Queensland Building Services Authority v Samimi
[2014] QDC 198
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Appeal Determined (QCA)
- Queensland Building Services Authority v Samimi[2014] QDC 198
- Add to List
Queensland Building Services Authority v Samimi[2014] QDC 198
Queensland Building Services Authority v Samimi[2014] QDC 198
DISTRICT COURT OF QUEENSLAND
CITATION: | Queensland Building Services Authority v Samimi & Anor [2014] QDC 198 |
PARTIES: | QUEENSLAND BUILDING SERVICES AUTHORITY (plaintiff) v KAMRAN SAMIMI (defendant) MOJGAM SAMIMI (second defendant) |
FILE NO: | 1264 of 2012 |
DIVISION: | Civil |
PROCEEDING: | Application for summary judgment |
ORIGINATING COURT: | District Court at Brisbane |
DELIVERED ON: | Judgment delivered ex tempore 1 September 2014 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 1 September 2014 |
JUDGE: | Everson DCJ |
ORDER: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – where the plaintiff paid claims in respect of incomplete and defective building work carried out by the defendant – where the plaintiff commenced proceedings against the defendant to recover those amounts as a debt pursuant to ss 71(1) and 111C of the Queensland Building Services Authority Act 1991 (Qld) – where the plaintiff seeks summary judgment – whether the defendant has no real prospect of successfully defending all or part of the plaintiff’s claim. Queensland Building and Construction Commission Act 1991 (Qld) ss 71(1), 111C. Uniform Civil Procedure Rules 1999 (Qld) r 292. Mahony v Queensland Building Services Authority [2013] QCA 323, applied. Namour v Queensland Building Services Authority [2014] QCA 72, applied. Queensland Building Services Authority v Orenshaw & Anor [2012] QSC 241, applied. |
COUNSEL: | G I Thompson for the plaintiff P Ahern for the defendant |
SOLICITORS: | Rostron Carlyle for the plaintiff Peter Ryan Lawyers for the defendant |
- [1]This is an application for summary judgment pursuant to rule 292 of the Uniform Civil Procedure Rules 1999 (“UCPR”).
- [2]Essentially, if the Court is satisfied that the defendant has no real prospect of successfully defending all or part of the plaintiff’s claim, and that there is no need for a trial of the claim or part of the claim, the Court may give judgment for the plaintiff against the defendant for all or part of the plaintiff’s claim.
- [3]The dispute before me concerns a proceeding by the plaintiff to recover $400,000 together with interest and costs that was paid out pursuant to an insurance policy in respect of domestic building work. The plaintiff was responsible for administering the statutory scheme of insurance for incomplete and defective residential construction work in Queensland pursuant to the Queensland Building and Construction Commission Act 1991 (“the QBCCA”).
- [4]The defendants are the former directors of a building company, Spectrum House & Land Pty Ltd (“the builder”), which had liquidators appointed on or about 24 February 2010, and which was deregistered on or about 13 August 2011. The builder undertook construction of dwellings at 29 and 31 Macquarie Street, St Lucia, pursuant to a written contract entered into on or about 20 November 2006. Disputes between the builder and the owner arose in the course of construction, and the two dwellings the subject of the contract were not completed by the builder. After the owner lodged a formal complaint with the plaintiff, the plaintiff then made determinations as to the appropriate quantum of the claim.
- [5]Part of the process of determining the appropriate quantum of the claim required a determination by the Queensland Civil and Administrative Tribunal (“QCAT”), dated 5 September 2011, which was as to whether, on it’s proper interpretation, clause 4.2 of the applicable policy meant that the plaintiff should pay out an amount of $200,000, or $400,000. The determination of QCAT was that the owner should be paid a total sum of $400,000 in respect of their claim. It is this amount that gives rise to the application before me today.
- [6]Section 71 of the QBCCA relevantly states:
- [7]Section 111C of the QBCCA states that “each individual who was a director of the company when the building work the subject of the claim was, or was to have been, carried out” also owes the commission the amount of any payment made.
- [8]On behalf of the defendants, it is submitted that an error has been made in carrying out its functions of administering the insurance policy by the plaintiff, and that the assessment made by the plaintiff is contrary to section 1.3 and section 2.2 of the insurance policy administered by it, in that the owner’s remaining liability in each instance exceeds the amounts properly payable under the policy. This is disputed by the plaintiff, which has put on evidence that the maximum payment made of $400,000, is in accordance with the obligations that are set out in the relevant sections of the policy. It is submitted by the defendants that this factual dispute requires the matter to be referred to trial, there being a need for a trial of the claim in the circumstances.
- [9]Claims of this type have been the subject of a number of recent decisions of the Supreme Court of Queensland and the Queensland Court of Appeal. In Queensland Building Services Authority v Orenshaw & Anor [2012] QSC 241, Henry J observed at [38]:
- [10]In Mahony v Queensland Building Services Authority [2013] QCA 323, Orenshaw was applied by Gotterson JA in the leading judgment of the Court of Appeal. He made the observation at para [34]:-
- [11]It was emphasised in Mahony that other legal avenues were open to parties who were unhappy with decisions of the QBSA, and in particular remedies pursuant to the Judicial Review Act 1991 were noted.
- [12]In Namour v Queensland Building Services Authority [2014] QCA 72, the same approach was taken by the Court of Appeal to obligations to pay pursuant to QBSA policies. In writing the leading judgment of the court, Fraser JA observed at para [24]:
- [13]Subsequently, his Honour observed at [25] that on the facts before him “there is no reason to doubt that each claim was paid in accordance with the terms of the policy” and it was therefore “not necessary to decide whether or to what extent these matters might be justiciable in a recovery action under s 71(1)”.
- [14]The defendant seized upon this latter observation by Fraser JA in submitting that on their case, the payments made by the plaintiff were not paid in accordance with the policy. It is submitted that the payments made were made where there was no obligation to pay anything, having regard to the wording of the policy and the calculations undertaken by the plaintiff’s agent.
- [15]I have already noted that I am satisfied that the plaintiff’s calculations are such that this is an erroneous submission, however, putting this to one side, I need to determine whether it gives rise to the need for a trial of the dispute before me and is therefore fatal to the plaintiff’s application for summary judgment.
- [16]Putting the defendants’ argument at its highest, it is alleged that the plaintiff has made an error in administering its insurance scheme. This error appears to have been compounded by the order of QCAT dated 5 September 2011, although the specific issue was not ventilated before QCAT. Any such error, if it exists, is an error that has occurred in the course of the administration of the plaintiff’s insurance scheme. It is not a factual error of such a nature that the claim was not a claim under the insurance scheme and the payments made were not payments on such a claim. To paraphrase the wording of Gotterson JA in Mahoney, there is no doubt that the plaintiff has made a payment on a claim under the insurance scheme. What the defendants are agitating is the reasonableness of the payment made by the plaintiff and the amount that was properly owing pursuant to the insurance policy. These matters were expressly excluded as being relevant considerations in a debt recovery action of this type in Namour.
- [17]In all of the circumstances, I am satisfied that the defendants have no real prospect of successfully defending all or part of the plaintiff’s claim and there is no need for a trial of the claim or part of the claim. I therefore give summary judgment for the plaintiff against the defendants.
- [18]I therefore give judgment for the plaintiff against the defendants in the sum of $481,369.83. I further order that the defendants pay the plaintiff’s costs of and incidental to the proceeding on the standard basis.