: | 4 September 2012 |
JUDGE: | Reid DCJ |
ORDER: | Judgment for the Plaintiff against the Defendant in the sum of $193,431.28 as a debt due and owing pursuant to s 71 of the Queensland Building Services Authority Act. Further order that the Plaintiff recover from the Defendant interest at the rate of ten per cent per annum on the sums set out in [7] hereof from the dates when such sums were paid by the Plaintiff, up to 12 February 2013, calculated to the sum of $115,357.92. Further order that the Defendant pay the Plaintiff’s costs of and incidental to the action to be agreed or, failing agreement, to be assessed. |
CATCHWORDS: | Application for summary judgment – UCPR - Queensland Building Services Authority Act |
SOLICITORS: | Rostron Carlyle Solicitors for the Plaintiff Defendant in person, assisted by P.J Cosgrove (Solicitor) |
Introduction
- [1]In this matter the Plaintiff has applied for summary judgment in a claim for $193,431.28 said to be a debt owing by the Defendant pursuant to the provisions of s 71 of the Queensland Building Services Authority Act 1991 (“the Act”).
- [2]The action is, for proceedings in which summary judgment is being sought, a comparatively old one. It was commenced in 2009. The pleadings have taken a somewhat tortuous route. Before me the Plaintiff relied on its further Amended Statement of Claim and the respondent on its fourth amended defence. I shall refer to those documents hereafter as the Statement of Claim and the defence.
Summary judgment provisions
- [3]Rule 292 of UCPR provides:
“(1)A Plaintiff may, at any time after a Defendant files a notice of intention to defend, apply to the court under this part for judgment against the Defendant.
- (2)If the court is satisfied that –
- (a)the Defendant has no real prospect of successfully defending all or a part of the Plaintiff’s claim; and
- (b)there is no need for a trial of the claim or the part of the claim;
the court may give judgment for the Plaintiff against the Defendant for all or the part of the Plaintiff's claim and may make any other order the court considers appropriate.”
- [4]The approach to construction of this rule was considered by the Court of Appeal in Bolton Properties Pty Ltd v JK Investments (Australia) Pty Ltd [2009] QCA 135. If one leaves to one side the debate in that case over whether the phrase “bound to fail” equates with “no real prospect of succeeding” the case nevertheless demonstrates that the power to give summary judgment is an exceptional remedy, only granted in clear cases where it is obvious that the applicant is entitled to judgment.
- [5]In that case Chesterman JA cited with approval the following passage from the judgment of Holmes J (as she then was) in QUT v Project Constructions (Aust) Pty Ltd (in liq) [2003] 1 Qd.R 259 at 264/5:
“The more appropriate inquiry is in terms of the rule itself: that is, whether there exists a real, as opposed to a fanciful, prospect of success. However, it remains, without doubt, the case that:
‘great care must be exercised to ensure that under the guise of achieving expeditious finality a Plaintiff is not improperly deprived of his opportunity for the trial of his case.’”
- [6]Consideration of the rule itself indicates:
- (a)The application may be made at any time after the Defendant files a notice of intention to defend. In relation to this the annotations to the rule in Queensland Civil Procedure suggest that delay is not a basis upon which summary judgment can solely be opposed – see NAB v Troiani & Ors [2001] QSC 77 per de Jersey CJ and see NAB v Troiani & Anor [2002] QCA 196;
- (b)The court has a discretion to give judgment;
- (c)The discretion only arises if:
- (i)the Defendant has no real prospect of successfully defending all of or part of the claim; and
- (ii)there is no need for a trial of the claim or a part thereof.
The Action
- [7]In its Statement of Claim the Plaintiff seeks to recover four separate sums paid by it to owners of properties on which the Defendant, a licensed builder had carried out building work. The four properties can be identified as the Zender-Zutter house, the Godfrey house, the Halson house and the Author house. All are in Rainbow Beach. The Plaintiff alleges, inter alia, that the Defendant’s work was in some way defective or not completed, that each of the property owners made a claim under the provisions of the relevant statutory insurance policy issued pursuant to the Act, and that it paid, pursuant to s 71 of the Act, the following sums for rectification or completion of the work:
Zender-Zutter house$9,700.00
Godfrey house$11,319.00
Halson house$95,452.88
Author house$79,960.00
- [8]Many of the allegations in the Statement of Claim are admitted.
