Queensland Building and Construction Commission v Bush
[2015] QMC 11
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- Unreported Judgment
- Queensland Building and Construction Commission v Bush[2015] QMC 11
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Queensland Building and Construction Commission v Bush[2015] QMC 11
Queensland Building and Construction Commission v Bush[2015] QMC 11
MAGISTRATES COURTS OF QUEENSLAND
CITATION: | Queensland Building and Construction Commission v Bush [2015] QMC 11 |
PARTIES: | QUEENSLAND BUILDING AND CONSTRUCTUION COMMISSION (Plaintiff/Applicant) v GREGORY ALAN BUSH (Defendant/Respondent) |
FILE NO/S: | Mag-4508/2013 |
DIVISION: | Magistrates Court (Civil) |
PROCEEDING: | Application for summary judgment |
ORIGINATING COURT: | Magistrates Court, Brisbane |
DELIVERED ON: | 20 March 2015 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 16 March 2015 |
MAGISTRATE: | JR Clarke |
ORDER: | Application granted |
CATCHWORDS: | SUMMARY JUDGMENT – DEFECTIVE BUILDING WORK – STATUTORY INSURANCE SCHEME Uniform Civil Procedure Rules 1999, r 292 (UCPR) Queensland Building and Construction Commission Act 1991, s 71 Mahony v Queensland Building Services Authority [2013] QCA 323 McNab Constructions Australia P/L v Queensland Building Services Authority [2013] QSC 057 Namour v Queensland Building Services Authority [2014] QCA 72 Queensland Building and Construction Commission v Lifetime Securities (Australia) Pty Ltd & Anor [2014] QCA 161 Queensland Building and Construction Commission v Watkins [2014] QCA 172 Queensland Building and Construction Commission v Ward & Anor [2014] QSC 138 Queensland Building Services Authority v Samimi & Anor [2014] QDC 198 Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597; 187 ALR 117; 76 ALJR 598 Lange v Queensland Building Services Authority [2011] QCA 58 [2012] 2 QdR 457 Barry & Anor v Queensland Building and Construction Commission [2015] QSC 50 Coldham-Fussell & Ors v Commissioner of Taxation [2011] QCA 45 LCR Mining Group Pty Ltd v Ocean Tyres Pty Ltd [2011] QCA 105 |
COUNSEL: | Mr NM Cooke Mr C Garlick, direct brief for the Defendant/Respondent |
SOLICITORS: | Rostron Carlyle for the Plaintiff/Applicant |
- [1]The plaintiff applies under rule 292 for summary judgment in a claim and statement of claim commenced in this Court on 11 March 2013. A previous application for default judgment was granted but set aside upon the defendant entering an appearance and filing a defence and notice of intention to defend on 5 March 2015. In the circumstances, rule 292(2) UCPR relevantly provides that if the court is satisfied that the defendant has 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 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.
- [2]What is gleaned from the pleadings and the submissions before me is that:
- The defendant entered into a contract to conduct domestic building work at a Gold Coast address owned by Mr Jordan, (hereinafter relevantly referred to as the claimant);
- The claimant made a claim under the Queensland Building Services Authority Act, (as it then was) in respect of that work, which was not successful;
- A further claim was made against the plaintiff by the claimant under the Act, which was successful;
- The primary contention advanced on behalf of the respondent defendant in these proceedings is that the claimant was “not permitted to make that further claim”, apparently relying upon obiter dictum expressed by McMurdo P in the decision of Mahony v Queensland Building Services Authority[1] where her Honour referred to the statutory insurer making payments to those who were not “entitled” to claim under the insurance scheme;
- The defendant also relies on the decision of Dalton J in McNab Constructions Australia Proprietary Limited v Queensland Building Services Authority[2], delivered on 14 March 2013 (McNab) in submitting the payments made on the second or subsequent claim are rendered void as a consequence. I will return to McNab’s case in due course.
