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Allen v Contrast Constructions Pty Ltd[2025] QSC 18

Allen v Contrast Constructions Pty Ltd[2025] QSC 18

SUPREME COURT OF QUEENSLAND

CITATION:

Allen & Anor vContrast Constructions Pty Ltd [2025] QSC 18

PARTIES:

REECE JUSTIN ALLEN

(first plaintiff)

CHANTELL RENEE MARIA TAYLOR

(second plaintiff)

v

CONTRAST CONSTRUCTIONS PTY LTD 

ACN 100 835 934

(defendant)

FILE NO/S:

BS No 14319 of 2023

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

13 February 2025

DELIVERED AT:

Brisbane

HEARING DATE:

2 May 2024; further submissions filed 7 May 2024 and 28 May 2024

JUDGE:

Kelly J

ORDER:

Upon the undertaking of the defendant, should any claims which are a subject of the statement of claim in this proceeding be raised by the plaintiffs in or by way of counter application to the Queensland Civil and Administrative Tribunal proceeding BDL219-19, not to plead or take any limitations defence in response to any such claims,

  1. 1. This proceeding is stayed pending the determination of the Queensland Civil and Administrative Tribunal proceeding BDL219-19.
  2. 2. There shall be liberty to apply on three days’ notice.
  3. 3. I will hear the parties as to costs.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS – OTHER MATTERS – where various proceedings have been commenced in the Queensland Civil and Administrative Tribunal (QCAT) – where the defendant seeks orders setting aside or staying the proceeding as an abuse of process or, alternatively, an order transferring the proceeding to QCAT – whether the proceeding is an abuse of process because it gives rise to multiplicity of proceedings – whether it is appropriate and necessary to stay the proceeding to prevent an abuse of process involving multiplicity of proceedings – whether it would be appropriate to transfer the proceeding to QCAT where there has been no defence filed and no joinder of issue

Queensland Building and Construction Commission Act 1991 (Qld), ss 29(1), 29(2), 71(1), 77(2)

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20

Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 48

Uniform Civil Procedure Rules 1999 (Qld) rr 150(1)(f), 157(c)

Allen & Anor v Queensland Building and Construction Commission [2019] QCAT 20, cited

Allen & Taylor v Queensland Building and Construction Commission [2020] QCAT 63, cited

Allen v Queensland Building and Construction Commission [2023] QCATA 66, cited

Arthur JS Hall & Co v Simons [2002] 1 AC 615, cited

Australian Hardboards Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 201, cited

Batistatos v RTA(NSW) (2006) 226 CLR 256, cited

Burbank Australia Pty Ltd v Luzinat [2000] VSC 128, cited

Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404, cited

Henry v Henry (1996) 185 CLR 571, cited

Hunter v Chief Constable of the West Midlands Police [1982] AC 529, cited

L Grollo Darwin Management Pty Ltd v Victor Plaster Products Pty Ltd (1978) 33 FLR 170, cited

March v Metrotek Constructions Pty Ltd [2011] QDC 376, cited

McGee v Independent Assessor & Anor [2023] QCA 225, cited

Moore v Inglis (1976) 50 ALJR 589, cited

Morgan v WorkCover Corporation (2013) 118 SASR 297, cited

Reichel v Magrath (1889) 14 App Cas 665, cited

Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198, cited

Rogers v Roche (No 1) [2017] 2 Qd R 306, cited

Secretary of State for Trade and Industry v Bairstow [2004] Ch 1, cited

State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Tort Reps ¶81-423 (64,077), cited

Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd (1992) 34 FCR 287, cited

COUNSEL:

Mr R Allen (sol) appeared on his own behalf and on behalf of the second plaintiff 

M K Stunden for the defendant

SOLICITORS:

Project Legal for the plaintiffs

Cornwalls for the defendant

An application contending that this proceeding is an abuse of process 

  1. [1]
    On 17 February 2016, the applicant (“the builder”) and the respondents (“the owners”) entered a contract for the construction of a residential dwelling (“the contract”). On 29 February 2016, the builder took possession of the site and commenced work under the contract.  On 10 November 2017, at a time when the work was partially complete, the owners served a notice to show cause on the builder (“the show cause notice”). 
  2. [2]
    The owners issued the show cause notice under clause 39.2 of the general conditions of the contract, which provided:
  1. “39.2 Contractor’s Default

If the Contractor commits a substantial breach of the Contract, the Principal may, by hand or by certified post, give the Contractor a written notice to show cause.

Substantial breaches include, but are not limited to:

  1. (a)
    failing to:
  1. ()
    provide security;
  2. ()
    provide evidence of insurance;
  3. ()
    comply with a direction of the Superintendent pursuant to subclause 29.3; or
  4. ()
    use the materials or standards of work required by the Contractor;
  1. (b)
    wrongful suspension of work;
  2. (c)
    substantial departure from a construction program without reasonable cause or the Superintendent’s approval;
  3. (d)
    where there is no construction program, failing to proceed with expedition and without delay; and
  4. (e)
    in respect of clause 38 knowingly providing documentary evidence containing an untrue statement.”
  1. [3]
    A notice under clause 39.2 was required, inter alia, to state the alleged substantial breach and that the contractor was required to show cause in writing why the principal should not exercise a right referred to in clause 39.4.
  2. [4]
    Clause 39.4 provided:
  1. “39.4Principal’s Rights

If the Contractor fails to show reasonable cause by the stated date and time, the Principal may by written notice to the Contractor:

  1. (a)
    take out of the Contractor’s hands the whole or part of the work remaining to be completed and suspend payment until it becomes due and payable pursuant to subclause 39.6; or
  2. (b)
    terminate the contract.”
  1. [5]
    On 21 November 2017, the builder responded to the show cause notice. On the same day, after having received the builder’s response, the owners purported to terminate the contract.  On 1 December 2017, the builder asserted that the owner’s purported termination was a repudiation of the contract, which the builder purported to accept and rely upon in terminating the contract.
  2. [6]
    Various proceedings have since started, and been conducted to differing extents, in the Queensland Civil and Administrative Tribunal (“QCAT”), the Court of Appeal and the trial division of this Court. 
  3. [7]
    By the current application, the builder seeks orders setting aside or staying this proceeding, or striking out the statement of claim, as an abuse of process or, alternatively, an order transferring this proceeding to QCAT. 

An overview of the proceedings in the aftermath of the contract 

  1. [8]
    On 5 December 2017, the plaintiffs made a claim against the Queensland Building and Construction Commission (“the QBCC”) under an insurance scheme established under Part 5 of the QBCC Act. The insurance scheme countenanced the recovery of loss suffered by the owners where the builder did not complete the contract but only if the owners had properly terminated the contract at the default of the builder.[1] Relevantly, the QBCC’s liability to pay under the policy for incomplete work arose in circumstances where the contract had been “properly terminated”. The expression “properly terminated” was relevantly defined by the policy to mean “lawfully under the contract or otherwise at law upon the contractor’s default”. 

On 19 March 2018, the QBCC (by one of its assessment officers) rejected the owners’ insurance claim (“the QBCC decision”).  Relevantly, the QBCC decision noted that the owners’ claim had been “assessed” in the context of the policy condition which required that “the homeowner demonstrates the contract had been properly terminated at the default of the licensed contractor”. The QBCC decision then materially stated: 

“In this case, the QBCC is of the opinion that there is insufficient basis for the owners to have given notice of termination under clause 39.4 of the contract. Furthermore, [the] QBCC is unable to identify evidence on which to show any appropriate basis for the contract to have been terminated at law”.

