Allen v Contrast Constructions Pty Ltd

Case [2025] QSC 18

SUPREME COURT OF QUEENSLAND

CITATION:

Allen & Anor v Contrast 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.   This proceeding is stayed pending the determination of the 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.

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…

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AGLC
Allen v Contrast Constructions Pty Ltd [2025] QSC 18
Case
[2025] QSC 18
Decision Date

CaseChat Overview and Summary

In Allen v Contrast Constructions Pty Ltd, the plaintiff sought to enforce an indemnity claim against the defendant under a home warranty insurance policy. The dispute involved two proceedings: one in the Queensland Civil and Administrative Tribunal (QCAT) and another in the Supreme Court of Queensland. The defendant sought orders to stay or set aside the Supreme Court proceeding as an abuse of process or, alternatively, to transfer the proceeding to QCAT. The legal issues centred on whether the Supreme Court proceeding was an abuse of process due to multiplicity of proceedings, and whether it was appropriate to stay or transfer the proceeding to QCAT.

The court held that staying the proceeding was necessary to prevent an abuse of process involving multiplicity of proceedings. The court reasoned that the QCAT review proceeding was already underway, and the parties had incurred significant costs and effort in preparing for that hearing. The QBCC had made a late application to join the builder to the QCAT review proceeding, which was refused due to the lack of explanation for the delay. The court emphasised that the owners should not be required to incur additional costs and delays as a result of the QBCC's delay. Additionally, the court noted that the QBCC might recover any payment from the builder under the QBCC Act if the owners were successful in the QCAT review proceeding. Therefore, the interests of the builder were potentially affected by the outcome of the QCAT review proceeding.

The court ordered that the Supreme Court proceeding be stayed pending the determination of the QCAT review proceeding. The court also granted liberty to apply for relief and directed the parties to be heard on costs. This decision highlights the importance of timely applications and the need to prevent unnecessary multiplicity of proceedings to avoid abuse of process.

Orders

Orders of the court

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. This proceeding is stayed pending the determination of the 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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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:1. 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.2. 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.” 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]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].

Ratio Decidendi

Legal Principle Established

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