- [3]The submission on behalf of the plaintiff applicant were as follows. Mr Cooke referred to the guillotine effect of a payment being made by the Commission under the statutory insurance scheme pursuant to s 71 Queensland Building and Construction Commission Act 1991. He confirmed the Commission was charged with the responsibility of administering the insurance scheme. In that regard, issues of public policy take on significant relevance. Further, the submissions were directed at the provisions of the Act providing for a process of review or representation before the payment is made. However, once the payment is made under s 71, there can be no review. The payment was made on 8 February 2012. He submitted there is no evidence there had been any review.
- [4]The defendant argues, effectively, that whilst there was no review, there would not be a need to review the decision, it being apparently voided by the “impermissible” second or subsequent claim. Mr Garlick, who argued the case for the defendant, Mr Bush, conceded there was no specific term or clause in the contract of insurance, in this case, nor any statutory provision, nor court authority, that rendered someone in the claimant’s position disqualified from making a second or subsequent claim.
- [5]The following was further relevantly conceded:
- The defendant was aware of the second or subsequent claim within about one calendar month of the claim;
- There was nothing stopping the defendant from availing himself of the review mechanism provided in the Act;
- There had been sufficient time within which to make those representations or launch the review process. In this regard, I have also been assisted by a consideration of the affidavit of Mr Paul and the exhibits thereto and the fact the Commission did not make the payment under s 71 until about one calendar year later, providing ample time within which the defendant may have availed himself of the review process.
- [6]Quite simply, there was no review to QCAT, no judicial review sought, and no representations made within that time. On behalf of the plaintiff applicant, it was effectively argued that to accede to the defendant’s argument would be to provide a review in the trial of the action, which this Court simply does not have power to do. Mr Garlick stated the determination sought was ‘novel’, in that he could point to no judicial determination supporting it.
- [7]On behalf of the plaintiff, firstly it was submitted that s 71(1) of the Act confers a right to recover as a debt from any of the designated persons in the provision, any payment on a claim under the insurance scheme. It is sufficient for recovery under the provision 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 the determination by the authority to make the indemnity payment, or of any anterior step taken by the authority that led to the decision to pay.
- [8]Secondly, a building contractor is liable under s 71, irrespective of whether they are at fault. The authorities referred to were: Mahony; Namour v Queensland Building Services Authority [3]; Queensland Building and Construction Commission v Lifetime Securities (Australia) Proprietary Limited & Anor [4]. I will refer to Lifetime Securities again.
- [9]Thirdly, it was submitted a defendant cannot challenge, in defence of a claim under s 71, the plaintiff Commission’s decision to make the indemnity payment on the insurance claim or any anterior or antecedent step leading to the plaintiff Commission’s decision to make the payment on the claim. Again, the cases cited for authority for that proposition were Mahony, Namour and Lifetime Securities; also Queensland Building and Construction Commission v Watkins[5]; Queensland Building Services Authority v O'Dare (Daubney J 17 June 2014); Queensland Building and Construction Commission v Ward & Anor [6]; and Queensland Building Services Authority v Samimi and Anor [7].
- [10]Samimi seems to be the most recent authority. In that case, his Honour Judge Everson stated the following:
“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… 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.”
- [11]In his defence, the defendant pleads that he did carry out the work, denies that the work was defective, denies that he was to blame for the defective work and challenges the anterior or antecedent steps leading to the plaintiff Commission’s decision to make the indemnity payment on the claim. The matters raised by the defendant are expressly excluded as being relevant considerations in this action for debt recovery. Again, the authority for that proposition is derived from Mahony, Namour, Lifetime Securities, Watkins, Ward and Samimi. As to the proposition the plaintiff’s decision-makers cannot make a second decision in relation to the same type of claim, that proposition was held to be wrong by the High Court, particularly in the case of the Minister for Immigration & Multicultural Affairs and Bhardwaj[8].
