Partridge v The Queen

[2012] QDC 285

DISTRICT COURT OF QUEENSLAND

CITATION:

Queensland Building Services Authority v Thompson [2012] QDC 285

PARTIES:

QUEENSLAND BUILDING SERVICES AUTHORITY
(plaintiff)

v

KENNETH JOHN THOMPSON
(defendant)

FILE NO:

274/09

DIVISION:

PROCEEDING:

Civil Trial

ORIGINATING COURT:

Brisbane

DELIVERED ON:

17 September 2012

DELIVERED AT:

Brisbane

HEARING DATE:

13 September 2012

JUDGE:

Robin QC DCJ

ORDER:

Judgement for the plaintiff

CATCHWORDS:

Queensland Building Services Authority Act 1991 s 71(1)

Authority seeks recovery from building contractor of payments made in respect of the contractor’s client – defendant contends that the building contract came to an end by frustration when he became ill and could not do the work – contention that the client’s purported determination for “default” was without effect and did not trigger any obligation of the Authority to pay – in Commercial and Consumer Tribunal, where clients successfully applied for review of the Authority’s decision to pay a more modest sum, the defendant was added as a party and took the client’s part – whether “Ashun estoppel” precluded defendant’s now asserting the Authority had no obligation to pay – whether the building contract was capable of being frustrated as contended, given its terms – defendant did not understand that the Authority might seek indemnity from him

COUNSEL:

Ms M. J. Luchich for the plaintiff

SOLICITORS:

Patane Lawyers for the plaintiff

Mr K. J. Thompson is self-represented

1. The plaintiff Authority claims $200,000 plus interest upon a payment in that amount made by it against the defendant pursuant to s 71(1) of the Queensland Building Services Authority Act 1991.  The provision reads:

“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.”

The defendant is a building contractor who agreed with Mr Brown (or him and Ms Brophy) to carry out a “full house renovation with the addition of an upper level as per plans” for a contract price of $245,000, the works to reach practical completion within 180 days from the contract date, 7 July 2003.  Work commenced, but unfortunately Mr Thompson encountered serious health difficulties.  By letter of 10 October 2003 he advised the plaintiff of the problems and his inability to complete the building contract, adding:

“I intend to fully complete the ground floor to final stage; painting, light fittings, ready to move into.  I am now having to employ tradespeople to complete this work as I am unable to due to ill health.”

1. The intention thus expressed was not realised.  Mr Brown’s “Complaint Form Residential and Commercial Construction Work” received by the plaintiff on 14 October 2003 sought its assistance, in part by way of “an independent assessment of the percentage of completion once the lower level is finished [as] the only fair means to calculating the builder’s final payment.”  At page 89 of Exhibit 21,…