Queensland Building and Construction Commission v Leon

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Queensland Building and Construction Commission v Leon [2014] QMC 26

PARTIES:

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(plaintiff)

v

NELSON WAYNE LEON

(defendant)

FILE NO/S:

M3015/14

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:

28 July 2014

DELIVERED AT:

Brisbane

HEARING DATE:

30 June 2014

MAGISTRATE:

Springer BL

ORDER:

Application dismissed.

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:

NJ Morgan (solicitor) appeared for plaintiff

L Humphries (solicitor) appeared for defendant

SOLICITORS:

Rostryn Carlisle Solicitors for plaintiff

JKR 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 at relevant times was a director of Vertigrated Group Pty Ltd (formerly Vertigrated Contracting Pty Ltd) (“the company”). It is not in dispute that in March 2011, residential construction work was done at 1957 -1967 Mount Cotton Road, Cornubia. Because of dissatisfaction with aspects of that construction work, the owners of the Cornubia property made a claim under the statutory insurance scheme. In response to that claim, the Authority made a payment on the insurance claim. The plaintiff pleads that the company is indebted to the Commission for the amount of the payment by virtue of section 71(1) of the QBCC Act. Further, pursuant to section 111C(6) of the QBCC Act, the company’s liability has attached to the defendant.

1. The defendant has defended the Claim pleading, among other matters, a denial that the payment (if made) was validly made because the plaintiff did not make a valid decision within the meaning of the QBCC Act and consequently, the plaintiff was without power to make payment to the owners; further the defendant denies that the payment…