  1. [9]
    The QBCC decision concluded that “for the reasons outlined above”, the owners’ claim was “declined in full”. 
  2. [10]
    On 11 April 2018, the owners applied to QCAT to review the QBCC decision (“the QCAT Review proceeding”). The respondent was the QBCC. The owners’ application materially provided:

“State briefly why you think the decision is wrong or not properly made.

The QBCC has denied the [owners] indemnity for … claims lodged pursuant to the QBCC Home Warranty Insurance Policy ….

The QBCC has denied indemnity for the following reasons:

  • The QBCC is of the opinion that there is insufficient basis for the owners to have given notice of termination under clause 39.4 of [the] contract.
  • The QBCC is unable to identify evidence on which to show any appropriate basis for the contract to have been terminated at law.

The decision of the QBCC is wrong and is not properly made in accordance with the Policy and the QBCC Act. [The contract] … was lawfully terminated by the [owners] on 21 November 2017 and was properly terminated as that term is defined in … the Policy. The [owners] are entitled to indemnity under the Policy.

Briefly describe any other facts you think are important.

The [owners] will provide the evidence of the facts applicable to their application pursuant to orders sought by the [owners].

Briefly describe what you want to happen.

…

The [owners] seek the following relief:

“The decision of the [QBCC] … be substituted with the following decision:

“[The owners’] claim for indemnity … be accepted on the basis that [the owners] properly terminated [the contract] on 21 November 2017.”

  1. [12]
    On 17 January 2019, a member of QCAT refused an application by the QBCC to join the builder to the QCAT review proceeding (“the QCAT joinder decision”). That application was made and heard on the papers at a time when the QCAT review proceeding was “for all intents and purposes ready to be listed for hearing”.[2] The QBCC made the application on the basis that the interests of the builder might be affected by the QCAT review proceeding because, if the owners were successful and recovered  payment by way of indemnity under the insurance scheme, the QBCC might recover that payment from the builder pursuant to s 71(1) of the Queensland Building and Construction Commission Act 1991 (Qld) (“the QBCC Act”). That the builder’s interests might be affected by the outcome of the QCAT review proceeding, was accepted by the QCAT member as being “undoubtedly the case”.[3] Nevertheless, the QCAT member refused the joinder because the application was made late, in circumstances where no explanation had been provided for the delay.[4] Relevantly, the QCAT member observed that the owners had, by that time, filed voluminous statements and had expended considerable effort and costs and should not be required to incur additional costs and delays “as a result of the excessive and unexplained delay by the QBCC relating to the joinder application”.[5] The QCAT review proceeding went forward to a final hearing without the builder being joined as a party.
  2. [13]
    Another QCAT member, Mr Oliver, heard the QCAT review proceeding. 
  3. [14]
    The hearing was conducted under s 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”) which required Mr Oliver to produce the correct and preferable decision by way of a fresh hearing on the merits. 
  4. [15]
    The hearing of the QCAT review proceeding commenced on 27 May 2019 and appears to have continued in August 2019. The hearing before Mr Oliver lasted some three days. The builder’s sole director, Mr Durkin, provided two written statements, was called as a witness by the QBCC and was crossexamined for approximately one and a half days by one of the owners, Mr Allen. 
  5. [16]
    Before Mr Oliver, the owners contended that they had lawfully and properly terminated the contract relying upon the show cause procedure.    They also contended that, after they took possession of the site, they had found further evidence of defective building work which constituted substantial breaches.  The owners relied upon these alleged further substantial breaches to justify their termination of the contract at law.  Notably, clause 39.1 of the general conditions preserved common law rights.  Hence, before Mr Oliver, there was an issue concerned with whether the builder’s response to the show cause notice had given the owners an entitlement under clause 39 to terminate.  There was also an issue as to whether the discovery of the further alleged substantial breaches entitled the owners to rely upon those breaches to justify their election to terminate.  
  1. [17]
    On 27 February 2020, Mr Oliver delivered his decision and reasons.  
  2. [18]
    Mr Oliver found that by 10 November 2017, the date of the show cause notice, the work under the contract was about 70 per cent complete.  By that time, the relationship between the owners and the builder had significantly deteriorated. Mr Oliver found that the builder’s response to the show cause notice was reasonable and satisfactory.[6]  Mr Oliver expressed this conclusion in relation to the show cause notice:[7]

“When looked at objectively, … each of the responses to the notice addressed the [owners’] concerns.  The responses were not so inadequate that they gave rise to a right to terminate the contract.  In so far as it might be said that they are breaches, the breaches were not … substantial breaches within the meaning of clause 39 of the contract.”

  1. [19]
    Mr Oliver considered the owners’ allegations as to the later discovered substantial breaches and was not satisfied that, individually or collectively, any of those matters constituted a substantial breach that gave rise to a right of termination.  Mr Oliver relevantly concluded:[8]

“What is critical to a consideration of each of those items is that the works were only 70% complete and further work was to be done to bring the works to practical completion.  To go onsite in a partially constructed building and pick selective items which would normally be attended to during completion of the works and contend that they are substantial defects is particularly unfair to the [builder], where in every case, there is an explanation as to why the works are in the state that they are in, in particular the selected items identified by the [owners], and also in circumstances where the [builder] was ready, willing and able to complete the building project.”

  1. [20]
    Relying upon his various findings, Mr Oliver affirmed the QBCC decision. 
  2. [21]
    The owners then sought to appeal Mr Oliver’s decision to QCAT’s Appeal Tribunal (“the appeal from QCAT’s review decision”).  The owners were entitled to appeal to QCAT’s Appeal Tribunal on a question of law but required leave to appeal on a question of fact or of mixed fact and law.  The owners sought to rely on additional evidence in the appeal, namely two additional reports from an expert and a further affidavit of Mr Allen.  The judicial member who constituted the QCAT Appeal Tribunal was Mr McGill SC. The hearing before Mr McGill SC occurred on 17 December 2021. Mr McGill SC did not admit the expert reports but allowed the admission of Mr Allen’s evidence as to what had been discovered in October 2020, after a demolition of a driveway on an adjacent property.  Before Mr McGill SC, the owners contended for failures to accord natural justice and apprehended bias and alleged 79 errors of law and 43 errors of fact.   
  3. [22]
    On 15 June 2023, Mr McGill SC made orders and delivered his reasons. Mr McGill SC relevantly found that there was no reason to interfere with Mr Oliver’s conclusion that the owners had not validly terminated the contract. Mr McGill SC found that the alleged breaches of natural justice and apparent bias had not been established.[9]  Mr McGill SC found that the owners had failed to show that Mr Oliver made any error of law.[10]  One alleged error of law had involved the contention that Mr Oliver had failed to consider that the owners were entitled to terminate for illegality by the builder.  Mr McGill SC found that the case presented by the owners to Mr Oliver was not capable, as a matter of law, of sustaining an entitlement to terminate the contract on the ground of illegality.[11]
  4. [23]
    Mr McGill SC allowed leave to appeal only on the question of whether, taking into account the encroachment over the side boundary of the concrete, the owners were entitled to and did terminate the contract at common law for either repudiation or sufficiently serious breaches of non-essential terms.[12] In relation to that ground, Mr McGill SC relevantly reasoned as follows:[13]

“ … the only significant defects were the encroachment onto the neighbouring land, the absence of back blocking in parts of the plaster ceilings, and to a lesser extent water penetration through inadequately sealed windows. There were some additional minor matters, but on the whole they do not show either a refusal, or an inability, to perform the contract other than in a manner substantially inconsistent with its terms….  in my opinion the behaviour of the builder in the present case has not been shown to have amounted to repudiation of the contract, so as to give rise to an entitlement to terminate on that basis at common law.