- [9]The Defendant expressly admits the allegations in paragraphs 1, 2, 3, 4(a), 4(b), 4(c)(a), 4(d), 5, 15, 20, 23, 24, 26-29, 31, 31A, 40, 43(a), 44, 47, 53-56, 57(a), 60, 61, 64, 67(a), 76-80, 81(a), 86, 97 and 98 of the Statement of Claim. In respect of other paragraphs the Defendant pleads that the facts alleged in the Statement of Claim are not admitted but does not accompany those non admissions with any explanation of his belief that those allegations cannot be admitted. Consequently, having regard to the provisions of r 166(5) of the UCPR the respondent is taken to admit such allegations being those in paragraphs 10(b), 11-13, 17, 19, 21, 22, 32-35, 37-39, 41, 43(b), 45, 46, 48-50, 57(b), 58, 59, 62, 63, 67(b), 68-74, 81(b), 82-85, 88-90, 92, 94-96 and 99-101 of the Statement of Claim. Furthermore, the respondent does not plead to paragraphs 18, 30, 36 or 93(a) of the Statement of Claim and so pursuant to r 166(1) of UCPR is taken to have admitted the facts alleged therein.
- [10]Seen in this way the only allegations in dispute are as follows:
Re Zender-Zutter house – the allegations in paragraphs 6, 7, 9, 10(a), 14, 16 and 25 of the Statement of Claim.
Re Godfrey house – the allegations in paragraphs 42 and 51 of the Statement of Claim.
Re Halson house – the allegations in paragraphs 4(c)(b), 52, 65, 66 and 75 of the Statement of Claim.
Re Author house – the allegations in paragraphs 87, 91 and 93(b) of the Statement of Claim.
- [11]I shall in due course examine those allegations.
The Act
- [12]Before doing so it is helpful to consider relevant provisions of the Act.
- [13]Section 71(1) of the Act provides as follows:
“If the Authority makes any payment on a claim under the insurance scheme, the Authority may recover the amount of the payment, as a debt, from the building contractor by whom the relevant residential construction work was, or was to be, carried out or any other person through whose fault the claim arose.”
- [14]Section 86(2) provides:
“(2) The Tribunal must not review the following decisions of the authority –
- (a)A decision to recover an amount under section 71;
- (b)A decision to direct rectification or completion of tribunal work by a building contractor and any finding by the authority in arriving at the decision if –
- (i)28 days have elapsed from the date the direction to rectify or complete was served on the building contractor and the contractor has not, within that time, applied to the tribunal for a review of the decision; and
- (ii)The authority has –
A.started a disciplinary proceeding against the building contractor by an application under division 4; or
B.served a notice on the building contractor advising a claim under the statutory insurance scheme has been approved in relation to tribunal work stated in the direction; or
C.started a prosecution, or served an infringement notice, for an offence against s 72(10);
- (c)A decision about the scope of works to be undertaken under the statutory insurance scheme to rectify or complete tribunal work if 28 days have elapsed since the decision was served on the building contractor and the contractor has not, within that time, applied to the tribunal for a review of the decision.”
- [15]The effect of this section was considered by McGill DCJ in Manwin v QBSA [2007] QDC 298. The tribunal had ordered Mr Manwin to pay to QBSA $6,750.00 being the amount paid out of the insurance fund by QBSA on a claim on the statutory insurance scheme. Mr Manwin alleged that the sum paid out included the cost of work said to be rectification work with respect to building work he did not perform and was not contracted to perform.
- [16]At paragraph 27 of his judgment His Honour said:
“[27]If a person in the position of the appellant wants to argue about the scope of the works to be done under the claim, requiring that argument to occur before the work is done and paid for avoids the risk that work would be paid for under the statutory insurance scheme which ultimately proved not to have been properly paid for under that scheme. This was obviously a legislative attempt to avoid a situation where a payment was made under the insurance scheme which could not then be recovered in disciplinary proceedings.
