Queensland Building and Construction Commission v Cyclone Constructions P/L

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Queensland Building and Construction Commission v Cyclone Constructions P/L & Anor [2014] QMC 27

PARTIES:

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION
(plaintiff/ respondent)

v

CYCLONE CONSTRUCTIONS PTY LTD ACN 010240267

(first defendant/ first applicant)

and

ALLAN DAVID THOMPSON

(second defendant/ second applicant)

FILE NO/S:

M1856/14

DIVISION:

Magistrates Courts

PROCEEDING:

Claim- Application to set aside summary judgment

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

4 July 2014

DELIVERED AT:

Brisbane

HEARING DATE:

30 June 2014

MAGISTRATE:

Springer BL

ORDER:

Application refused

CATCHWORDS:

PRACTICE AND PROCEDURE – SUMMARY JUDGMENT – application to set aside judgment – whether the defendant has a real prospect of successfully defending the claim

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

Second defendant appeared for first defendant and on own behalf

SOLICITORS:

Holding Redlick for plaintiff

Second defendant for first defendant and on own behalf

Background

1. On 2 June 2014, on application by the plaintiff, summary judgment was granted against the defendants by Magistrate Payne. The defendants were not present at the hearing of the application.

1. The defendants have now applied to set aside the judgment that was ordered on 2 June 2014.  Mr Thompson, on his own behalf and on behalf of the company of which he is a director appeared without legal representation.

1. It was not clear from the defendant’s application the basis on which he made the application. I understood the defendant’s position to be that he was relying on the order being made in his absence. The respondent/plaintiff suggested two alternative bases under the Uniform Civil Procedure Rules (UCPR) which the defendant might purport to rely on, namely under rule 302 or rule 667.[1]

   [1] Sections 302 and 667 provide:

1. It is clear from the court file that the presiding magistrate was conscious of the defendant’s application for adjournment on 2 June 2014 and refused the adjournment. She also expressed the view, as noted on the court file, that the defendant had no real prospect of successfully defending the claim.

1. The defendant argues that because Magistrate Payne did not have the benefit of his submissions, he should now be able to argue against the summary judgment application. Unsurprisingly, the current application is opposed.

The explanation for the defendant’s absence at the hearing

1. The defendant tendered two statutory declarations. No objection was taken to them not being in the form of an affidavit. The defendant states in one such statutory declaration that only on the morning of 2 July 2014 (which should refer to “June”), he became aware of a scheduled hearing in Brisbane. That awareness contributed to onset of arrhythmia “sometimes caused by business stress”. The timing of his becoming aware of the hearing is contrary to evidence from the plaintiff about service by registered post of the application and affidavit in support on 15 May 2014 on each of the first defendant…