As for the alternative ground … I do not consider that the breaches of contract which have been demonstrated, taken together, amount to a sufficiently serious set of breaches of non-essential terms to entitle the appellants to terminate on that basis at common law, since they did not deprive the appellants of a substantial part of the benefit which they were entitled to under the contract. I consider that damages were an adequate remedy for such breaches as have been proved by the appellants. It follows that, on this basis as well, the appellants were not entitled to terminate the building contract at common law.”

  1. [24]
    Otherwise, as to the various errors of fact or mixed law and fact, Mr McGill SC found that the owners had not established that there was a sufficient likelihood that any finding of fact, which was of importance in the final outcome before Mr Oliver, would be overturned in the event of a rehearing.[14]
  2. [25]
    Ultimately, Mr McGill SC expressed the following conclusion:[15]

“There is therefore no reason to interfere with the conclusion of the Member, that the appellants had not validly terminated the contract with the builder, and accordingly the decision of the respondent to reject their claim under the insurance policy was correct.”

  1. [26]
    Mr McGill SC made the following material orders in the appeal from QCAT’s review decision: 
  1. “1.So far as the appeal was on questions of law, the appeal is dismissed.
  • Leave to appeal on questions of fact or mixed fact and law granted, limited to the issues of whether the appellants were in the circumstances entitled to terminate the building contract at common law for repudiation or for sufficiently serious breaches of non-essential terms; otherwise leave to appeal refused.
  • Appeal by leave dismissed”.
  1. [27]
    On 1 March 2024, the Court of Appeal dismissed an application for leave to appeal the decision of Mr McGill SC.
  2. [28]
    On 19 August 2019, at a time when the QCAT review proceeding remained on foot, the builder filed an application in QCAT against the owners (“the builder’s proceeding”). The owners filed a conditional response and an interlocutory application contesting QCAT’s jurisdiction on the ground that the builder had not complied with s 77(2) of the QBCC Act. That section provides to the effect that a person involved in a building dispute may not apply to QCAT to have the Tribunal decide the dispute unless the person has complied with a process established by the QBCC to attempt to resolve the dispute.  In their interlocutory application, the owners sought orders dismissing the builder’s proceeding or alternatively staying the proceeding pending compliance with dispute resolution clauses contained in clause 42 of the general conditions of the contract (as amended by special condition 13 of the contract). 
  3. [29]
    On 21 May 2020, a member of QCAT decided that QCAT had jurisdiction in the builder’s proceeding and refused to dismiss or stay the proceeding (“the jurisdiction decision”). The owners sought leave to appeal the jurisdiction decision (“the jurisdiction appeal”) and a stay pending the hearing of any appeal.  On 16 September 2020, the Appeal Tribunal refused the application for a stay.  On 15 April 2021, the Appeal Tribunal granted leave to appeal and dismissed the jurisdiction appeal.
  4. [30]
    On 23 August 2022, at a time when Mr McGill’s decision was reserved, the builder filed its statement of claim in the builder’s proceeding. On 7 March 2023, the owners’ response was filed. On 12 July 2023, the builder’s reply was filed. 
  5. [31]
    The builder’s statement of claim makes the following material allegations about the termination of the contract.  
  1. “153.On or about 10 November 2017, the Respondents purported to give the Applicant a written notice to show cause under clause 39 of the Contract.
  • On or about 21 November 2017, the Applicant responded in writing to the Respondents alleged notice to show cause.

…

  • On or about 21 November 2017, the Respondents purported to terminate the Contract by written notice to the Applicant alleging that the Applicant had failed to show reasonable cause [the Wrongful Termination].

…

  • The Respondents’ purported termination was unlawful, unrighteous, or otherwise not validly exercised under the Contract by reason that:
  1. ()
    the Applicant was not, at any material time, in substantial breach of the Contract;
  2. ()
    prior to the Respondents issuing the aforesaid notice to show cause or the Wrongful Termination of the Respondents were in substantial breach of the Contract.

Particulars

  1. (i)
    The Respondents failed to ensure that the Superintendent fulfilled all aspects of the role and functions of the Superintendent reasonably and in good faith in breach of clause 20 of the General Conditions.
  • By either, the giving of the Wrongful termination, by refusing to give the Applicant access to the Property to carry out the Works after 21 November 2017 or failing to pay the applicant Progress Claim 15, the Respondents were in substantial breach of the Contract or evidenced an intention to be unwilling to perform their obligations under the Contract or otherwise not be bound by the Contract [the Repudiation].
  • On or about 1 December 2017, the Applicant notified the Respondents in writing, inter alia, that:
  1. ()
    the Applicant was not in substantial breach of the Contract;
  2. ()
    the Respondents were in substantial breach of the Contract at the time they elected to wrongfully terminate the Contract;
  3. ()
    the Applicant accepted the Repudiation by the Respondents and elected to terminate the Contract.
  1. 159. In the premises, the Applicant righteously or validly terminated the Contract on or about 1 December 2017 [the Termination].

Further or in the alternative:

  1. 160. In or about late 2017 or early 2018, the Respondents made a claim to the Queensland Building and Construction Commission [the Commission] for indemnity under the Home Warranty Insurance Scheme for defective and incomplete work under the Contract.
  2. 161. On or about 19 March 2018, the commission made a decision, inter alia:
  1. ()
    Disallowing a claim under the statutory Home Warranty Scheme.
  2. ()
    That the Respondents had not validly terminated the contract by the Wrongful Termination.
  1. 162. The Respondents applied to the Queensland Civil and Administrative Tribunal to review the Commission’s decision.
  2. 163. The Queensland Civil and Administration Tribunal:
  1. ()
    Determined that:
  1. ()
    The Respondents did not have a right to terminate the Contract by the Wrongful Termination.
  2. ()
    The Applicant had not acted in any way which constituted repudiatory conduct sufficient to entitle the Respondents to terminate the contract.
  3. ()
    The Applicant was not in substantial breach of the Contract at the time of issuing the purported notice to show cause nor at the Wrongful Termination.
  1. (b)
    Affirmed the decision of the Commission dated 19 March 2018 that, inter alia, the Respondents’ Wrongful Termination was not proper and lawful.

Particulars

  1. (i)
    Allen & Taylor v Queensland Building and Construction Commission [2020 QCAT 63 determined on 27 February 2020.
  1. 164. In the premises, the Respondents are estopped from denying that the Respondents did not have a right to terminate the Contract by the Wrongful Termination or otherwise at law in around November 2017.”
  1. [32]
    The owners have responded to those allegations by contending that they validly terminated the contract both under the contract and at law and denying that any estoppel has arisen because the QCAT review proceeding involved only the QBCC and the respondent. The owners have positively alleged in the builder’s proceeding that they lawfully terminated the contract. Notably, in its responsive pleading, the builder has not replied to the effect that for the owners to now raise such an allegation involves an abuse of process. 
  2. [33]
    The builder’s statement of claim also includes various claims for extensions of time, an adjustment to the date for practical completion and liquidated damages. The builder intends to seek leave to amend its statement of claim. The proposed amended statement of claim is in evidence and materially deletes any allegation to the effect that the owners are estopped from alleging that they had a right to terminate the contract.  
  3. [34]
    On 21 November 2023, the owners served on the builder the originating process in this proceeding.  
  4. [35]
    In this proceeding, the owners, inter alia, allege that their purported termination of the contract was lawful, both under the contract and at law.  The owners seek to claim remedies and rights by reference to their lawful termination of the contract.[16] Relevantly, the owners seek the following relief against the builder:
  1. ()
    $23,927.00 as a liquidated sum;
  2. ()
    $488,440.47 as a liquidated sum or as damages for breach of contract for fraud and fraudulent concealment of defects (deceit) or further and alternatively restitution;
  3. ()
    damages for breach of contract in the amount of $80,001.24 for noncompletion;
  4. ()
    alternatively, damages for breach of contract in the amount of $568,441.43 for non-completion;
  5. ()
    damages for breach of contract for the cost of alternative accommodation in the amount of $159,599.91;
  6. ()
    liquidated damages for delay in the amount of $6,300.00;
  7. ()
    unspecified damages for breach of contract in tort or deceit for defects or non-completion;
  8. ()
    interest and pre-judgment interest; (i)costs.
  1. [36]
    On 14 December 2023, the builder filed in this proceeding a conditional notice of intention to defend and the current application.

