Benson v Legg

[2020] QCAT 270

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Benson v Legg [2020] QCAT 270

PARTIES:

MARK ANDREW BENSON

(applicant)

v

ROBERT JOHNATHAN LEGG

(respondent)

APPLICATION NO/S:

BDL063-19

MATTER TYPE:

Building matters

DELIVERED ON:

22 July 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Kanowski

ORDERS:

Robert Johnathan Legg must pay Mark Andrew Benson $7,765.92 in damages, and $330 in costs, by 19 August 2020.

CATCHWORDS:

TORTS – NEGLIGENCE – DAMAGE AND CAUSATION – GENERALLY – where deck unfit for purpose – whether builder liable

BANKRUPTCY – PROCEEDINGS IN CONNECTION WITH SEQUESTRATION – PETITION AND SEQUESTRATION ORDER – EFFECT OF BANKRUPTCY ON PROPERTY AND PROCEEDINGS – ACTIONS BY AND AGAINST BANKRUPT – STAY OF PROCEEDINGS AGAINST BANKRUPT AFTER PRESENTATION OF PETITION – IN RESPECT OF PROVABLE DEBT – where builder became bankrupt after work performed – whether action for damages for negligence is a provable debt – whether action can be pursued against bankrupt builder

Bankruptcy Act 1966 (Cth), s 58(3), s 82

Queensland Building and Construction Commission Act 1991 (Qld), s 77

Atkinson and Anor v Van Uden [2020] QCAT 259

Bryan v Maloney (1995) 182 CLR 609

McNulty & Ralph v Sel [2017] QCAT 10

REPRESENTATION:
Applicant:	Self-represented
Respondent:	Self-represented
APPEARANCES:	This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’)

REASONS FOR DECISION

Introduction

1. Mr Legg designed and built a timber deck at Mr Benson’s house in late 2017. Mr Benson says the deck was poorly built. He seeks damages and costs from Mr Legg.

2. Mr Benson commenced the proceeding in the Tribunal, by way of an application for a domestic building dispute, on 20 February 2019. By then, Mr Legg was bankrupt. He became bankrupt on 18 July 2018.

3. On 6 March 2019, the Tribunal directed Mr Legg to file a response to Mr Benson’s application by 5 April 2019. On 21 March 2019 Mr Legg filed an email saying ‘My bankrupt my paperwork has past on to trustees’ and attaching screen shots of correspondence sent to him about the bankruptcy. On 21 March 2019 the Tribunal directed Mr Legg to provide further information about his bankruptcy by 5 April 2019. Mr Legg did so.

4. On 23 May 2019 the Tribunal directed Mr Legg to file a response to Mr Benson’s application by 31 May 2019. The Tribunal further directed that if Mr Legg failed to do so, Mr Benson would be entitled to a final decision, which would be made on the papers.

5. Mr Legg sent to the Tribunal a couple of short emails which seem to be to the effect that his bankruptcy extinguished any debt. He did not file a formal response. He also did not attend a directions hearing on 26 September 2019.

6. On 7 June 2019 the Tribunal’s registry had received an email from Ms Mel Purcell, Operations Manager at S V Partners, accountants, Brisbane, noting that two persons from that firm are the…