CITATION: | Full Building Solutions Pty Ltd & Burt (Wyatt) v Queensland Building and Construction Commission [2021] QDC 77 |
PARTIES: | FULL BUILDING SOLUTIONS PTY LTD ACN 602 269 330 (first applicant) and KYLIE ANNE BURT (WYATT) (second applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent) |
FILE NO: | 221/20 |
DIVISION: | Appellate |
PROCEEDING: | Appeal pursuant to s 45 Magistrates Court Act 1921 (Qld) |
ORIGINATING COURT: | Magistrates Court, Brisbane |
DELIVERED ON: | 22 June 2021 |
DELIVERED AT: | Cairns |
HEARING DATE: | 30 April 2021 |
JUDGE: | Fantin DCJ |
ORDERS: |
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CATCHWORDS: | APPEAL – CIVIL – PROCEDURAL – PROFESSIONS & TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – where the first applicant was contracted to do residential building work – where the second applicant was the director of the first applicant – where the homeowner made a complaint of defective work – where the respondent gave a direction to rectify – where the first applicant did not comply with the direction– where the respondent engaged a consultant who invited tenders to carry out the rectification work – where the respondent made a payment under the statutory insurance scheme – where the respondent sought to recover that amount as a debt pursuant to ss 71 and 111C of the Queensland Building and Construction Commission Act 1991 (Qld) – where summary judgment for that debt was entered for an amount less than the “minor civil dispute limit” – where the form of the order was irregular or defective District Court Act 1967 (Qld) ss 92, 113 Magistrates Court Act 1921 (Qld) s 45 Uniform Civil Procedure Rules 1999 (Qld) rr 166, 190, 292, 302, 388, 460, 659, 660, 765, 766, 783, 785. Queensland Building and Construction Commission Act 1991 (Qld) ss 71, 74, 111C Agar v Hyde (2000) 201 CLR 552 American Express International Inc v Hewitt [1993] 2 Qd R 352 Baker v Arkman Pty Ltd [2014] QDC 165 Best Price Real Estate Pty Ltd v Equity 2 Pty Ltd [2021] QCA 99 Bolton Properties Pty Ltd v J K Investments (Australia) Pty Ltd [2009] 2 Qd R 202 Deputy Commission of Taxation v Salcedo [2005] 2 Qd R 232 Elderslie Property Investments No 2 Pty Ltd v Dunn [2007] QSC 192 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 Jonathan v Mangera [2016] QCA 86 Johns v Johns [1988] 1 Qd R 138 Mahony v Queensland Building Services Authority [2013] QCA 323 Murdoch v Alex Mackay & Co [2017] QDC 81 Namour v Queensland Building Services Authority [2015] 2 Qd R 1 Queensland Building and Construction Commission v Lifetime Securities (Australia) Pty Ltd & Anor [2014] QCA 161 Queensland Building Services Authority v Orenshaw & Anor [2012] QSC 241 Queensland University of Technology v Project Constructions (Aust) Pty Ltd (in liq) [2003] 1 Qd R 259 Ramzy v Body Corporate for GC3 CTS38396 & Anor [2012] QDC 397 Wanstall v Burke [1925] St R Qd 295 Willmot & Anor v McLeay & Anor [2013] QCA 84 |
COUNSEL: | The applicants were self represented. J Eylander for the Respondent. |
SOLICITORS: | The applicants were self represented. Robinson Locke Litigation Lawyers for the Respondent. |
Nature of the proceeding
Background
Form of Order
“The judgment of the court is that:
Relevant legal principles
[13] As explained by McGill SC DCJ in Ramzy v Body Corporate for GC3 CTS 38396 [2012] QDC 397 at [41]-[42],[3] the test laid down by this provision is one of not granting leave to appeal unless the court is of the opinion that the case is one of gravity, or involving some important question of law, or affecting property of considerable value; or unless it is a case which is otherwise of public importance, or is of a very substantial character”.[4]
[14] Further, in American Express International Inc v Hewitt [1993] 2 Qd R 352 at 353, Davies JA observed that:
“…when s 92(2) [the equivalent provision in the District Court Act 1967 then in force] speaks of an important question of justice, it is not speaking merely of the injustice which a party will generally suffer when a decision is made against that party which appears to be wrong. It is speaking of a question which goes beyond the correctness or otherwise of the decision… Merely demonstrating that a decision is arguably or even probably wrong does not establish that an important question of justice is involved.”
Grounds of appeal and application for leave to appeal
Application to adduce further evidence
Consideration
Denial of natural justice in Magistrates Court?
No real prospect of defending the claim?
“[34] Section 71(1) confers a right to recover as a debt from any of the designated persons “any payment on a claim under the insurance scheme”. It is sufficient for recovery under the section that the authority have made a payment on a claim under the insurance scheme. The statutory right to recover is not conditioned upon the legal quality of a determination by the authority to make the indemnity payment or of any anterior step taken by the authority that had led to the decision to pay.
