Gerard Mahony v Queensland Building Services Authority

[2014] HCASL 93

GERARD MAHONY

v

QUEENSLAND BUILDING SERVICES AUTHORITY

[2014] HCASL 93
B64/2013

1. The applicant, a licensed builder, entered into four building contracts for residential construction work in Rainbow Beach, Queensland.  In each case the owner alleged that the building work was defective and referred the matter to the respondent, the statutory regulator and insurer of residential building work under the Queensland Building Services Authority Act 1991 (Q) (the "Act"). The respondent directed the applicant rectify the work. Subsequently, the respondent determined that the rectification was unsatisfactory, and paid an amount to successful tenderers for completion of the rectification work.

2. The respondent commenced proceedings in the District Court of Queensland (Reid DCJ) against the applicant under s 71(1) of the Act, and recovered, as a debt from the applicant, $193,431.28 paid out by the respondent under the scheme. Section 71(1) of the Act provides:

   "If the Authority makes any payment on a claim under the           insurance scheme, the Authority may recover the amount of        the payment, as a debt, from the building contractor by            whom the relevant residential construction work was, or            was to be, carried out or any other person through whose            fault the claim arose."

3. The Court of Appeal of the Supreme Court of Queensland (McMurdo P, Gotterson JA, and Douglas J) dismissed an appeal from the orders of the District Court. The applicant sought to argue that as a matter of construction, s 71(1) required the respondent to prove fault on the part of the applicant as an element of its claim for recovery. The Court rejected this construction holding that the fault clause formed only part of the second limb of s 71(1).

4. The applicant also submitted that in recovery proceedings under s 71(1) the steps anterior to payment and recovery are justiciable issues. Specifically, the applicant sought to put at issue the competency of the inspector who produced the relevant reports for the respondent. The Court of Appeal held that the availability of merits review of a range of decisions of the Authority provided a sound rationale for a legislative intention that such decisions not be justiciable.

5. The applicant seeks special leave to appeal from the decision of Court of Appeal on the same grounds.  We are not satisfied that an appeal to this Court would enjoy sufficient prospects of success to warrant a grant of special leave.

6. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

V.M. Bell
13 May 2014 S.J. Gageler