Queensland Building and Construction Commission v Turcinovic - [2016] QDC 66

DISTRICT COURT OF QUEENSLAND

CITATION:

Queensland Building and Construction Commission v Turcinovic [2016] QDC 66

PARTIES:

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION
(applicant/plaintiff)

v

TURCINOVIC
(defendant/respondent)

FILE NO/S:

4602/15

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court in Brisbane

DELIVERED ON:

31 March 2016

DELIVERED AT:

Brisbane

HEARING DATE:

25 February 2016

JUDGE:

Kingham DCJ

ORDER:

1. The application for summary judgement is refused

2. Unless either party seeks a different order about costs, by filing and serving brief written submissions within 7 days, QBCC must pay Mr Turcinovic’s costs of the application assessed on the standard basis.

3. If a party does seek a different order, the other party may file and serve brief written submissions in response within 3 business days.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS – PLEADINGS – APPLICATION TO WITHDRAW DEEMED ADMISSIONS – where original defence pleaded non-admissions to nearly all allegations – whether explanation for doing so complies with UCPR r166 – whether deemed admissions – whether the defendant should have leave to withdraw deemed admissions.

PROCEDURE – CIVIL PROCEEDINGS – ENDING PROCEEDINGS EARLY – APPLICATION FOR SUMMARY JUDGMENT – where the plaintiff applied for summary judgment for payments made under a statutory insurance scheme – whether the defendant has no real prospect of successfully defending all or part of the plaintiff’s claim – whether there is no need for a trial.

PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – where the plaintiff paid claims by owners in respect of incomplete and defective building work carried out by the defendant – where the plaintiff commenced proceedings against the defendant to recover those amounts as a debt pursuant to s 71(1) of the Queensland Building and Construction Services Authority Act 1991 (Qld) – where defendant argues the payments are so unreasonable as not to constitute payments made on a claim under the scheme – whether the reasonableness of the payments is justiciable in proceedings pursuant to s71(1).

Civil Proceedings Act 2011 s58(3)
Queensland Building and Construction Commission Act 1991 s 71(1)
Uniform Civil Procedure Rules 1999 rr 166,188

Agar v Hyde (2000) 201 CLR 552, applied
Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352, followed
Cassatone Nominees Pty Ltd v Queenslandwide House and Building Reports Pty Ltd & Ors [2008] QCA 102, applied
Chen v ANZ Banking Group Ltd [2001] QSC 43, followed
Deputy Commissioner of Taxation v Salcedo (2005) 2 Qd R 232, applied
Mahony v QBSA [2013] QCA 323, applied
Pinehurst Nominees v Coeur de Lion Investments Pty Ltd [2012] QSC 314, followed
Turcinovic v Queensland Building Services Authority
Namour v QBSA [2014] QCA 72, applied
Samimi & Anor v QBCC [2015] QCA 106, applied

COUNSEL:

Mr N J Morgan for the Plaintiff/Applicant

Mr S Nguyen for the Defendant/Respondent

SOLICITORS:

Rostron Carlyle Lawyers for the Plaintiff/Applicant

Essen Lawyers for the Defendant/Respondent

The QBCC administers the Queensland Home Warranty Scheme, a statutory insurance scheme for residential construction. It made…

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 66
Decision Date: 31 March 2016

CaseChat Overview and Summary

The case of Queensland Building and Construction Commission v Turcinovic involved the plaintiff, the Queensland Building and Construction Commission (QBCC), who sought to recover payments made under a statutory insurance scheme from the defendant, Mr Turcinovic. The QBCC had paid claims by owners for incomplete and defective building work carried out by Mr Turcinovic. The dispute centred on whether the QBCC could obtain summary judgment for the payments and whether Mr Turcinovic's explanation for not admitting to the allegations in his defence complied with the rules, allowing him to withdraw the deemed admissions.

