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Mahony v Queensland Building Services Authority

Mahony v Queensland Building Services Authority

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Case Copied 29 October 2013 23 min read

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SUPREME COURT OF QUEENSLAND

CITATION:

Mahony v Queensland Building Services Authority [2013] QCA 323

PARTIES:

GERARD MAHONY
(appellant)
v
QUEENSLAND BUILDING SERVICES AUTHORITY
(respondent)

FILE NO/S:

Appeal No 2160 of 2013
DC No 1996 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

29 October 2013

DELIVERED AT:

Brisbane

HEARING DATE:

26 July 2013

JUDGES:

Margaret McMurdo P and Gotterson JA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Time for filing and serving by the respondent of its Notice of Contention be extended to the date of hearing of the appeal.1.

Appeal dismissed.2.

Appellant to pay the respondent’s costs of the appeal on the standard basis.3.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – SUMMARY JUDGMENT – where the respondent is the statutory regulator of the building industry and the statutory insurer of residential building work in Queensland – where the appellant was a builder who entered into four building contracts between March 2004 and January 2005 for residential construction work – where each of the owners requested the respondent consider whether to direct rectification of building work carried out by the appellant – where each request was made contemporaneously with the giving of notice by the owner of an insurance claim which was successful – where summary judgment was given against the appellant in the District Court – where the appellant contends that the judge erred in finding that the respondent’s delay in bringing the application did not preclude it from obtaining summary judgement; that the judge erred in not giving consideration to the fact that the respondent did not file and serve a reply to the fourth amended defence before applying for summary judgment and that the judge erred in not giving consideration to the fact that the respondent did not file and serve an expert report by 4 June 2012 – whether the judge erred in giving summary judgment in favour of the respondents

PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – where the appellant contends that the provisions of s 71(1) of the Queensland Building Services Authority Act 1991 required the respondent to prove that the claims arose through the fault of the appellant as an element of its recovery claim – where the appellant in their pleadings made a deemed admission to being a building contractor within the meaning of s 71(2)(a)(ii), (iii) and (iv) of the Queensland Building Services Authority Act 1991 but denied being a person through whose fault the claim arose – where the respondent filed a notice of contention which contends that, on its proper construction, s 71(1) did not require the respondent to establish “fault” on the part of the appellant under the second limb of the section – whether it was necessary for the primary judge to determine whether there was a triable issue…

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

Case: [2013] QCA 323
Decision Date: 29 October 2013

CaseChat Overview and Summary

The appeal involved Mahony, a builder, against the Queensland Building Services Authority (QBSA), the statutory regulator and insurer for the building industry in Queensland. Mahony was involved in four building contracts from March 2004 to January 2005, for residential construction. Each of the owners requested QBSA to consider directing rectification of work carried out by Mahony, which was made concurrently with the notice of an insurance claim. Mahony was found liable in the District Court, and he appealed against the decision.

The primary issues before the court were whether the delay of the respondent in bringing the application precluded them from obtaining summary judgment, if the judge erred in not considering the respondent's failure to file and serve a reply to the fourth amended defence and an expert report before applying for summary judgment, and whether it was necessary for the primary judge to determine whether there was a triable issue concerning fault on the part of the appellant for the purposes of s 71(1). The court also needed to determine if matters such as challenging the legal efficacy of any step taken by the authority in the assessment of the claim were justiciable in s 71(1) recovery proceedings.

The court found that the delay in bringing the application did not preclude QBSA from obtaining summary judgment. The court also found that the respondent did not need to file and serve a reply to the fourth amended defence and an expert report before applying for summary judgment. The court held that it was not necessary for the primary judge to determine whether there was a triable issue concerning fault on the part of the appellant for the purposes of s 71(1). Finally, the court found that matters such as challenging the legal efficacy of any step taken by the authority in the assessment of the claim were not justiciable in s 71(1) recovery proceedings.

The appeal was dismissed, and Mahony was ordered to pay the respondent's costs of the appeal on the standard basis. The time for filing and serving by the respondent of its Notice of Contention was extended to the date of the hearing of the appeal.

Orders

Orders of the court

Time for filing and serving by the respondent of its Notice of Contention be extended to the date of hearing of the appeal.1.

Appeal dismissed.2.

Appellant to pay the respondent’s costs of the appeal on the standard basis.3.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Mahony v Queensland Building Services Authority [2013] QCA 323
PARTIES:	GERARD MAHONY (appellant) v QUEENSLAND BUILDING SERVICES AUTHORITY (respondent)
FILE NO/S:	Appeal No 2160 of 2013 DC No 1996 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	29 October 2013
DELIVERED AT:	Brisbane
HEARING DATE:	26 July 2013
JUDGES:	Margaret McMurdo P and Gotterson JA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Time for filing and serving by the respondent of its Notice of Contention be extended to the date of hearing of the appeal.1. Appeal dismissed.2. Appellant to pay the respondent’s costs of the appeal on the standard basis.3.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – SUMMARY JUDGMENT – where the respondent is the statutory regulator of the building industry and the statutory insurer of residential building work in Queensland – where the appellant was a builder who entered into four building contracts between March 2004 and January 2005 for residential construction work – where each of the owners requested the respondent consider whether to direct rectification of building work carried out by the appellant – where each request was made contemporaneously with the giving of notice by the owner of an insurance claim which was successful – where summary judgment was given against the appellant in the District Court – where the appellant contends that the judge erred in finding that the respondent’s delay in bringing the application did not preclude it from obtaining summary judgement; that the judge erred in not giving consideration to the fact that the respondent did not file and serve a reply to the fourth amended defence before applying for summary judgment and that the judge erred in not giving consideration to the fact that the respondent did not file and serve an expert report by 4 June 2012 – whether the judge erred in giving summary judgment in favour of the respondents PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – where the appellant contends that the provisions of s 71(1) of the Queensland Building Services Authority Act 1991 required the respondent to prove that the claims arose through the fault of the appellant as an element of its recovery claim – where the appellant in their pleadings made a deemed admission to being a building contractor within the meaning of s 71(2)(a)(ii), (iii) and (iv) of the Queensland Building Services Authority Act 1991 but denied being a person through whose fault the claim arose – where the respondent filed a notice of contention which contends that, on its proper construction, s 71(1) did not require the respondent to establish “fault” on the part of the appellant under the second limb of the section – whether it was necessary for the primary judge to determine whether there was a triable issue…