[28] The present case really serves as a good example of the legislative scheme. If the appellant had objected to the scope of the works on the basis that it included work which he had already rectified, and appealed to the tribunal, presumably the tribunal would have found, as it ultimately did find, that he had already rectified Item 3 in the direction to rectify, and on that basis the scope of the works ought not to include Item 3, which it seems to me was essentially to carry out Item 3 in the direction to rectify. In that situation, tenders would only have been called in respect of the balance of the items in the scope of the works, and presumably the amount paid out under the statutory insurance scheme would have been less, but the lesser amount would have been recoverable from the appellant. It seems clear enough that the intention was that any such challenge to the scope of the works had to occur at that time. It is I think therefore reasonable to interpret the legislation as a whole on the basis that the loss or damage suffered by the respondent is quantified simply by reference to the amount that has in fact been paid out under the statutory insurance scheme in accordance with the scope of works decided earlier under the Act.
[29] It follows that in the present proceeding before the tribunal there was no power in the tribunal to consider whether all of the work should have been done under the insurance scheme, or to apportion the amount paid to the rectifying builder so as to exclude the amount paid for redoing the work covered by Item 3 in the direction to rectify. I appreciate that perhaps this is not the more natural interpretation of s 107(3) of the 2003 Act, but it seems to me that any other interpretation would not give proper effect to the clear legislative intention in s 86 of the 1991 Act. The two pieces of legislation were obviously intended to work together. It also means that the amount the appellant ultimately has to pay is almost certainly more than would have been the case if he had applied for a review of the decision as to the scope of works in a timely way. Nevertheless, it seems to me clear that in the proceeding subject to this appeal there was nothing the tribunal could do about that, and that there is nothing I can do about it either.”
- [17]In Lange v QBSA [2011] QCA 58 both the President and Ann Lyons J expressed some doubt about whether on a proper construction of s 71 (and s 111C since in that case the QBSA sought to recover money paid under the scheme from the directors of a building company which had been placed in liquidation) the payment by the authority of a sum on an insurance claim automatically entitles the authority pursuant to s. 71 of the Act to recover that sum as a debt from the contractor. By contrast Wilson AJA found that in the event of such a payment, provided it was a bona fide payment, by an insurer under a colourable construction of the policy, the authority was then entitled to recover that sum. Wilson AJA pointed out that under s 71 a recovery contemplated was of “a payment or a claim under the insurance scheme” rather than the recovery of the amount of a “payment under the insurance scheme”.
- [18]In my view Her Honour’s view has much to commend it. The majority did not specifically reject it. Rather they held, in the particular circumstances of that case, that it was not appropriate to determine that question. The President however said that “it seems unlikely that parliament would have intended the QBSA to recover from building contractors… payments wrongly made to those insured by the QBSA on policies entered into under Part 5 of the Act”. Ann Lyons J expressed a similar reluctance but said she expressed no concluded view.
- [19]In my view McGill DCJ in Manwin highlights the reasons why such a construction of s 71 was appropriate.
- [20]If I were to have to decide the question, which does not depend on disputed questions of fact, I would determine that upon a bona fide payment by the authority under s 71 it was then entitled to recover such sum from the Defendant by whom the relevant residential construction was carried out.
History
- [21]Generally similar histories apply to each of the houses i.e. the Plaintiff received claims from the owners, arranged inspections, issued the Defendant with a direction to rectify and then little or nothing was done by the Defendant. The Plaintiff then issued failure to rectify notifications and scope of work statements before receiving tenders, accepting quotes (in the sums set out in [7]] hereof) and after the rectification work had been completed authorised payments of those sums to the different contractors who had performed the works. With respect to the Halson and Author houses the Defendant made application to the Commercial and Consumer Tribunal to review the Plaintiff’s decision that he had not satisfactorily attended to items of work the subject of the directions to rectify. On 23 October 2006 the tribunal confirmed the Plaintiff’s decision with respect to the Halson house and on the 3rd of July 2006 it confirmed the Plaintiff’s decision with respect to the Author house. The respondent did not appeal either decision.