Is this proceeding an abuse of process?

  1. [37]
    In Batistatos v RTA (NSW),[17] the plurality said:

“What amounts to abuse of court process is insusceptible of a formulation comprising closed categories. Development continues.”

  1. [38]
    The arguments in this case centred upon two recognised categories of abuse of process which may conveniently be labelled “re-litigation abuse” and “multiplicity of proceedings abuse”.

Re-litigation abuse: relevant principles

  1. [39]
    The principle favouring finality and certainty of judgments underlies relitigation abuse of process in civil litigation.[18] In McGee v Independent Assessor & Anor,[19] Cooper J (with whom Bond and Dalton JJA agreed) observed that raising an issue which was made or raised and determined in an earlier proceeding may constitute an abuse of process even where the earlier proceeding has not given rise to an estoppel. It can be an abuse for a party to seek to raise an issue, even though the party was not a party to the earlier proceeding, nor the privy of a party to that proceeding.[20]
  2. [40]
    In Rogers v Roche,[21] Fraser JA was careful to observe that finality and certainty considerations may not have “equal force in all cases as a factor in the decision whether re-litigation is an abuse of process”.[22] Fraser JA referred with approval to Morgan v WorkCover Corporation,[23] where Blue J, with whom Kourakis CJ and Sulan J agreed, observed:

“The mere fact that the person against whom the abuse is alleged was a party in both proceedings and seeks to litigate an issue decided in the earlier proceedings is not sufficient to give rise to abuse of process. Something more is required.”

  1. [41]
    In Rogers, Fraser JA referred to Reichel v Magrath[24] as the seminal case about re-litigation abuse of process in the context of civil litigation. In that case, Reichel had taken proceedings against the Bishop of Oxford for a declaration that he was still the vicar of a benefice and that an instrument of resignation was null and void. He lost at first instance and his two appeals were dismissed. In a second proceeding, Magrath claimed to be the incumbent of the benefice, having been appointed to fill the vacancy caused by Reichel’s resignation. Reichel was refusing to vacate the parsonage houses and glebe lands. Magrath sought declarations and injunctions to evict Reichel. By way of defence, Reichel sought to set up the case which had been rejected in his action against the Bishop. Despite not having been a party to the earlier proceeding, Magrath successfully had Reichel’s defence struck out as an abuse of process. On appeal to the House of Lords, Lord Halsbury LC relevantly said:[25]

“…it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again. It cannot be denied that the only ground upon which Mr Reichel can resist the claim by Mr Magrath to occupy the vicarage is that he (Mr Reichel) is still vicar of Sparsholt. If by the hypothesis he is not vicar of Sparsholt and his appeal absolutely fails, it surely must be in the jurisdiction of the Court of Justice to prevent the defeated litigant raising the very same question which the Court has decided in a separate action. I believe there must be an inherent jurisdiction in every Court of Justice to prevent such an abuse of its procedure and I therefore think that this appeal must likewise be dismissed”.

  1. [42]
    In Hunter v Chief Constable of the West Midlands Police,[26] the plaintiffs had been arrested on suspicion of having caused explosions in a Birmingham pub. Whilst on remand, they signed statements admitting the charges. There was an issue as to whether the statements had been procured by violence and threats. A judge decided on a voir dire that the statements were voluntary. During their criminal trial, the accused repeated their allegations as to the involuntariness of their statements and the trial judge gave directions to the jury. The accused were found guilty. The police officers alleged to have been responsible for the alleged assaults were charged but acquitted. Some years later the plaintiffs commenced civil proceedings against the chief constables of the West Midlands and the Lancashire police and also against the Home Office for damages for assault and personal injuries relying upon the same assaults they had alleged for the purpose of claiming that their statements were involuntary. On appeal to the House of Lords, Lord Diplock considered that the case exemplified an abuse of process because the proceedings had the purpose of mounting a collateral attack upon a final decision made by another court of competent jurisdiction in previous proceedings in which the plaintiffs had a full opportunity of contesting the decision.
  2. [43]
    Notably, Hunter did not decide that the initiation of proceedings collaterally challenging an earlier judgment is necessarily an abuse of process, only that it might be.[27] It is necessary to always consider the nature and effect of the earlier judgment, the nature and basis of the claim made in the later proceedings and any grounds relied on to justify the collateral challenge.[28] In Haines v Australian Broadcasting Corporation,[29] Hunt CJ at CL recognised that there were “obviously limitations to striking out pleadings or causes of action as an abuse of process upon the basis stated in [Reichel]”. His Honour identified one such limitation as follows:

“The issue determined in the earlier case which is sought to be litigated in the later case must be one which the party propounding it in the latter lost in the former.  … … As most of the cases have emphasised, all the circumstances of the determination in the earlier case may be considered, and there can be no definitive statement of the circumstances which will inevitably lead to a finding of abuse of process.”

  1. [44]
    The following summary of relevant settled propositions was provided by Sir Andrew Morritt V-C in Secretary of State for Trade and Industry v Bairstow:[30]

“In my view [the cases] establish the following propositions … A collateral attack on an earlier decision of a court of competent jurisdiction may be but is not necessarily an abuse of the process of the court. … If the parties to the later civil proceedings were not parties to or privies of those who were parties to the earlier proceedings, then it will only be an abuse of the process of the court to challenge the factual findings and conclusions of the judge or jury in the earlier action if … it would be manifestly unfair to a party to the later proceedings that the same issues should be relitigated or … to permit such relitigation would bring the administration of justice into disrepute.”[31]

  1. [45]
    In an often cited judgment in State Bank of New South Wales Ltd v Stenhouse Ltd,[32] Giles CJ Comm Div recognised guiding considerations for an inquiry as to re-litigation abuse as being oppression and unfairness and concern for the integrity of the system of the administration of justice. His Honour listed relevant matters as including the importance of the issue in and to the earlier proceedings, the opportunity available and taken to fully litigate the issue, the terms and finality of any finding as to the issue, the identity between the issues in the two proceedings, the extent of the oppression and unfairness to the other party if the issue is re-litigated, the impact of re-litigation upon the principle of finality of judicial determination and public confidence in the administration of justice and an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.[33]

Multiplicity of proceedings abuse: relevant principles 

  1. [46]
    In Batistatos,[34] the plurality referenced “the line of authority dealing with the stay of proceedings instituted in a second forum where there are pending proceedings in another forum and the continuance of the second proceedings would be an abuse of the process of the first forum.” The High Court has said, as a general proposition, that it is “prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the courts of this country if an action is already pending with respect to the matter in issue”.[35] In Burbank Australia Pty Ltd v Luzinat,[36] Beach J relevantly observed:

“Where a party to a proceeding institutes a second proceeding in a different form in relation to the same subject matter as the first proceeding, prima facie the second proceeding is vexatious and will be stayed … In such a situation the courts have for many years taken the view that a litigant already deeply involved in one piece of litigation would be unduly harassed if a second piece of litigation was to proceed at the same time as the first. And such a principle applies to proceedings whether they be before a court, a board or a tribunal”.[37]

  1. [47]
    Where there are multiple proceedings, the factors relevant to the exercise of the discretion to grant a stay will always be fact specific. The general principle draws upon Moore v Inglis[38] where a plaintiff had commenced two court proceedings, one in the High Court and one in a Supreme Court. That circumstance led Mason J to consider whether there could be discerned a legitimate reason “for allowing the plaintiff to maintain a second proceeding in this Court relating to the subject matter already in course of litigation in the Supreme Court”.[39]
  2. [48]
    An example of multiplicity abuse can be seen in L Grollo Darwin Management Pty Ltd v Victor Plaster Products Pty Ltd.[40] In that case an action was commenced in the Supreme Court of the Northern Territory against a party who later commenced an action in the Federal Court. A judge of the Federal Court stayed the Federal Court proceeding and an appeal from that decision was unsuccessful. The Full Court of the Federal Court relevantly observed:[41]

“As matters stood therefore there was a duplicity of proceedings in relation to the question whether the goods in question were supplied to the first appellant. In these circumstances a discretion arose in the learned judge to decide whether it was in the interests of justice that one of the actions should proceed before the other and if he considered that the action in the Northern Territory should proceed before the action in this Court and that a stay of this action was appropriate for that purpose, then he had jurisdiction so to order.”

  1. [49]
    In Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd,[42] Lockhart J observed that the law should “strive against permitting multiplicity of proceedings in relation to similar issues”.[43] His Honour identified relevant considerations as including which proceeding was commenced first, whether the termination of one proceeding is likely to have a material effect on the other, the public interest, the undesirability of two courts competing to see which of them determines common facts first, the circumstances relating to witnesses, whether the preparatory work done to prepare a proceeding might be wasted, how far advanced the proceedings are in each court and balancing the advantages and disadvantages to each party. Another important consideration is the risk of inconsistent findings posed by multiple proceedings concerning the same subject matter.[44]

This proceeding is an abuse of process

  1. [50]
    I will deal firstly with the question as to whether this proceeding is an abuse of process because it involves the re-litigation of an issue already decided in the QCAT review proceeding and in the appeal from QCAT’s review decision.[45] The builder orally submitted that the issue as to the lawfulness of the owners’ purported termination of the contract on 21 November 2017 was “the precise issue which was decided adversely against [the owners] both in front of [Mr Oliver] and then on appeal to [Mr McGill SC]”.  The builder further orally submitted that the owners “have had the benefit of two hearings on the identical ultimate issue in QCAT and lost”.  
  1. [51]
    I am not satisfied that it is an abuse of process for the owners, in the builder’s proceeding or in this proceeding, to place into issue the lawfulness of their purported termination of the contract on 21 November 2017. The mere fact that the owners were parties to the QCAT review proceeding and the appeal from QCAT’s review decision and now seek to litigate an issue decided against them in those proceedings, is not sufficient to give rise to an abuse of process. In deciding whether an instance of re-litigation abuse has arisen, it is necessary to consider the nature and effect of the earlier decisions, the nature and basis of the claim made in this proceeding and whether there is a justification for what may be perceived as a collateral challenge to the earlier determinations of the issue. 
  1. [52]
    The context in which the QCAT review proceeding was heard and determined may be outlined as follows. A QBCC assessment officer assessed and rejected the owners’ claim to indemnity under an insurance policy. In undertaking the assessment, the assessment officer formed an opinion to the effect that there was an insufficient basis for the owners to have terminated the contract pursuant to clause 39.4 of the general conditions. Further, the assessment officer had been “unable to identify evidence on which to show any appropriate basis for the contract to have been terminated at law”. The assessment officer’s decision was to decline indemnity to the owners under the policy of insurance. The QCAT review proceeding was fundamentally concerned with whether the assessment officer’s decision to decline indemnity represented the correct and preferable decision. The decision was reviewed by QCAT, without the builder participating in the QCAT review proceeding as a party. The builder, although recognised as being someone whose interests would be affected by the decision in the QCAT review proceeding, was not joined as a party to that proceeding for procedural reasons which favoured the interests of the owners. The extent of the builder’s involvement in the QCAT review proceeding was the giving of evidence by its director. 
  2. [53]
    In the builder’s proceeding, and in this proceeding, the owners seek to defend, or claim, relief in the form of contractual remedies based on contractual rights and entitlements arising under the contract. In each of these proceedings, the determination of contractual rights and entitlements is to occur in an adversarial context involving the parties to the contract. In the builder’s proceeding, the owners are sought to be made liable for damages. In this proceeding, the builder is sought to be made liable for damages.  Confronted with a substantial claim for damages against them, it would be unfair to confine the owners’ defence of such a claim to findings and determinations made in review proceedings concerned with an opinion formed by an assessment officer of QBCC and made in circumstances where the owners had sought indemnity under a policy of insurance and were not being confronted with allegations as to their liability for damages under the contract.  
  3. [54]
    Some further material aspects of the builder’s proceeding should be noted. First, in the builder’s proceeding, the builder itself has placed into issue the lawfulness of its termination of the contract. Mr Durkin’s affidavit correctly described “the issue of who terminated the [c]ontract” as being “in issue in” the builder’s proceeding.[46] That issue is intertwined with the lawfulness of the owners’ purported termination of the contract on 21 November 2017, which is asserted by the builder to have been repudiatory conduct which it accepted. Secondly, the builder’s pleadings in the builder’s proceeding have not asserted any abuse of process arising out of the re-litigation of the issue concerned with the lawfulness of the owner’s purported termination of the contract. In that regard, the builder’s submissions notably conceded that, in a hypothetical context, had the QCAT review proceeding determined that the correct and preferable decision was that the owners were entitled to indemnity because they had lawfully terminated the contract, it would not have been an abuse of process for the builder to place into issue the lawfulness of the owners’ termination in any subsequent litigation between the owners and the builder involving their respective rights under the contact. 
  4. [55]
    The context of the decision in the QCAT review proceeding and the identified aspects of the builder’s proceeding warrant the conclusion that there is no manifest unfairness to the builder in allowing the re-litigation of the issue as to the lawfulness of the owners’ termination of the contract. Further, having regard to all of the matters, there is no affront to the administration of justice, and the overall balancing of justice does not warrant a finding that it is an abuse of process, for the owners to place into issue the lawfulness of their termination of the contract in litigation between the builder and the owners involving their respective rights and liabilities under the contract. 
  5. [56]
    I will now deal with the question as to whether this proceeding is an abuse of process because it gives rise to multiplicity of proceedings.[47] It may be accepted that the power to stay on the ground of abuse of process is a power to be exercised with caution.[48] Having regard to the matters I have outlined below, I am satisfied that it is appropriate and necessary to temporarily stay this proceeding to prevent an abuse of process involving multiplicity of proceedings. 
  6. [57]
    In the builder’s proceeding, the builder claims damages for delay.  The builder alleges that the adjusted date for practical completion is 26 February 2018 and the amount of the claimed damages for delay is $253,354.86. The builder claims a quantum meruit in the amount of $211,565.54 and claims in debt or as damages the amount of progress claim 15, being $131,388.51. There is a further claim for damages or in restitution in respect of an alleged failure to return cash retention. The owners’ responsive pleading filed 7 March 2023 is detailed. It is apparent from the response that, notwithstanding the outcome of the jurisdiction decision and the jurisdiction appeal, the owners seek to maintain their objection to jurisdiction.[49] Beyond that objection, the owners’ response has pleaded positive cases in defence of the builder’s various claims. By reason of the owners’ responsive pleading, there has been a joinder of issue in respect of when, and by whom, the contract was lawfully terminated. The builder alleges that it lawfully terminated the contract on 1 December 2017. The owners allege that they lawfully terminated the contract on 21 November 2017. They further allege that as at the date of their termination of the contract, the builder had not acquired any unconditional right to payment in respect of progress claim 15.   The owners positively contend that the “proper date for practical completion” under the contract is 9 October 2017. The owners have  pleaded numerous factual allegations in defence of the builder’s claimed extensions of time.   
  7. [58]
    In this proceeding, as the builder has not yet filed a defence, there has been no joinder of issue. In terms of the allegations made by the owners in this proceeding, the owners allege that they lawfully terminated the contract on 21 November 2017 and that the termination gave rise to certain entitlements on their part, including the return of part of the deposit in the amount of $23,927.00, damages for the additional cost of completing the residence to 22 March 2020 in the amount of $568,441.43, further yet to be quantified damages to complete the residence to final completion and damages for the costs of the owners having to find alternative accommodation in the amount of $159,599.91. The owners have also claimed liquidated damages for delay in the amount of $6,300 and allege that the date for practical completion is 9 October 2017. The owners make a series of allegations about a variety of work having been performed in breach of the contract and statutory warranties. Those claims are advanced “in contract, tort or deceit”. The statement of claim includes allegations to the effect that the builder fraudulently concealed defects and is required to pay damages or make restitution to the owners in the amount of $488,440.47.
  8. [59]
    Having regard to that overview of the issues joined in the builder’s proceeding and the allegations made in this proceeding, it is patently clear that the proceedings concern the same general subject matter, namely rights and entitlements arising under the contract and involve a significant overlap of issues and allegations. The commencement of this proceeding second in time has given rise to the spectre of inconsistent findings. The commencement of this proceeding is prima facie vexatious and oppressive. 
  9. [60]
    The owners have suggested grounds for justifying their commencement of this proceeding despite the currency of the builder’s proceeding. None of these grounds provide a proper basis for commencing multiple proceedings in different courts or tribunals, burdening the builder with a new proceeding in a different court or tribunal or allowing the spectre of inconsistent findings.  
  10. [61]
    First, the owners submitted that the parties, by the contract, had agreed to refer any dispute to either QCAT or a court. In the context of that agreement, the owners submitted that they were “simply exercising their right to elect to commence proceedings in this court, an election which binds the builder”. The owners asserted that they commenced the proceeding in this court because “[the] contract says they can”. These submissions did not engage with an important matter of principle, namely that the right of a party to commence and conduct a court proceeding is subject to the procedural and substantive law administered by the court. In Batistatos, the plurality relevant said:[50]

