J and MD Milligan P/L v Queensland Building Services Authority - [2012] QSC 213

SUPREME COURT OF QUEENSLAND

CITATION:

J & MD Milligan P/L v Queensland Building Services Authority [2012] QSC 213

PARTIES:

J & MD MILLIGAN PTY LTD

(applicant)

v

QUEENSLAND BUILDING SERVICES AUTHORITY

(respondent)

FILE NO/S:

BS3690/12

DIVISION:

Trial

PROCEEDING:

Applications

DELIVERED ON:

14 August 2012

DELIVERED AT:

Brisbane

HEARING DATE:

13 July 2012

JUDGE:

Margaret Wilson J

ORDERS:

1. The plaintiff’s application filed on 20 June 2012 is refused;

2. On the defendant’s application filed on 9 July 2012;

(i)paragraph 11B(b) and both paragraphs numbered 13B of the second amended statement of claim are struck out;

(ii)summary judgment is refused.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PLEADING – UNIFORM CIVIL PROCEDURE RULES 1999 (QLD) – where plaintiff seeks leave to amend claim to introduce new cause of action in estoppel – where plaintiff carries on business fabricating and installing steel structures – where defendant is the licensing authority with responsibility for the plaintiff’s trade – where defendant sent plaintiff licence renewal notice – where licence suspended pursuant to s 53A Queensland Building Services Authority Act 1991 (Qld) because plaintiff did not provide information about its continued satisfaction of relevant financial requirements – where information subsequently provided – where suspension ended – whether plaintiff should be given leave to amend claim to seek declaration that defendant estopped from denying that the information provided was that required by s 53A

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PLEADING – STATEMENT OF CLAIM – STRIKING OUT AND SUMMARY JUDGMENT – UNIFORM CIVIL PROCEDURE RULES 1999 (QLD) – Interpretation of s 53A Queensland Building Services Authority Act 1991 (Qld) – whether plaintiff has pleaded elements necessary for estoppel – whether estoppel available to prevent exercise of statutory duty or statutory discretion – where application to strike out all or parts of statement of claim – whether summary judgment should be entered for defendant

Queensland Building Services Authority Act 1991 (Qld), s 53A.

Attorney-General (NSW) v Quin (1990) 170 CLR 1, cited.
Lambidis v Commissioner of Police(1995) 37 NSWLR 320, cited.
Wort v Whitsunday SC (2001) 116 LGERA 179; [2001] QCA 344, cited.

COUNSEL:

R E Schulte for the plaintiff
J C Bell QC and T F Pincus for the defendant

SOLICITORS:

R J Winter & Associates for the plaintiff
Minter Ellison for the defendant

MARGARET WILSON J: By an application filed on 20 June 2012 the plaintiff sought leave to amend its claim to add a cause of action in estoppel and an interlocutory injunction. By a cross application filed on 9 July 2012 the defendant sought summary judgment against the plaintiff or alternatively an order striking out all, or alternatively paragraphs 2(g), 2A to 2H, 7, 7A, 7B, 8A, 8B, 9, 9A to 9C, 10, 11A to 11C, 13 and both paragraphs numbered 13B, of the second amended statement of claim.

The applications were heard together on 13 July 2012. I dismissed the application…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: J and MD Milligan P/L v Queensland Building Services Authority [2012] QSC 213
Case: [2012] QSC 213
Decision Date: 14 August 2012

CaseChat Overview and Summary

The case involves J and MD Milligan P/L, who operate a business fabricating and installing steel structures, against the Queensland Building Services Authority. The dispute pertains to the plaintiff's request for leave to amend their claim to include a new cause of action based on estoppel. The Queensland Building Services Authority, the defendant, is the licensing authority responsible for the plaintiff's trade. The dispute arose when the defendant sent the plaintiff a licence renewal notice, subsequently suspending the licence under section 53A of the Queensland Building Services Authority Act 1991 due to the plaintiff's failure to provide information about its continued satisfaction of relevant financial requirements. After the information was eventually provided, the suspension ended. The plaintiff sought a declaration that the defendant is estopped from denying that the information provided met the requirements of section 53A.

The court was required to decide whether the plaintiff should be granted leave to amend its claim to include the new cause of action in estoppel and if the plaintiff had pleaded the necessary elements for estoppel. Additionally, the court had to determine whether estoppel could prevent the exercise of a statutory duty or discretion and whether the defendant's application to strike out parts of the plaintiff's statement of claim should succeed. The court also needed to decide if summary judgment should be entered in favor of the defendant.

The court found that the plaintiff's application for leave to amend its claim was refused. Regarding the defendant's application, the court struck out certain paragraphs of the plaintiff's statement of claim but denied the request for summary judgment. The court determined that the plaintiff had not sufficiently pleaded the elements necessary for estoppel and that estoppel could not be used to prevent the exercise of a statutory duty or discretion. Therefore, the court refused to grant summary judgment in favor of the defendant.

Orders

Orders of the court

1. The plaintiff’s application filed on 20 June 2012 is refused;

2. On the defendant’s application filed on 9 July 2012;

(i)paragraph 11B(b) and both paragraphs numbered 13B of the second amended statement of claim are struck out;

(ii)summary judgment is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	J & MD Milligan P/L v Queensland Building Services Authority [2012] QSC 213
PARTIES:	J & MD MILLIGAN PTY LTD (applicant) v QUEENSLAND BUILDING SERVICES AUTHORITY (respondent)
FILE NO/S:	BS3690/12
DIVISION:	Trial
PROCEEDING:	Applications
DELIVERED ON:	14 August 2012
DELIVERED AT:	Brisbane
HEARING DATE:	13 July 2012
JUDGE:	Margaret Wilson J
ORDERS:	1. The plaintiff’s application filed on 20 June 2012 is refused; 2. On the defendant’s application filed on 9 July 2012; (i)paragraph 11B(b) and both paragraphs numbered 13B of the second amended statement of claim are struck out; (ii)summary judgment is refused.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PLEADING – UNIFORM CIVIL PROCEDURE RULES 1999 (QLD) – where plaintiff seeks leave to amend claim to introduce new cause of action in estoppel – where plaintiff carries on business fabricating and installing steel structures – where defendant is the licensing authority with responsibility for the plaintiff’s trade – where defendant sent plaintiff licence renewal notice – where licence suspended pursuant to s 53A Queensland Building Services Authority Act 1991 (Qld) because plaintiff did not provide information about its continued satisfaction of relevant financial requirements – where information subsequently provided – where suspension ended – whether plaintiff should be given leave to amend claim to seek declaration that defendant estopped from denying that the information provided was that required by s 53A PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PLEADING – STATEMENT OF CLAIM – STRIKING OUT AND SUMMARY JUDGMENT – UNIFORM CIVIL PROCEDURE RULES 1999 (QLD) – Interpretation of s 53A Queensland Building Services Authority Act 1991 (Qld) – whether plaintiff has pleaded elements necessary for estoppel – whether estoppel available to prevent exercise of statutory duty or statutory discretion – where application to strike out all or parts of statement of claim – whether summary judgment should be entered for defendant Queensland Building Services Authority Act 1991 (Qld), s 53A. Attorney-General (NSW) v Quin (1990) 170 CLR 1, cited. Lambidis v Commissioner of Police(1995) 37 NSWLR 320, cited. Wort v Whitsunday SC (2001) 116 LGERA 179; [2001] QCA 344, cited.
COUNSEL:	R E Schulte for the plaintiff J C Bell QC and T F Pincus for the defendant
SOLICITORS:	R J Winter & Associates for the plaintiff Minter Ellison for the defendant