Queensland Building and Construction Commission v Sullivan - [2016] QDC 86

[2016] QDC 86

DISTRICT COURT OF QUEENSLAND
CIVIL JURISDICTION
JUDGE DORNEY QC
No 3082 of 2012
QUEENSLAND BUILDING AND Applicant
CONSTRUCTION COMMISSION
and
SULLIVAN and OTHERS Respondents
BRISBANE
2.02 PM, FRIDAY, 8 APRIL 2016
JUDGMENT

HIS HONOUR: This application was filed on the 17^th of March 2016. As set out in the early paragraphs of the plaintiff’s outline, the plaintiff seeks a declaration that the service of the claim and statement of claim in the proceeding (effected by the plaintiff upon the third and eighth defendants on or about 26 February 2016) is taken to be effectual. The reference is to rule 371 of the Uniform Civil Procedure Rules 1999. It’s also claimed, in the alternative, that the plaintiff seeks: first, relief against the requirements to comply with rule 372, rules 442 to 447 of the Uniform CivilProcedure Rules and rule 448 of the Uniform Civil Procedure Rules; secondly, an order pursuant to rule 7, or rule 367, of the Uniform Civil Procedure Rules to extend the time for renewal of the claim against the third and eighth defendants; and, thirdly, an order pursuant to rule 24 of the Uniform Civil Procedure Rules to renew the claim and statement of claim as against the third and eighth defendants. All stand or fall together.

The trial of the proceeding was set down by McGill SC DCJ on the 20^th of November last year. The trial has been set down for eight days on and from the 26^th of April 2016, which is just over two weeks away. On the 18^th of March 2016, Andrews SC DCJ of this court adjourned this part of the application - it being one of several brought before him - to the 30^th of March 2016. On that day, I sat in applications and heard the matter initially. It was then adjourned to the 7^th of April 2016 (that is yesterday) because of the considerable affidavit material that was proffered at that time.

In brief terms, yesterday, the opening and oral evidence took about an hour and then further submissions took a further two and a-half hours.

The background of the matter is as follows. The claim and statement of claim were filed on the 8^th of August of 2012. The originating document, which was a claim in this case, was served on – except for the third and eighth defendants and except for a deceased person – the rest of the defendants relatively soon after. It was only served on the third and eighth defendants on or about the 26^th of February of this year when their solicitor accepted service pursuant to rule 115 of the Uniform Civil ProcedureRules. I’ll come to the effect, if any, of that later.

The background chronology of this matter is essentially set out in paragraphs 5, 6 and 7 of the written submissions of the third and eighth defendants. I will briefly refer to it. None…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] QDC 86
Decision Date: 8 APRIL 2016

CaseChat Overview and Summary

The Queensland Building and Construction Commission (QBCC) sought a declaration that the service of a claim and statement of claim was effective in relation to two defendants, Sullivan and others. The QBCC also sought relief from compliance with certain procedural rules and an extension of time to renew the claim against the defendants. The defendants opposed the application. The background to the matter is that the claim relates to defective work in a townhouse development built at Clear Island Waters on the Gold Coast. The defendants were alleged to be directors of companies involved in the development. The QBCC sought to serve the claim and statement of claim on the defendants in the United Arab Emirates where they resided, but attempts to do so were unsuccessful. Service was eventually effected on the defendants in Australia in February 2016. The defendants argued that the QBCC had not made reasonable efforts to serve them and that they would suffer prejudice if the claim was allowed to proceed. The court found that reasonable efforts had not been made to serve the defendants and that the defendants would suffer actual prejudice if the claim was allowed to proceed. The QBCC's application was dismissed. The court gave leave to both sets of parties to file and serve submissions on all relevant issues of costs by 4 pm on 15 April 2016.

Orders