Queensland Building and Construction Commission v Coric

[2013] QDC 328

DISTRICT COURT OF QUEENSLAND

CITATION:

Queensland Building and Construction Commission v Coric [2013] QDC 328

PARTIES:

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION
(Plaintiff)

v
YOUNG YIP
(First Defendant)
and
LIANG QUI
(Second Defendant)
and
MATE CORIC
(Third Defendant)

FILE NO/S:

D2395/12

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

December 20, 2013

DELIVERED AT:

Brisbane

HEARING DATE:

December 16-18, 2013

JUDGE:

Koppenol DCJ

ORDER:

Plaintiff’s claim dismissed, with costs

CATCHWORDS:

BUILDING CONTRACTOR - DEFECTIVE & UNFINISHED WORK - STATUTORY INSURANCE SCHEME - COMMISSION PAID OUT RECTIFICATION CLAIMS - RECOVERY ACTION - ANY OTHER PERSON THROUGH WHOSE FAULT THE CLAIM AROSE - how proven

PRACTICE - PLEADINGS - NEED FOR SPECIFIC ALLEGATIONS - whether fault sufficiently alleged 

Queensland Building and Construction Commission Act 1991, s 71(1)

Dare v Pulham (1982) 148 CLR 658, applied
Queensland Building Services Authority v PAL Geotechnical Services Pty Ltd [2004] QCCTB 10, approved
AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, applied
Mahony v Queensland Building Services Authority [2013] QCA 323, applied

 COUNSEL:

NM Cook for Plaintiff
DJ Topp for Third Defendant

SOLICITORS:

Rostron Carlyle for Plaintiff

Macfie Curlewis Spiro for Third Defendant

1. Plaintiff claims $369,402.85 against Third Defendant. It abandoned its claim against the other defendants. Quantum was admitted. The trial was limited to liability.

1. The claim is based upon section 71(1) of the Queensland Building and Construction Commission Act 1991. Under that provision, Plaintiff may recover from (a) a building contractor, or (b) any other person through whose fault the claim arose, the amount of any payment which it made under the statutory insurance scheme, to rectify and complete work done by a licensed builder.

1. Plaintiff paid out the amount claimed to rectify and complete work done by OPD Pty Ltd on 3 residential houses in Brisbane between 2010 and 2012.

1. In Mahony v Queensland Building Services Authority [2013] QCA 323, the Court of Appeal held (at [27]-[28]) that the first and second limbs of section 71(1) were “mutually exclusive” and that the element of “fault” formed part of the second limb but not of the first.

1. Plaintiff alleges (Amended Statement of Claim, paras 5, 21, 27, 45, 51, 66) that it was “the fault of the Third Defendant that the Insurance Claim arose for the reasons pleaded”—namely that:

“The Third Defendant:

a)   Supervised, co-ordinated, managed, organised, or facilitated the carrying out of the … Residential Construction Work;

b)   Directly or indirectly caused the … Residential Construction Work to be carried out;

c)   Provided advisory services, administration services, management services or  supervisory services in respect of the … Residential Construction Work; and/or

d)   Was responsible for the carrying out of the … Residential Construction Work.”

1. Thus it is clear from its pleadings that Plaintiff is relying upon the second limb of section 71(1) for its claim against Third Defendant.

1. In those circumstances, as the Queensland Commercial and Consumer Tribunal held in Queensland Building Services Authority v PAL Geotechnical Services Pty Ltd [2004] QCCTB 10, at [24], the word “fault” in section 71(1) requires the Authority—here, Plaintiff—to allege and prove a causal nexus between the conduct of the person against whom it makes the claim and the circumstances of the making of the payment on a claim under the statutory insurance scheme. The Tribunal also emphasised (at [27]) the necessity to allege fault in a way recognised in law, which requires an allegation of a failure to exercise proper care and skill in carrying out the services concerned. I respectfully agree with those views.

1. What, then, were Plaintiff’s specific allegations of fault on the part of Third Defendant? And what were Plaintiff’s specific allegations as to the causal nexus between Third Defendant’s fault and the circumstances of the insurance claim payments?

1. The answer is that there were no such allegations in Plaintiff’s 15-page Amended Statement of Claim. All that was alleged about so-called fault were the various matters set out in paragraph [5] above. They are not allegations of fault but allegations of various services and other responsibilities—but it was not alleged in that pleading that Third Defendant performed them defectively or negligently or in any other such way.

1. In AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 217 [112], the High Court said that “[p]arties have choices as to what claims are to be made and how they are to be framed.”

1. Plaintiff’s counsel made various submissions against Third Defendant, including (a) failing to go to and perform his duties at the building sites and (b) enabling OPD Pty Ltd to obtain (and allowing it to use) his building licence to carry out the building work. But they were submissions. They were not alleged in the pleading. If those points (and the others which were advanced in final submissions) were intended to be the basis of Plaintiff’s case, they should have been alleged squarely in the statement of claim—the first of which was filed some 18 months before the trial.

1. In that regard, the High Court said the following in Dare v Pulham (1982) 148 CLR 658, 664:

“Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial,”

and the present case was not such a case—

“the relief which may be granted to a party must be founded on the pleadings.”

1. Plaintiff failed to allege or to prove specific fault (as that term is recognised in law) on the part of Third Defendant. That was the only basis for its claim against him. Its case on liability fails. Plaintiff’s claim must therefore be dismissed, with costs.