[35] That is not to say that a decision to make an indemnity payment or any anterior step is not reviewable. At the relevant time, Division 3 of Part 7 of the QBSA Act conferred a review jurisdiction on the Commercial and Consumer Tribunal (“the Tribunal”) with respect to the following decisions by the authority: to direct or not direct rectification or completion work on a building; that work undertaken at the direction of the authority was not of a satisfactory standard; about the scope of works to be undertaken under the statutory insurance scheme in order to rectify; and to disallow a claim under the scheme wholly or in part. A decision by the authority to recover an amount under s71(1) was not reviewable by the Tribunal. However, it was a decision which was judicially reviewable in the Supreme Court of Queensland pursuant to the provisions of the Judicial Review Act 1991. So, too, for other anterior decisions of the authority. The availability of review of those kinds and at those stages provides a sound rationale for a legislative intention that the types of decisions to which I have referred, not be justiciable in s71(1) debt recovery proceedings. Another indicator of such an intention is that s 71 itself specifies certain defences which may be raised in proceedings under the section. None of these are relevant to the kind of defence that the appellant would wish to agitate in these proceedings.” [footnotes omitted]
“At the other extreme, it is unlikely that s 71 could be avoided by a building contractor disputing discretionary factual conclusions occurring as part of the professional judgment exercised by the QBSA in deciding whether and how much to pay in respect of a claim. It would not be enough to avoid the statutory liability imposed by s 71 for a defendant to point merely to an error of fact connected with the claim process. It must logically have been a factual error of such a nature that the claim was not, on the facts correctly known, a claim under the insurance scheme or that the payment sought to be recovered was not a payment on such a claim.”
[19] The scheme of the Act is that a building contractor or other interested person who wishes to challenge such decisions should make the challenge before the respondent pays under the policy. A building contractor who does not make such a challenge is liable under s71(1) whether or not one of those anterior decisions might have been the subject of a challenge. In the case of a building contractor which is a company, a director caught by s111C(6) is similarly unable to challenge one of those anterior decisions in a proceeding for recovery of a debt. This is so because the director’s liability is fixed by reference only to the liability of the building contractor.”
“[20] The appellant’s own evidence was instead that he did not “pursue a review of the decision to cancel the Company’s licence at the time of cancellation because Sean Fitzpatrick was looking after the financial affairs of the company, as he was the Managing Director of the Company. Unbeknownst to me, Sean Fitzpatrick resigned as Director in December 2007.” … More fundamentally, this argument did not come to grips with the scheme of the Act that challenges to such decisions should be made well before a recovery proceeding is brought against the contractor or directors.”
“The decision in Mahony supports the view that the right to recover conferred by s 71(1) is not conditioned upon the legal quality of any step that the respondent may have taken antecedent to a decision to make payments under the scheme.”
“[34] Whilst the right to recover under s 71(1) is not conditioned as Lifetime Securities submits that it is, that is not to say that compliance by QBCC with the provisions of Part 6 might never have potential relevance to a recovery action under s71(1). For example, such a circumstance might arise in the following way. Under the Insurance Policy Conditions, the amount that QBCC may pay under the insuring clause is limited to the reasonable cost, as determined by QBCC, of undertaking the rectification work: clause 4.2(a). A failure on the part of QBCC to call tenders when it was required to do so under s 74(1) or (2) might give scope for an argument that an amount paid by QBCC in respect of rectification work exceeded reasonable cost and, to that extent, was not a valid payment under the scheme.
Conclusion
Orders
[1]See s 45(5) MCA and Queensland Civil and Administrative Tribunal Act 2009, Schedule 3.
[2]Affidavit of Grace Gunn filed 14 April 2021 Ex GG1 pp 190, 198, 261. Annexure A to the Outline (containing the calculations) in the Magistrates Court file.
[3]By reference to Wanstall v Burke [1925] St R Qd 295, subsequently followed in Johns v Johns [1988] 1 Qd R 138.
[4]See also Baker v Arkman Pty Ltd [2014] QDC 165 at [33] and [34] per Robertson DCJ.
[5]Willmot & Anor v McLeay & Anor [2013] QCA 84 at [17]. See also Bolton Properties Pty Ltd v J K Investments (Australia) Pty Ltd [2009] 2 Qd R 202 per Daubney J.
[6]Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99.
[7]Deputy Commission of Taxation v Salcedo [2005] 2 Qd R 232 at [17].
[8]Agar v Hyde (2000) 201 CLR 552 at 575-576.
[9]Ibid.
[10]Queensland University of Technology v Project Constructions (Aust) Pty Ltd (in liq) [2003] 1 Qd R 259 at 265.
[11] Ibid.
[12]Deputy Commission of Taxation v Salcedo [2005] 2 Qd R 232.
[13]See Jonathan v Mangera [2016] QCA 86.
[14]The premium appears to have been paid by the homeowner’s credit card rather than by the first applicant, but nothing turns on this.
[15][2013] QCA 323.
[16]Ibid [31].
[17][2012] QSC 241 at [38].
[18][2015] 2 Qd R 1.
[19]Mr Wyatt deposed that this occurred in April 2018 but there are other documents suggesting it was in June 2018. Nothing turns on the exact date.
[20]Ibid [24].
[21][2014] QCA 161 at [33] per Gotterson JA.
[22]Elderslie Property Investments No 2 Pty Ltd v Dunn [2007] QSC 192 at [7] per Daubney J.