- [22]Because of ss. 71 and 86(2) of the Act and my view of the decision in Manwin’s case it therefore seems to me that the Defendant cannot now:
- (a)Review the Plaintiff’s decision to recover the sums paid pursuant to s 71 of the Act;
- (b)Review the Plaintiff’s decision to direct rectification or completion of any “tribunal work” and any findings of the Plaintiff in arriving at that decision.
- [23]It appears to me the Defendant cannot now argue about the scope of works done under the claim. The purpose and effect of the Act is, as McGill DCJ held in Manwin’s case, to require that argument to occur before the work is done and paid by the Plaintiff.
- [24]That view is fortified by a consideration of the facts relating to each of the claims. I shall deal with each in turn.
Zender-Zutter house
- [25]The only issues in dispute with respect to this claim are those contained in paragraphs 6, 7, 9, 10(a), 14,16 and 25 of the statement of claim. I shall deal with each in turn.
Para 6 of the Statement of Claim
- [26]The Defendant does not admit the allegations in the Statement of Claim concerning the extent of his contractual obligation to renovate the residence at a cost of $10,000 because he alleges “there was an oral agreement to carry out construction an [sic] hourly rate up to a limit of $5,000. Further, the Defendant was to supply a carpenter to assist in construction at $30 per hour” (see para 6 of the defence).
- [27]Nothing in that allegation can affect the Plaintiff’s right to recover for the cost of rectifying any defective work.
Para 7 in the Statement of Claim
- [28]The Defendant does not admit the allegations of particular warranties incorporated into the contract by the operation of Part 4 of the Domestic Building Contracts Act. The basis of his non-admission is that “there was no written contract with the first claimants and that the first claimants were responsible as Principal Owner Builder for permits” (para 7 of defence).
- [29]The Defendant however admits that he entered into a contract with the owners to undertake domestic building works as defined in Domestic Buildings Contract Act (see para 5 of the Statement of Claim and of the defence). Section 7(2)(c) of the Domestic Buildings Contract Act provides that a contract between the holder of an Owner Builder permit and a building contractor is not a “domestic building contract” as defined in that Act. Consequently there can be no basis for the assertion in para 7 of the defence that the first claimants were “Principal Owner Builder” or any assertion that they were not entitled to the benefit of the statutory insurance. To do so would be inconsistent with the admission that the Defendant entered into a contract to undertake domestic building works.
Para 9 of the Statement of Claim
- [30]The Plaintiff asserts that the owner paid $10,000 to the Defendant, who undertook domestic building work on the property. The Defendant asserts he received only $5,000. This is of no relevance to the issue concerning the Plaintiff’s entitlement to recover sums paid under s 71 of the Act.
Para 10(a) of the Statement of Claim
- [31]The Plaintiff asserts that the Defendant is the building contractor who carried out the relevant residential construction work on the property. The Defendant pleads, as elsewhere in his defence, that the claimants “are Owner Builders and are ineligible for QHWS”. I have explained in relation to para 7 of the defence why, having regard to para 5 of the Statement of Claim and the defence, that proposition is untenable.
Para 14 of the Statement of Claim
- [32]The Defendant pleads that the claimants are “ineligible for QHWS”. This is again a repetition of the argument I considered in relation to para 7 and I note there is no reference to reliance on this allegation in the Defendant’s submissions filed on 3 September 2012 (see para 49 thereof).
Para 16 of the Statement of Claim
- [33]The Plaintiff’s allegation in para 16 of the Statement of Claim is that on 24 January 2005 Danny Hayes, an authorised inspector of the Plaintiff, carried out an inspection of the residential building work carried out by the Defendant at the Zender-Zutter house. In his defence the Defendant does not admit this allegation and pleads that Hayes “was an employee of the Cooloola Shire Council and that a report was completed first by Michael Reddell”. There is again no reference to para 16 of the Defendant’s submission dated 3 September 2012 and it appears to me to have no effect. There is no basis for the view that because the person who provided the report is an employee of some other organisation that he is not able to provide an appropriate building report to the Plaintiff.