- [12]As I have noted, the defendant has not attempted to seek a review. As I stated earlier, if that is not done, that is fatal to the respondent’s ability to raise cogent defences. It was also submitted on behalf of the plaintiff that the defendant has no prospect of successfully defending the Commission’s claim, and there was no need for a trial of the claim. This Court is not possessed of jurisdiction to make an order simply to subvert that situation so that the defendant can have a trial.
- [13]Returning to Mahony’s case, I note that the High Court refused special leave on 13 May 2014 in respect of that decision. In my view, the selection of obiter from the Honourable President needs to be read in context. Her Honour, it seems to me, was simply clarifying what she had said in Lange v Queensland Building Services Authority[9], (I note that case concerned a contract to build three townhouses). Her Honour relied upon the decision given by Wilson AJA in that case, finding the conclusion reached was sufficient to dispose of the appeal. She went on to say (emphasis added):
“Wilson AJA at [64] to [74], discusses a further contention of QBSA as to the construction and effect of s 71(1) and s 111C(3), (6) and (7) of the Act. The contention was not raised at first instance and nor did the QBSA raise it in a notice of contention. This Court heard only brief argument about it. In those circumstances, it is in my view undesirable to express a concluded view on the point. I observe, however, that it seems unlikely that Parliament would have intended for QBSA to recover from building contractors (or where building contractors are companies, their directors) payments wrongly made to those insured by the QBSA on policies entered into under part 5 of the Act.”
- [14]The defendant relies upon the obiter comment her Honour made in Mahony as selected. In my view – and in full consideration of the decision in Mahony’s case, which was a joint judgment – the case authority only supports the contentions by Mr Cooke on behalf of the plaintiff applicant, especially having regard to the judgment of Gotterson JA.
- [15]As to the correct interpretation of s 71 of the Act, a review of the other authorities referred to earlier in discussing the plaintiff’s submissions, provide a clear line of authority by which I am bound. In that regard, there are other authorities referred to in those cases which provide me with further support to follow a clear and unequivocal line of authority.
- [16]That brings me to return to the authority of McNab. I note McNab was cited in Mahony’s case. Mr Garlick could not direct me to any authority where McNab had been specifically followed or considered. In any event, that case turned on a declaration that directions to rectify work pursuant to s 72 were void. Importantly, in my view, the step in accordance with s 71 had not been taken in that case. So, Dalton J was not considering the determinative effect of a payment having been made under s 71, nor any of the cases which had concerned the construction of s 71 of the Act, until that point in time.
- [17]McNab related to the issuing of a total of 37 directions to rectify, each not being for the minimum 28 day period. Mr Garlick conceded his client had ample time to deal with a review mechanism: issue is not taken with the validity of the issuing of any notice as was the position in that case. Again, her Honour clearly stated at paragraph 18:
“My decision concerns only the directions to rectify actually given. It does not touch upon the validity of the decision of the respondent to direct rectification or, of course, the merits of that decision. My decision is only concerned with the notice of that decision, given to the applicant by way of direction pursuant to s 72(1) of the QBSA Act.
- [18]On Wednesday afternoon of this week and during the period of the reserved decision, I was provided with a printout of an email transmitted to the staff of the Chief Magistrate by the defendant respondent’s lawyer. I have considered the content of that email although, in the usual practice of Court applications, if there are to be further submissions made, they should be reduced to writing in the appropriate format of an addendum outline of argument, filed with the Court and served, to allow for a similar response. In any event, the email referred me to a recent decision of Flanagan J in Barry & Anor v Queensland Building and Construction Commission[10].
- [19]The email from Mr Garlick seems to argue this case provides support for his argument in this proceeding. It doesn’t. That case related, as did McNab’s case, to a consideration of the provisions in s 71G to s 74 of the Act, which relates to the issuing of a direction to rectify or remedy defective building work. The email submits it was “impermissible for a direction to be issued or given, due to the effluxion of time between the building work and the direction to rectify defective building work”. The email submission presupposes that the ability of the Commission to recover any payment on a claim under the insurance scheme is dependent upon a finding the direction was valid or not void. I do not interpret the Act in those terms. Flanagan J was not called on to consider that point. Certainly, he did not make that finding.