The court needed to decide whether Mr Turcinovic's explanation for not admitting to the allegations in his defence complied with the requirements of UCPR r166 and if the deemed admissions could be withdrawn. Additionally, the court had to determine if there was no real prospect of Mr Turcinovic successfully defending the QBCC's claim for the payments made under the statutory insurance scheme, which would justify granting summary judgment.

The court found that Mr Turcinovic's explanation for not admitting to the allegations in his defence did not comply with UCPR r166, and therefore the deemed admissions stood. The court further held that there was a real prospect that Mr Turcinovic could successfully defend the QBCC's claim for the payments made under the statutory insurance scheme, as the reasonableness of the payments was a justiciable matter. Consequently, the application for summary judgment was refused. Unless either party sought a different order about costs, the QBCC was to pay Mr Turcinovic's costs of the application assessed on the standard basis. If a party did seek a different order, the other party could file and serve brief written submissions in response within three business days.

Orders

Orders of the court

1. The application for summary judgement is refused

2. Unless either party seeks a different order about costs, by filing and serving brief written submissions within 7 days, QBCC must pay Mr Turcinovic’s costs of the application assessed on the standard basis.

3. If a party does seek a different order, the other party may file and serve brief written submissions in response within 3 business days.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Queensland Building and Construction Commission v Turcinovic [2016] QDC 66
PARTIES:	QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (applicant/plaintiff) v TURCINOVIC (defendant/respondent)
FILE NO/S:	4602/15
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court in Brisbane
DELIVERED ON:	31 March 2016
DELIVERED AT:	Brisbane
HEARING DATE:	25 February 2016
JUDGE:	Kingham DCJ
ORDER:	1. The application for summary judgement is refused 2. Unless either party seeks a different order about costs, by filing and serving brief written submissions within 7 days, QBCC must pay Mr Turcinovic’s costs of the application assessed on the standard basis. 3. If a party does seek a different order, the other party may file and serve brief written submissions in response within 3 business days.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS – PLEADINGS – APPLICATION TO WITHDRAW DEEMED ADMISSIONS – where original defence pleaded non-admissions to nearly all allegations – whether explanation for doing so complies with UCPR r166 – whether deemed admissions – whether the defendant should have leave to withdraw deemed admissions. PROCEDURE – CIVIL PROCEEDINGS – ENDING PROCEEDINGS EARLY – APPLICATION FOR SUMMARY JUDGMENT – where the plaintiff applied for summary judgment for payments made under a statutory insurance scheme – whether the defendant has no real prospect of successfully defending all or part of the plaintiff’s claim – whether there is no need for a trial. PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – where the plaintiff paid claims by owners in respect of incomplete and defective building work carried out by the defendant – where the plaintiff commenced proceedings against the defendant to recover those amounts as a debt pursuant to s 71(1) of the Queensland Building and Construction Services Authority Act 1991 (Qld) – where defendant argues the payments are so unreasonable as not to constitute payments made on a claim under the scheme – whether the reasonableness of the payments is justiciable in proceedings pursuant to s71(1). Civil Proceedings Act 2011 s58(3) Queensland Building and Construction Commission Act 1991 s 71(1) Uniform Civil Procedure Rules 1999 rr 166,188 Agar v Hyde (2000) 201 CLR 552, applied Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352, followed Cassatone Nominees Pty Ltd v Queenslandwide House and Building Reports Pty Ltd & Ors [2008] QCA 102, applied Chen v ANZ Banking Group Ltd [2001] QSC 43, followed Deputy Commissioner of Taxation v Salcedo (2005) 2 Qd R 232, applied Mahony v QBSA [2013] QCA 323, applied Pinehurst Nominees v Coeur de Lion Investments Pty Ltd [2012] QSC 314, followed Turcinovic v Queensland Building Services Authority Namour v QBSA [2014] QCA 72, applied Samimi & Anor v QBCC [2015] QCA 106, applied
COUNSEL:	Mr N J Morgan for the Plaintiff/Applicant Mr S Nguyen for the Defendant/Respondent
SOLICITORS:	Rostron Carlyle Lawyers for the Plaintiff/Applicant Essen Lawyers for the Defendant/Respondent