“The ‘right’ of the plaintiff with a common law claim to institute an action is not at large. It is subject to the operation of the whole of the applicable procedural and substantive law administered by the court, whose processes are enlivened in the particular circumstances. This includes the principles respecting abuse of process.”

  1. [62]
    Earlier, the plurality had observed:[51]

“The plaintiff certainly has a ‘right’ to institute a proceeding. But the defendant also has ‘rights’. One is to plead in defence an available limitation defence. Another distinct ‘right’ is to seek the exercise of the power of the court to stay its processes in certain circumstances. On its part, the court has an obligation owed to both sides to quell their controversy according to law.”

  1. [63]
    Secondly, the owners submitted that QCAT does not have jurisdiction to hear the builder’s proceeding by reason of non-compliance with s 77 (1) and (2) of the QBCC Act. Mr Allen deposed that prior to his being served with the builder’s proceeding, no notice of dispute under clause 42.1 of the general conditions of the contract had been served and there had been no conference or participation in any process established by the QBCC in relation to the dispute. By reference to these facts, the owners objected to QCAT’s jurisdiction in the builder’s proceeding. The owners’ objection to jurisdiction has already been the subject of the jurisdiction decision and the jurisdiction appeal. Despite those decisions, the owners, by their responsive pleading, seek to maintain their objection to QCAT’s jurisdiction.[52] In that regard, the owners’ submissions referred to this court having a supervisory jurisdiction over QCAT. The owners submitted that they “always have (and maintain) their rights in the nature of certiorari in relation to jurisdictional error by QCAT”. 
  2. [64]
    Mr Allen deposed to a chronology of relevant events in the builder’s proceeding.[53] That chronology reveals that, following the dismissal of the jurisdiction appeal on 15 April 2021, the owners have not applied for leave to appeal that decision but rather have been content to plead, in their response to the builder’s statement of claim, that QCAT lacks jurisdiction. The owners have not started a proceeding in this court seeking relief in the nature of certiorari. In the result, QCAT has determined that it has jurisdiction in the builder’s proceeding and that determination is not the subject of any current appeal. Ultimately, the owners submitted that there was “arguable doubt” as to the jurisdiction of QCAT in respect of the builder’s proceeding and that such “arguable doubt” was relevant as a “discretionary factor to be taken into account as to whether [this proceeding] was an abuse of process.” I reject that submission. As matters presently stand, the owners have made an unsuccessful application in QCAT objecting to jurisdiction and had an appeal from that decision dismissed. They have not sought leave to appeal or commenced any proceeding seeking relief in the nature of certiorari. In these circumstances, the decision of QCAT remains binding upon the owners and this court should not engage in speculation about whether there is “arguable doubt” as to the jurisdiction of QCAT. It is a matter for QCAT as to how it deals with that part of the owners’ responsive pleading asserting an objection to jurisdiction in the face of the jurisdiction decision and the jurisdiction appeal. 
  3. [65]
    Thirdly, the owners submitted that the builder’s prosecution of the builder’s proceeding has been “grossly dilatory”. I do not accept that description of the delay. I accept that there has been significant delay in the conduct of the builder’s proceeding since its commencement on 19 August 2019. The delay is partly explained by the builder’s conduct having been influenced by other events. The conduct of the builder’s proceeding has involved an unsuccessful interlocutory application made by the owners objecting to jurisdiction and a subsequent appeal from that decision. The jurisdiction objection took some 12 months to resolve. Mr Allen’s affidavit implicitly acknowledged that the builder’s prosecution of the builder’s proceeding had been impaired until such time as the builder had successfully opposed the owners’ application for a stay.[54]
  4. [66]
    Further, as at the time of the commencement of the builder’s proceeding, Mr Oliver was yet to deliver his decision and reasons in the QCAT review proceeding. Mr Oliver’s decision and reasons were delivered some three months after the commencement of the builder’s proceeding. The owners then commenced an appeal from that decision which took some time to conduct and culminated in the decision from Mr McGill SC on 15 June 2023. The subsequent appeal to the Court of Appeal was dismissed. Mr Durkin deposed that he had placed the builder’s proceeding “on hold” for a period of time as he had hoped that if the QCAT review proceeding was resolved in favour of the QBCC “it would be easier” to resolve the builder’s proceeding. He was not cross examined on his affidavit and I accept that part of his evidence as reflecting his thinking and decision making. It would have been preferable for the builder to have sought case management directions from QCAT which effectively sought a temporary stay of the builder’s proceeding whilst the QCAT review proceeding or the appeal from the QCAT review decision remained unresolved. The fact that no such case management directions were obtained does not mean that the builder’s conduct was wholly unreasonable or intentionally dilatory.
  5. [67]
    Although there has been delay in the builder’s proceeding, the point has been reached where an interlocutory application has been finally resolved, the builder and owners have exchanged pleadings, the builder proposes to seek leave to amend in identified terms and the builder’s evidence is in the process of being prepared. At this stage, the builder’s witnesses have been identified as Mr Durkin and Mr Andrew King, a quantity surveyor. I find that the builder’s proceeding, which was commenced first in time, has, unlike this proceeding, progressed to a stage where it is well advanced and it is realistic to expect that the builder’s proceeding will be ready for final hearing before this proceeding. 
  6. [68]