Para 25 of the Statement of Claim
- [34]This allegation in the Statement of Claim, that the Plaintiff may recover the payment as a debt from the Defendant pursuant to s 71(1) of the Act, is also not admitted in the defence. The Defendant in doing so relies on the assertion that “there is no fault by the Defendant as required by s 71(1)”. The Defendant however carried out the original work (para 9(b) of the Statement of Claim and para 9 of the defence), was served with a direction to rectify the work and with a scope of the works to so rectify it (paras 19 and 20 of the pleadings), the Defendant did not then apply to the Tribunal to review the Plaintiff’s decision about the scope of such rectification (see affidavit of Darren Lee Philip filed 14 June 2012, para 3(a) and further affidavit of Philip filed 28 August 2012, para 4(e)(i)). In the circumstances the Defendant cannot now dispute the scope of rectification work as explained in the passage from Manwin (supra) set out in para 16 hereof.
- [35]There seems to me no doubt that after receiving a claim under the statutory insurance scheme relating to the Zender-Zutter house the Plaintiff arranged an inspection of the property by a building inspector. As a result of his report it directed the Defendant to carry out rectification work on 4 April 2005. Subsequently, on 16 May 2005, it wrote to the Defendant notifying him of its decision that none of the work had been satisfactorily attended to. On 22 June 2005 it issued the Defendant with a notice setting out the scope of work to be undertaken under the insurance scheme to rectify the defective work. Subsequently in the period between 20 July and 5 September 2005 the Plaintiff received tenders from a number of contractors to rectify the work. On 15 September 2005 it approved the insurance for the work in the sum of $9,700.00 and wrote to the Defendant notifying him of that. The work was subsequently undertaken by a builder and he rendered an invoice for $9,700.00. This amount was paid by the Plaintiff authority to the builder on 7 December 2005.
- [36]In my view there is no basis for defending the claim of the Plaintiff with respect to the Zender-Zutter house.
Godfrey house
- [37]The only allegations in dispute with respect to this property are those contained in [42] and [51] of the Statement of Claim. Those paragraphs are in the following terms:
“[42]On or between 29 June 2005 and 7 September 2005 the Plaintiff formed the view that:
- (a)the building works were defective and incomplete, the particulars of which were set out in correspondence from the Plaintiff to the Defendant on or about 7 September 2005 (“the Plaintiff’s second notice”); and
- (b)that such works were performed without proper care and skill; and
- (c)gave the Defendant 28 days within which to attend to the matters identified in the Plaintiff’s notice.
[51]Pursuant to s 71(1) of the Act, the Plaintiff may recover the payment as a debt from the Defendant.”
- [38]The Defendant’s pleading with respect to those assertions is as follows:
“[42]The Defendant does not admit the allegations in Paragraph 42 of the Amended Statement of Claim as the inspector who carried out the inspection was a builder with an open license whose scope of work does not include inspection, investigation and provision of a report per Part 6 Reg 2(3)(a) of Schedule 2 of QDSA Regulation 2003.
[51]The Defendant does not admit the allegations in Paragraph 51 of the Amended Statement of Claim that the payment by BSA can be recovered as a debt as there is no fault by the Defendant as required by S 71(1). QBSA.
- [39]The Defendant does not dispute he carried out the domestic building work or that he was served with a direction to rectify the work he carried out and also with a scope of the works so rectified. The allegation in paragraph [42] of the defence is untenable for two reasons set out in [33] hereof.
- [40]As with the Zender-Zutter residence, he cannot now dispute the scope of works to rectify what was found to be his defective work, as McGill QC DCJ pointed out in the passage in Manwin to which I previously referred. The purpose and effect of the Act is to require any such argument to occur before the work is done and paid for by the Plaintiff.
- [41]Accordingly there is no basis for defending the claim of the Plaintiff with respect to the Godfrey house.
