Queensland Building and Construction Commission v Burr

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Queensland Building and Construction Commission v Burr [2014] QMC 25

PARTIES:

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(plaintiff)

v

JASON ANDREW BURR

(defendant)

FILE NO/S:

M3026/14

DIVISION:

Magistrates Courts

PROCEEDING:

Application for summary judgment (in a claim for a debt under the Queensland Building and Construction Commission Act 1991)

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

24 October 2014

DELIVERED AT:

Brisbane

HEARING DATE:

8 August 2014, 9 September 2014

MAGISTRATE:

Springer BL

ORDER:

Judgment for the plaintiff in the sum of $47,307.00 plus interest and costs to be determined, following submissions.

CATCHWORDS:

TRADE PRACTICES – BUILDING AND CONSTRUCTION – Claim to recover amount paid by Queensland Building and Construction Commission under the Statutory Insurance Scheme from a Building Contractor

COUNSEL:

MM Cook appeared for plaintiff

C Upton appeared for defendant

SOLICITORS:

Rostryn Carlisle for plaintiff

PPCS Lawyers for defendant

Introduction

1. The plaintiff, the Queensland Building and Construction Commission (“the Commission”), seeks summary judgment against the defendant under rule 292 of the Uniform Civil Procedure Rules.[1] The claim relates to payments made under the statutory insurance scheme provided for in the Queensland Building and Construction Commission Act 1991 (the QBCC Act). That Act was formerly known as the Queensland Building Services Authority Act1991. Amendments were made in 2013 to change the relevant body from the Queensland Building Services Authority (“the Authority) to the Commission.

   [1] Rule 292 states: “(1) A plaintiff may, at any time after a defendant files a notice of intention to defend, apply to the court under this part for judgment against the defendant.

   (2) If the court is satisfied that –

   (a) the defendant has no real prospect of successfully defending all or a part of the plaintiff’s claim; and

   (b) there is no need for a trial of the claim or the part of the claim;

   the court may give judgment for the plaintiff against the defendant for all or the part of the plaintiff’s claim and may make any other order the court considers appropriate.”

1. The defendant has defended the Claim and, unsurprisingly, has opposed the application for summary judgment. At the hearing of the application, Counsel for each party provided the court with comprehensive written and oral submissions.

1. I set out below a chronology of events relevant to this matter:

Date	Event	Source of evidence or information located
12 February 2007	Contract between Noonbrace Pty Ltd (“Noonbrace”) and homeowners (the Pescotts) to construct a home at Bribie Island	Affidavits of Matthew Stratford filed 10 July 2014 (ex MJS2) and Burr sworn 28 July 2014 and filed 1 August 2014 (para 3)
December 2007	Noonbrace performed repair work	Affidavit of Burr (para 6(c))
9 January 2008	Commencement of proceedings in Queensland Commercial and Consumer Tribunal (QCCT) by Noonbrace	Affidavit of Burr (para 6(c))
18 January 2008	Homeowners filed a Defence and Counterclaim in QCCT proceeding	Affidavit of Burr (para 6(c))
13 February 2009	Homeowners filed a Further Defence and Counterclaim in QCCT proceeding	Affidavit of Burr…