    Fourthly, the owners made various submissions criticising QCAT for denying them procedural fairness, failing to take “fair and appropriate steps” and “proper steps as case management”. Reference was made to the conduct of another QCAT proceeding commenced by the owners against the QBCC on 4 May 2018 in which the owners sought review of another decision made by the QBCC in relation to a non-completion claim under the insurance scheme. With reference to that proceeding, it was submitted that QCAT had “a long history of delaying any relief sought by [the owners]” and the owners believed that QCAT would not conduct the builder’s proceeding “fairly, equally and with appropriate quickness”. The QCAT proceeding which was commenced on 4 May 2018 had been discontinued by the owners on 20 July 2023. As to that discontinuance, Mr Allen deposed that one of the reasons for their discontinuance was that “the delay, including by QCAT itself, made the administrative proceedings redundant because we had decided we had to bring a claim for damages in this Court”.  There were further submissions directed towards QCAT apparently lacking “resources to decide even simple matters quickly”. These submissions were not balanced, argumentative and advanced by the owners in a context in which they had filed no application in this court seeking any kind of relief in respect of the builder’s proceeding and no application in the builder’s proceeding seeking a stay of that proceeding on grounds other than the jurisdictional ground the subject of the jurisdiction decision. I reject these submissions. The submissions failed to acknowledge that the owners have on the face of the record contributed to delays in QCAT by conducting an unsuccessful interlocutory application in the builder’s proceeding. QCAT has not “delayed” the owners’ relief in the QCAT review proceeding. Rather, the owners were found to have no entitlement to relief in the QCAT review proceeding. It may be observed that Mr Oliver found that the owners had filed in the QCAT review proceeding, a significant volume of evidence, much of which was repetitive, and submissions in reply which went far beyond a response to the QBCC’s submissions. As a result, Mr Oliver noted that it had been an onerous task to “sift through the material to try and discern the substantive issues.” The owners’ submissions also overlooked that QCAT had essentially deferred to the owners’ interests in refusing the QBCC’s application to join the builder to the QCAT review proceeding. 
  1. [69]
    Fifthly, the owners advanced submissions which emphasised procedural differences between a proceeding conducted in this court and a proceeding conducted in QCAT. Reference was made to procedural rules in this court governing pleadings and disclosure and the power of the court to direct the parties to engage in alternative dispute resolution. It was noted that the rules of evidence do not necessarily apply in QCAT and there are limited rights of appeal from QCAT. None of these submissions provided a cogent reason for allowing this proceeding to continue in parallel with the builder’s proceeding. Having regard to the positive pleas contained in the owners’ responsive pleading in QCAT, it is uncontroversial that the contract was a “domestic building contract” and the builder’s proceeding, and the allegations raised in this proceeding, involve a “domestic building dispute” within the meaning of those terms as contained in the QBCC Act. Parliament has intended that QCAT, with its different rules and procedures aimed at facilitating its objects, is an appropriate forum in which domestic building disputes may be decided.[55] The differences in rules and procedures tend to emphasise the appropriateness of QCAT as a forum for deciding domestic building disputes. They do not provide a cogent reason for countenancing multiple proceedings in different courts or tribunals. 
  2. [70]
    Further, although the owners extolled the benefits of this court’s pleading rules, their statement of claim had not observed those rules. Notably, the statement of claim included a number of allegations of fraudulent concealment by the builder which were made without any proper particulars.[56] On the face of the pleading, it is unclear who, on behalf of the builder, is alleged to have acted with fraudulent intent or knowledge. The pleading disclosed that Mr Durkin was the sole director of the builder and a Mr George had been the site supervisor. No attempt was made to plead facts attributing knowledge or relevant conduct to either person. A number of allegations of fraudulent concealment of defects involved nothing more than bare allegations.[57] In my consideration, a relevant consideration was not so much that this court has pleading rules but rather that the owners were purporting to commence a parallel proceeding in this court without complying with those rules. 
  3. [71]
    Whilst the owners referred to delay in the builder’s proceeding, they did not satisfactorily explain their own delay in commencing this proceeding or their failure to take any steps to stay the builder’s proceeding, other than on the ground which was the subject of the jurisdiction decision. To date, the builder has incurred costs (including legal costs and expert fees) in the amount of $233,531.00 in relation to the conduct of the builder’s proceeding.[58] It was also apparent that the owners had made a deliberate decision to refrain from advancing claims for relief in the builder’s proceeding and had decided to advance their claims for relief in this proceeding.[59] The owners conceded that the subject matter of their claims in this proceeding concerned matters which they could have raised as claims in QCAT.[60] They submitted that they would now be prejudiced by any stay of this proceeding because limitation periods may have since expired in relation to the claims they sought to advance in this proceeding, meaning they might not be able to advance those claims in QCAT. That prejudice was a prejudice of the owners’ own making by reason of their strategic decision to commence a parallel proceeding in this court without seeking to advance claims by way of counter application[61] in QCAT. Further, the prejudice has been addressed by an undertaking by the builder. The undertaking is to the effect that the builder will not take any limitations defence in response to any claims sought to be advanced by the owners in or by way of counter application to the builder’s proceeding where those claims are presently a subject of the statement of claim in this proceeding. In that regard, the parties’ submissions accepted that, to the extent that ss 29(1) and (2) of the QBCC Act impose time periods for the starting of proceedings based on breaches of statutory warranty, those provisions were procedural in nature.  
  4. [72]
    I have also formed the view that it would be inappropriate to transfer this proceeding to QCAT in circumstances where there has been no defence filed and no joinder of issue. In that regard, I agree with the reasoning and approach of McGill DCJ SC in March v Metrotek Constructions Pty Ltd.[62]

Orders

Upon the undertaking of the builder, should any claims which are a subject of the statement of claim in this proceeding be raised by the owners in or by way of counter application to the Queensland Civil and Administrative Tribunal proceeding BDL219-19, not to plead or take any limitations defence in response to any such claims,

  1. This proceeding is stayed pending the determination of Queensland Civil and Administrative Tribunal proceeding BDL219-19.
  2. There shall be liberty to apply on three days’ notice.
  3. I will hear the parties as to costs.

Footnotes

[1] QBCC decision dated 19 March 2018.

[2] Allen & Anor v Queensland Building and Construction Commission [2019] QCAT 20, [3].

[3] Allen & Anor v Queensland Building and Construction Commission [2019] QCAT 20, [4].

[4] Ibid [5].

[5] Ibid [6].

[6] Allen & Taylor v Queensland Building and Construction Commission [2020] QCAT 63, [111].

[7] Ibid [112].

[8] Ibid [148].

[9] Allen v Queensland Building and Construction Commission [2023] QCATA 66, [37].

[10] Ibid [184].

[11] Ibid [146].

[12] Ibid [209].

[13] Ibid [248]–[249].

[14] Ibid [209].

[15] Ibid [250].

[16] Statement of Claim [87] and [88].

[17] (2006) 226 CLR 256, 265 [9].