Halson house
- [42]The matters in dispute with respect to this property are those contained in paragraphs 4(c) and (b), 52, 65, 66 and 75 of the Statement of Claim. I shall deal with each in turn.
Para 4(c), (b) and para 52 of the Pleadings
- [43]These two paragraphs contain essentially the same allegations. It is said that the Halsons were not the owners of their home. It was, it seems, registered in the name of a company, Denolyn Pty Ltd, of which they were directors. It seems from the material that the building was however a residence. The Defendant pleads:
- (a)that they were not “resident owners” within the meaning of the Domestic Building Contracts Act;
- (b)Denolyn Pty Ltd was the owner and “ineligible to make a claim upon QHWS”.
- [44]There is no further reference to this matter in the Defendant’s submissions. So far as I can ascertain the Defendant asserts that merely because the property was owned by a company, there is no legal basis for making a claim, even though the building is a residence.
- [45]The Statement of Claim is defective with respect to its pleading about this matter. Paragraph 52 appears to be drafted on the basis that the company, Denolyn Pty Ltd, was in fact the third claimant. This is not borne out by consideration of para 4(c) of the Statement of Claim. Be that as it may it was not in dispute that the work carried out was “residential construction work” since the Defendant admits in his defence that the work undertaken was pursuant to the Domestic Building Contract Act 2000 (see paragraphs 54-56 of the Statement of Claim, admitted in the defence). The sole issue appears to concern the effect of the corporate ownership of the house. In regard to that house it is alleged in the defence that the property was “not a residence but a commercial property of Denolyn Pty Ltd”. The Halsons are directors of Denolyn Pty Ltd which apparently owned the subject property. In paragraph 52 of the Statement of Claim it is apparently sought to be alleged, although defectively as I have said, that the Defendant and Denolyn Pty Ltd entered into a contract pursuant to which the Defendant agreed to undertake domestic building works within the meaning of that term as used in the Domestic Building Contracts Act. In paragraph 52 of the defence that allegation is not admitted, not because it was not a residence that was being built or altered but because “Denolyn Pty Ltd was the owner of the property and ineligible to make a claim upon QHWS”. The Defendant appears to be asserting that because the registered owner was a company, this construction of a residence was not “domestic building works”.
- [46]The Defendant has, as I earlier indicated, applied to the tribunal for review of the Plaintiff’s decision about that matter but that application was unsuccessful. That tribunal decision is set out at page 86 and following of the exhibits to the affidavit of Darren Philip filed on 28 August 2012, being document 68 on the count file. It appears from that decision that it was not disputed that the building was a residence. It appears clear to me the Defendant’s denial in its pleadings was not because of any belief about the purpose of the building but because it was owned by a company rather than by individuals.
- [47]In my view nothing turns on the fact that the property is owned by a company. It does not affect the categorisation of work on it as “residential construction work”.
Author house
- [48]The allegations in dispute in relation to this property are, as I have said, confined to the allegations in paragraphs 87, 91 and 93(b) of the Statement of Claim. I shall set those paragraphs out in full, together with the relevant paragraphs of the defence:
“[87]On or about 23 May 2005, the fourth claimant elected to terminate the contract pursuant to clause 28.4 of the fourth contract.
[91]On or about 23 May 2005, Michael Reddell (“Reddell”), an authorised inspector of the Plaintiff carried out an inspection (the fourth inspection) of the residential building work carried out by the Defendant on the property pursuant to the fourth contract.
[93](b)Pursuant to the matters pleaded in paragraphs 76 to 88 above:
(a)…
- (b)the Defendant is a person through whose fault the claim arose within the meaning of s 71(2)(b) of the QBSA Act.”
“Defence
[87]The Defendant does not admit the allegations in paragraph 87 of the Amended Statement of Claim. The Defendant claims it was an illegal termination CCT QR 002.
[91]The Defendant does not admit the allegations in paragraph 91 of the Amended Statement of Claim. The Defendant states that Michael Reddell’s inspection and report were outside the scope of his work as a builder.