- [20]The applicant’s solicitors have drawn my attention, (as I had noticed by that time in any event), in an email in response, that this issue had been definitively determined in the Lifetime Securities case. In the Court’s judgment in that case, (particularly Gotterson JA at paragraphs 32 and 33), it was determined that there was no express or implied term in the Act to say that the ability to recover on a claim in s 71 was dependent upon a direction in s 72 of the Act. I have considered Barry’s case. It has no application or relevance to the facts of this case. It involved the consideration of a different issue in another discrete although neighbouring part of the Act.
- [21]In that regard, s 71 of the Act falls within part 5, entitled The Statutory Insurance Scheme comprising s 67X to s 71AC inclusive. Although proximate to the provision the respondent relies upon, I see no interrelationship between the two provisions, as has been held in a number of cases. I had specifically asked counsel for the respondent whether Dalton J’s decision in McNab had been followed or not. He, from memory, said he was not aware. He also, in response, instead relied on McMurdo P’s obiter in Mahony.
- [22]In my view, of some particular relevance is the fact that McMurdo P was among the Court who heard and determined the appeal in Lifetime Securities; judgment was delivered on 18 July 2014. In that decision, Mahony was followed, and McNab was cited. The Honourable President agreed with Gotterson JA’s reasons for judgment. Clearly, the direct and inescapable conclusion is that her Honour did not seek to hold to any obiter comments in Mahony.
- [23]Dalton J’s decision in McNab was cited in Lifetime Securities. Gotterson JA discussed Dalton J’s decision (at paragraph 18 and following). In footnote 15 to paragraph 20 of the judgment, Gotterson JA relevantly stated as follows (emphasis added):
“In McNab, Dalton J had, in effect, held that the directions were ‘invalid or void’: at [11]. However, in Camill Constructions Pty Ltd v Queensland Building Services Authority [2013] QSC 275, judgment in which was delivered ex tempore on 21 August 2013 and after the hearing of the summary judgment application in this case, Douglas J, after referring to McNab, concluded that a direction giving a period of 28 days from the date of the notice was not of itself void. If the notice was not received by the builder on the date of the notice, for example, by facsimile, such a direction would become voidable: at [4]. The conclusion of Douglas J is, in my view, to be preferred for the reasons given by his Honour.”
Clearly, the Court did not follow Dalton J’s judgment in McNab, in the Lifetime Securities case.
- [24]In conclusion, accordingly, and whilst I appreciate the motivation for the opposition to the orders sought, having regard to the provision in s 71 of the Act and the case authorities which bind me, I have come to the conclusion the plaintiff’s case must surely succeed. It follows, having regard to r 292 UCPR and the decided cases of Coldham-Fussell & Ors v Commissioner of Taxation [11] and LCR Mining Group Pty Ltd v Ocean Tyres Pty Ltd [12] that I should grant the application for summary judgment.
- [25]It is ordered the defendant pay to the plaintiff the amount of $35,690.54 including $26,508.50 for the claim, $6509.44 interest and $2672.60 costs.
Footnotes
[1] [2013] QCA 323 (Mahony).
[2] [2013] QSC 057 (McNab).
[3] [2014] QCA 72 (Namour).
[4] [2014] QCA 161 (Lifetime Securities).
[5] [2014] QCA 172 (Watkins).
[6] (2014) QSC 138 (Ward).
[7] (2014) QDC 198 (Samimi).
[8][2002] HCA 011.
[9] [2011] QCA 58.
[10] [2015] QSC 50 (Barry).
[11] 2011] QCA 45.
[12] [2011] QCA 105.