[18] Rogers v Roche (No 1) [2017] 2 Qd R 306, [45]; McGee v Independent Assessor & Anor [2023] QCA 225, [52].

[19] 19 [2023] QCA 225, [52].

[20] Ibid.

[21] [2017] 2 Qd R 306, [45].

[22] Ibid.

[23] (2013) 118 SASR 297, 331.

[24] (1889) 14 App Cas 665.

[25] Ibid 668.

[26] [1982] AC 529.

[27] Arthur JS Hall & Co v Simons [2002] 1 AC 615, 643.

[28] Secretary of State for Trade and Industry v Bairstow [2004] Ch 1, 16 [36].

[29] (1995) 43 NSWLR 404, 414.

[30] [2004] Ch 1, 16–17 [38].

[31] Blue J made observations to a similar effect in Morgan v WorkCover Corporation (2013) 118 SASR 297, 331.

[32] (1997) Aust Tort Reps ¶81-423 (64,077), 64,089.

[33] These statements of principle have been referred to with approval by Handley JA (with whom other members of the New South Wales Court of Appeal agreed) in Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198, 204 [32] and by Cooper J (with whom Bond and Dalton JJA agreed) in McGee v Independent Assessor & Anor [2023] QCA 225, [75].

[34] (2006) 226 CLR 256, 265 [9].

[35] Henry v Henry (1996) 185 CLR 571, 591.

[36] [2000] VSC 128, [28]–[30].

[37] Those comments were referred to with approval by Campbell JA (with whom Tobias J agreed) in Australian Hardboards Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 201, [1], [34].

[38] (1976) 50 ALJR 589, 592.

[39] Ibid.

[40] (1978) 33 FLR 170.

[41] Ibid 177.

[42] (1992) 34 FCR 287.

[43] Ibid 291.

[44] Burbank Australia Pty Ltd v Luzinat [2000] VSC 128, [30].

[45] In terms of the agreed list of issues, this question embraces issues one, two, seven and eight of the list of issues.

[46] Affidavit of Bradley Cameron Durkin filed 15 February 2014, ex BCD-08, [33].

[47] In terms of the agreed list of issues, this question embraces issues three and six of the list of issues.

[48] Moore v Inglis (1976) 50 ALJR 589, 593.

[49] Response of the Owners in QCAT filed 7 March 2023 [227](b).

[50] (2006) 226 CLR 256, [65].

[51] Ibid [63].

[52] Response of the Owners in QCAT filed 7 March 2023 [227](b)

[53] Affidavit of Reece Justin Allen filed 13 March 2024 [29].

[54] Affidavit of Reece Justin Allen filed 13 May 2024 [30](b).

[55] QBCC Act s 77.

[56] Uniform Civil Procedure Rules 1999 (Qld) rr 150(1)(f), 157(c).

[57] See by way of example para 150(e), 179(e) and 235(e) of the Statement of Claim.

[58] Affidavit of Bradley Cameron Durkin filed 15 February 2014, ex BCD-08, [16].

[59] T 1-74.09 and 25.

[60] T 1-74.09.

[61] Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 48.

[62] [2011] QDC 376, [5].

Close

Editorial Notes

  • Published Case Name:

    Allen & Anor v Contrast Constructions Pty Ltd

  • Shortened Case Name:

    Allen v Contrast Constructions Pty Ltd

  • MNC:

    [2025] QSC 18

  • Court:

    QSC

  • Judge(s):

    Kelly J

  • Date:

    13 Feb 2025

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Allen v Queensland Building and Construction Commission [2019] QCAT 20
3 citations
Jump To
Cite 1 - [2019] QCAT 20
Cite 2 - [2019] QCAT 20
Cite 3 - [2019] QCAT 20
Allen v Queensland Building and Construction Commission [2020] QCAT 63
2 citations
Jump To
Cite 1 - [2020] QCAT 63
Cite 2 - [2020] QCAT 63
Allen v Queensland Building and Construction Commission [2023] QCATA 66
2 citations
Jump To
Cite 1 - [2023] QCATA 66
Cite 2 - [2023] QCATA 66
Arthur J S Hall & Co (a firm) v Simonds [2002] 1 AC 615
2 citations
Jump To
Cite 1 - [2002] 1 AC 615
Cite 2 - [2002] 1 AC 615
Australian Hardboards Ltd v Hudson Investment Group (2007) 70 NSWLR 201
2 citations
Jump To
Cite 1 - (2007) 70 NSWLR 201
Cite 2 - (2007) 70 NSWLR 201
Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256
4 citations
Jump To
Cite 1 - (2006) 226 CLR 256
Cite 2 - (2006) 226 CLR 256
Cite 3 - (2006) 226 CLR 256
Cite 4 - (2006) 226 CLR 256
Burbank Australia Pty Ltd v Luzinat [2000] VSC 128
3 citations
Jump To
Cite 1 - [2000] VSC 128
Cite 2 - [2000] VSC 128
Cite 3 - [2000] VSC 128
Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404
2 citations
Jump To
Cite 1 - (1995) 43 NSWLR 404
Cite 2 - (1995) 43 NSWLR 404
Henry v Henry (1996) 185 CLR 571
2 citations
Jump To
Cite 1 - (1996) 185 CLR 571
Cite 2 - (1996) 185 CLR 571
Hunter v Chief Constable of the West Midlands Police (1982) AC 529
2 citations
Jump To
Cite 1 - (1982) AC 529
Cite 2 - (1982) AC 529
L. Grollo Darwin Management Pty Ltd v Victor Plaster Products Pty Ltd [1978] 33 FLR 170
2 citations
Jump To
Cite 1 - [1978] 33 FLR 170
Cite 2 - [1978] 33 FLR 170
March v Metrotek Constructions Pty Ltd [2011] QDC 376
2 citations
Jump To
Cite 1 - [2011] QDC 376
Cite 2 - [2011] QDC 376
McGee v Independent Assessor [2023] QCA 225
4 citations
Jump To
Cite 1 - [2023] QCA 225
Cite 2 - [2023] QCA 225
Cite 3 - [2023] QCA 225
Cite 4 - [2023] QCA 225
Moore v Inglis (1976) 50 ALJR 589
3 citations
Jump To
Cite 1 - (1976) 50 ALJR 589
Cite 2 - (1976) 50 ALJR 589
Cite 3 - (1976) 50 ALJR 589
Morgan v WorkCover Corporation (2013) 118 SASR 297
3 citations
Jump To
Cite 1 - (2013) 118 SASR 297
Cite 2 - (2013) 118 SASR 297
Cite 3 - (2013) 118 SASR 297
Reichel v McGrath (1889) 14 App Cas 665
2 citations
Jump To
Cite 1 - (1889) 14 App Cas 665
Cite 2 - (1889) 14 App Cas 665
Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198
2 citations
Jump To
Cite 1 - (2001) 53 NSWLR 198
Cite 2 - (2001) 53 NSWLR 198
Rogers v Roche[2017] 2 Qd R 306; [2016] QCA 340
3 citations
Jump To
Cite 1 - [2017] 2 Qd R 306
Cite 2 - [2017] 2 Qd R 306
Cite 3 - [2017] 2 Qd R 306
Secretary of State for Trade and Industry v Bairstow [2004] Ch 1
3 citations
Jump To
Cite 1 - [2004] Ch 1
Cite 2 - [2004] Ch 1
Cite 3 - [2004] Ch 1
Sterling Pharmaceuticals Pty Ltd v Boots Co (Australia) Pty Ltd (1992) 34 FCR 287
2 citations
Jump To
Cite 1 - (1992) 34 FCR 287
Cite 2 - (1992) 34 FCR 287

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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