[93]The Defendant does not admit to the allegation in paragraph 93(b) of the Amended Statement of Claim. The Defendant states that there is no fault as required by s 71(1) of QBSA Act 1991 as the BSA inspector Michael Reddell was a builder with an open license whose scope of work per Part 6 Reg (3)(a) of Schedule 2 of QBSA Regulation 2003 does not include inspection, investigation and provision of a report.”
- [49]In relation to [87] of the pleadings, the Defendant makes no further relevant submission in his written submissions. I note that the Defendant’s pleading is not of facts, which might be said to impugn the lawfulness of the Plaintiff’s termination of the contract, but is an assertion of illegality made without reference to any factual foundation.
- [50]Moreover para 4(d)(vii) of the affidavit of Darren Lee Philip filed 28 August 2012 and the decision of the Tribunal, contained at pp 130-137 of that affidavit, reveal that the Defendant applied to the Tribunal for review of the Plaintiff’s decision to direct him to rectify work on the property, but that application was unsuccessful. That decision is not subject to challenge in these proceedings and the Defendant has not appealed that decision.
- [51]Furthermore, as with the other matters, in my view there is no basis for the allegation concerning Mr Reddell. There is in my view nothing in the legislation to suggest the Plaintiff was not entitled to rely on a report of Mr Reddell. The report he provided was not itself building work and so subject to the ambit of his license. Rather he was, as an experienced builder, providing a report to assist the Tribunal to deal with the claim before it. There is in my view nothing in the Defendant’s argument on this issue and he did not in submissions refer me to any statutory basis for precluding Mr Reddell from performing the function that he did.
- [52]Finally the allegation in [93] of the defence overlooks the force and effect of the making of a determination by the Plaintiff, and of the Defendant’s failure in its application to the Tribunal to which I have referred.
Summary
- [53]In the circumstances I conclude in this case:
- (I)the Plaintiff’s delay in bringing the application does not preclude it from obtaining summary judgment;
- (II)(a)that in view of the fact that the Defendant has no real
prospect of successfully defending any part of the claims; and
- (b)because, in the circumstances, there is no need for a trial of the claim since the Plaintiff would inevitably be successful and the Defendant’s opposition to the claim is without foundation
that the Plaintiff’s application for summary judgment should be successful.
- [54]When delivering judgment in this matter I indicated I would allow interest on the sums paid by the plaintiff pursuant to S. 71 of the Act at 10% pa from the date of such payments. I requested the Plaintiff’s solicitors to advise me and the defendant of such dates and gave the defendant a short time to indicate if he did not agree with them. The plaintiff’s solicitor subsequently did so and the Defendant did not disagree. The sums set out in [7] hereof were paid as follows:
$9,700.00 on 7.12.2005
$11,319.00 on 29.5.2006
$95,452.88 on 18.4.2007
$79,960.00 on 18.6.2007
- [55]I calculate interest at 10 percent on the said sums, from the date of payment to 12.2.2013 as follows:
$9,700 at 10% p.a. for 7 years 67 days (7.183 yrs) = $6,967.51
$11,319 at 10% p.a. for 6 years 259 days (6.709)= $7,593.92
$95,452.88 at 10% p.a. for 5 years 300 days (5.821) = $55,563.12
$79,960.00 at 10% p.a. for 5 years 240 days (5.657) = $45,233.37
TOTAL = $115,357.92
- [56]I therefore order:
- (a)there be judgment for the Plaintiff against the Defendant in the sum of $193,431.28 as a debt due and owing pursuant to s 71 of the Queensland Building Services Authority Act;
- (b)the Plaintiff also recover interest thereon at the rate of ten per cent per annum on the sums set out in [7] hereof from the dates on which such sums were paid by the Plaintiff pursuant to the Act calculated in the sum of $115,357.92
- (c)the Defendant pay the Plaintiff’s costs of and incidental to the action to be agreed and, failing agreement, to be assessed.
- [57]I should also indicate that on 12 February when delivering the judgment, subject to calculating interest, I indicated I would allow interest at 10% and that figure was also referred to in the title page of the judgment I provided to the parties. On the last page there was a typographical error in which interest of 8% was referred to. I have corrected that in this final judgment and reasons.