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Queensland Building Services Authority v Lifetime Securities (Australia) Pty Ltd[2015] QDC 202

Queensland Building Services Authority v Lifetime Securities (Australia) Pty Ltd[2015] QDC 202

DISTRICT COURT OF QUEENSLAND

CITATION:

Queensland Building Services Authority v Lifetime Securities (Australia) Pty Ltd & Anor [2015] QDC 202

PARTIES:

QUEENSLAND BUILDING SERVICES AUTHORITY

(applicant/plaintiff)

v

LIFETIME SECURITIES (AUSTRALIA) PTY LTD ACN 010 752 351

(first respondent/first defendant)

AND

RALPH NOEL COLLINS

(second respondent/second defendant)

FILE NO/S:

4046/12

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

4 August 2015 ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

4 August 2015

JUDGE:

Samios DCJ

ORDER:

THE JUDGMENT OF THE COURT IS THAT:

  1. The First Defendant and the Second Defendant pay to the Plaintiff the amount of $227,574.56 including $50,587.06 interest to this day.
  2. The First Defendant and the Second Defendant pay the Plaintiff’s costs of and incidental to the proceeding, including those costs reserved, to be assessed on the standard basis.

CATCHWORDS:

PRACTICE – SUMMARY JUDGMENT FOR THE PLAINTIFF – R292 – where the applicant/plaintiff commenced a claim against the first and second respondents/defendants for improper building work – where the first and second respondents/defendants had their defence struck out – where the first and second respondents/defendants have not filed a further defence – whether the applicant/plaintiff is entitled to summary judgment against the first and second respondents/defendants

Legislation

Uniform Civil Procedure Rules 1999 (Qld) rr 171, 190, 288, 292

COUNSEL:

Mr M Cooke for the applicant/plaintiff

No appearance by counsel for the first respondent/first defendant

No appearance by counsel for the second respondent/second defendant

SOLICITORS:

Rostron Carlyle Solicitors for the applicant/plaintiff

No appearance by solicitors for the first respondent/first defendant

No appearance by solicitors for the second respondent/second defendant

  1. [1]
    HIS HONOUR:   This is an application by the plaintiff for summary judgment against the first defendant and the second defendant. The claim made by the plaintiff is as the statutory authority under the Queensland Building Services Authority Act 1991. The amount claimed is $176,987.50 basically paid out under what I would loosely describe as an insurance scheme for improper building work. The first defendant being the builder and the second defendant being a director of the first defendant and an individual capable of being sued. The defendants filed a notice of intention to defend, but subsequently filed an amended defence on 15 September 2014.
  1. [2]
    That defence filed on 15 September 2014 was ordered by his Honour Judge Everson to be struck out pursuant to rule 171 of the UCPR. The defendants have not since then filed a further defence. The evidence before me satisfies me that the defendants have been given notice of the plaintiff’s application which, as I’ve said, seeks against the defendants summary judgment today. There is an alternative application pursuant to rule 190 of the UCPR, however that rule I consider to be inappropriate to the present circumstances. That deals with admissions made by a party. Further, the court may give judgment or make another order even though other questions in the proceedings have not been decided under that rule. This is not a matter of admissions.
  1. [3]
    This is a case of the defendants failing to file a further defence and that defence which had been filed had been ordered to be struck out. Rule 292, sub-rule (2), which is the rule being relied upon, provides that 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. Further, under sub-rule (2) of rules 292, it is provided that if the court is satisfied that the defendant has no real prospect of successfully defending all or a part of the plaintiff’s claim and 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.
  1. [4]
    The plaintiff proceeds under this rule today. I am satisfied on the evidence before me that clearly, the defendant had no real prospect of successfully defending the plaintiff’s claim and there is no need for a trial of the claim. Therefore, I will be giving judgment for the plaintiff against the defendants for all of the plaintiff’s claim. And in addition, I will be adding interest in the judgment. If I were wrong about rule 292, sub-rule (2), then I consider the plaintiff comes within rule 288 of the UCPR. Pursuant to sub-rule (2) of that rule, I could give and would give the plaintiff judgment for the claim against the defendants and the interest that is claimed.
  1. [5]
    I’m satisfied on the affidavit of Elena Mastyuk that the amount claimed for interest has been properly calculated for today’s purposes. Therefore, I give judgment in favour of the plaintiff against the first defendant and the second defendant in the amount $227,574.56, which includes $50,587.06 interest to today. I will also order that the first defendant and the second defendant pay the plaintiff’s costs of and incidental to the proceedings, including those costs reserved to be assessed on the standard basis. Mr Cooke, who appears on behalf of the plaintiff this morning, has given me a draft order. It is proper in all the circumstances to make, therefore, an order as per the draft, initialled by me and left with the papers.
  1. [6]
    MR COOKE:   Thank you, your Honour.
  1. [7]
    HIS HONOUR:   Thank you, Mr Cooke.
Close

Editorial Notes

  • Published Case Name:

    Queensland Building Services Authority v Lifetime Securities (Australia) Pty Ltd & Anor

  • Shortened Case Name:

    Queensland Building Services Authority v Lifetime Securities (Australia) Pty Ltd

  • MNC:

    [2015] QDC 202

  • Court:

    QDC

  • Judge(s):

    Samios DCJ

  • Date:

    04 Aug 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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