Namour v Queensland Building Services Authority - [2014] QCA 72

SUPREME COURT OF QUEENSLAND

CITATION:

Namour v Queensland Building Services Authority [2014] QCA 72

PARTIES:

GUS NAMOUR
(appellant)
v
QUEENSLAND BUILDING SERVICES AUTHORITY
(respondent)

FILE NO/S:

Appeal No 8710 of 2013
DC No 1664 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

11 April 2014

DELIVERED AT:

Brisbane

HEARING DATE:

11 March 2014

JUDGES:

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

ORDER:

Appeal dismissed with costs.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – where the appellant was a director of a building company that had its licence cancelled and was unable to complete several building contracts – where the property owners of those contracts made claims against the respondent under the insurance scheme – where the respondent then brought proceedings against the appellant to recover those amounts as a debt pursuant to ss 71(1) and 111C of the Queensland Building Services Authority Act 1991 (Qld) – where summary judgment for that debt was entered – whether the appellant director needed to be at ‘fault’ to be liable for those debts – whether, if the appellant’s licence was wrongfully cancelled, the property owners’ claims were not made validly under the insurance scheme and therefore the respondent’s payments were not “payment[s] on a claim” under s 71(1) – whether the correctness of the licence cancellation is justiciable in recovery proceedings brought against a director

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULE OF COURT – SUMMARY JUDGMENT – where the appellant argues the primary judge erred in summarily determining the quantum of debt to be paid – whether the Act requires the amount of the payments made under the insurance scheme be reasonable in order for those amounts to be recoverable against the appellant – whether summary judgment should have been refused because the quantum of the debt was not proved to the necessary degree of assurance – whether r 292 of the Uniform Civil Procedure Rules 1999 was correctly applied

Queensland Building Services Authority Act 1991 (Qld), s 71(1), s 111C(3), s 111C(6)
Uniform Civil Procedure Rules 1999 (Qld), r 292

Bropho v Western Australia (1990) 171 CLR 1; [1990] HCA 24, cited
Lange v Queensland Building Services Authority [2012] 2 Qd R 457; [2011] QCA 58, cited
Mahony v Queensland Building Services Authority [2013] QCA 323, discussed

COUNSEL:

L Boccabella with A C Freeman for the appellant
P O’Shea QC, with N M Cooke, for the respondent

SOLICITORS:

AJ Torbey & Associates for the appellant
Rostron Carlyle Solicitors for the respondent

MARGARET McMURDO P: I agree with Fraser JA’s reasons for dismissing this appeal with costs.

FRASER JA: Trans Asia Pacific Projects Pty Ltd (“the Company”), a licensed builder, made separate contracts with eight property owners to construct residences on each property. The appellant was a director of the Company…

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.

Keep reading for free

Create a free CaseChat account to read Namour v Queensland Building Services Authority and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] QCA 72
Decision Date: 11 April 2014

CaseChat Overview and Summary

The appellant, Mr Namour, was a director of a building company that had its licence cancelled by the respondent, the Queensland Building Services Authority. As a result, the company could not complete several building contracts, leading the property owners to make claims against the respondent under the statutory insurance scheme. The respondent then sought to recover the amounts paid to the property owners from Mr Namour as a debt under sections 71(1) and 111C of the Queensland Building Services Authority Act 1991. The respondent was granted summary judgment, and Mr Namour appealed, arguing that he was not at fault for the company's inability to complete the contracts, that the property owners' claims were not valid under the insurance scheme, and that the correctness of the licence cancellation was not justiciable in the recovery proceedings. Additionally, Mr Namour contended that the primary judge erred in summarily determining the quantum of the debt to be paid and that the amount of the payments made under the insurance scheme needed to be reasonable for those amounts to be recoverable against him.

The court considered whether Mr Namour needed to be at fault to be liable for the debts, whether the property owners' claims were valid under the insurance scheme if the licence cancellation was wrongful, and whether the correctness of the licence cancellation was justiciable in the recovery proceedings. The court also examined whether the Act required the amount of the payments made under the insurance scheme to be reasonable to be recoverable against Mr Namour, and whether summary judgment should have been refused due to insufficient proof of the quantum of the debt. The court found that Mr Namour was not required to be at fault, but that the property owners' claims were valid under the insurance scheme, regardless of the correctness of the licence cancellation. Furthermore, the court held that the primary judge did not err in summarily determining the quantum of the debt, and that the amount of the payments made under the insurance scheme did not need to be reasonable for those amounts to be recoverable against Mr Namour.

The appeal was dismissed with costs. The court held that Mr Namour was liable for the debts under the statutory insurance scheme, despite not being at fault, and that the property owners' claims were valid under the insurance scheme. The court also found that the correctness of the licence cancellation was not justiciable in the recovery proceedings, and that the primary judge did not err in summarily determining the quantum of the debt. The appeal was dismissed with costs, and the summary judgment entered against Mr Namour was upheld.

Orders

Orders of the court

Appeal dismissed with costs.

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:	Namour v Queensland Building Services Authority [2014] QCA 72
PARTIES:	GUS NAMOUR (appellant) v QUEENSLAND BUILDING SERVICES AUTHORITY (respondent)
FILE NO/S:	Appeal No 8710 of 2013 DC No 1664 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	11 April 2014
DELIVERED AT:	Brisbane
HEARING DATE:	11 March 2014
JUDGES:	Margaret McMurdo P and Fraser JA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed with costs.
CATCHWORDS:	PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – where the appellant was a director of a building company that had its licence cancelled and was unable to complete several building contracts – where the property owners of those contracts made claims against the respondent under the insurance scheme – where the respondent then brought proceedings against the appellant to recover those amounts as a debt pursuant to ss 71(1) and 111C of the Queensland Building Services Authority Act 1991 (Qld) – where summary judgment for that debt was entered – whether the appellant director needed to be at ‘fault’ to be liable for those debts – whether, if the appellant’s licence was wrongfully cancelled, the property owners’ claims were not made validly under the insurance scheme and therefore the respondent’s payments were not “payment[s] on a claim” under s 71(1) – whether the correctness of the licence cancellation is justiciable in recovery proceedings brought against a director PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULE OF COURT – SUMMARY JUDGMENT – where the appellant argues the primary judge erred in summarily determining the quantum of debt to be paid – whether the Act requires the amount of the payments made under the insurance scheme be reasonable in order for those amounts to be recoverable against the appellant – whether summary judgment should have been refused because the quantum of the debt was not proved to the necessary degree of assurance – whether r 292 of the Uniform Civil Procedure Rules 1999 was correctly applied Queensland Building Services Authority Act 1991 (Qld), s 71(1), s 111C(3), s 111C(6) Uniform Civil Procedure Rules 1999 (Qld), r 292 Bropho v Western Australia (1990) 171 CLR 1; [1990] HCA 24, cited Lange v Queensland Building Services Authority [2012] 2 Qd R 457; [2011] QCA 58, cited Mahony v Queensland Building Services Authority [2013] QCA 323, discussed
COUNSEL:	L Boccabella with A C Freeman for the appellant P O’Shea QC, with N M Cooke, for the respondent
SOLICITORS:	AJ Torbey & Associates for the appellant Rostron Carlyle Solicitors for the respondent