Queensland Building and Construction Commission v Turcinovic - [2017] QCA 77

SUPREME COURT OF QUEENSLAND

CITATION:

Queensland Building and Construction Commission v Turcinovic [2017] QCA 77

PARTIES:

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION
(appellant)
v
HAJRUDIN TURCINOVIC AKA HARRY TURCINOVIC
(respondent)

FILE NO/S:

Appeal No 4234 of 2016
DC No 4602 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane – [2016] QDC 66

DELIVERED ON:

28 April 2017

DELIVERED AT:

Brisbane

HEARING DATE:

12 August 2016

JUDGES:

Morrison and Philippides JJA and North J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The appeal is allowed;

2.   The orders made below be set aside and in lieu it be ordered as follows:

(a) Judgment for the appellant against the defendant in the sum of $214,464.55 together with the interest thereon from 27 October 2011 pursuant to the Civil Proceedings Act 2011;

(b)   The respondent pay the appellant’s costs of and incidental to the claim, including the application for summary judgment, to be assessed on the standard basis;

3.   The respondent pay the appellant’s costs of and incidental to the appeal to be assessed on the standard basis.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – where application by appellant for summary judgment refused – where appellant sought recovery – where respondent carried out residential construction work – where there was a policy of insurance – where appellant made payments to the respondent as payments on a claim under the insurance policy – where respondent claimed payment was not a payment under the insurance scheme – whether payment was made on a claim under the insurance scheme – whether payment made under insurance policy – whether liability of a building contractor to pay – whether judge erred in refusing summary judgment – whether the reasonableness of a payment under the scheme was a ground of liability under s 71(1) Queensland Building and Construction Commission Act 1991 – interpretation of “payment on a claim under the insurance scheme”

Queensland Building and Construction Commission Act 1991 (Qld), s 71(1)
Uniform Civil Procedure Rules 1999 (Qld), r 292

Bellgrove v Eldridge (1954) 90 CLR 613; [1954] HCA 36, cited
Dupois v Queensland Television Ltd & Ors[2015] QCA 160, cited
Lange v Queensland Building Services Authority [2012] 2 Qd R 457; [2011] QCA 58, cited
Mahony v Queensland Building Services Authority[2013] QCA 323, approved
Namour v Queensland Building Services Authority [2015] 2 Qd R 1; [2014] QCA 72, cited
Queensland Building and Construction Authority v Lifetime Securities (Australia) Pty Ltd & Anor[2014] QCA 161, cited
Queensland Building and Construction Commission v Turcinovic [2016] QDC 66, related
Queensland Building and Construction Commission v Watkins[2014] QCA 172, cited
Samimi v Queensland Building and Construction Commission[2015] QCA 106, cited
Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272; [2009] HCA 8, cited

COUNSEL:

T Matthews QC, with N…

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: [2017] QCA 77
Decision Date: 28 April 2017

CaseChat Overview and Summary

The appeal was brought by the Queensland Building and Construction Commission against Turcinovic, a building contractor, over the issue of whether payments made by the Commission to Turcinovic were covered by an insurance scheme. The Commission sought summary judgment to recover $214,464.55, which it had paid to Turcinovic under an insurance policy for residential construction work. Turcinovic argued that the payments were not covered by the insurance scheme, and thus, the Commission was not entitled to summary judgment. The primary judge refused the Commission's application for summary judgment, leading to the appeal by the Commission.

The central legal issue in the appeal was whether the payments made by the Commission to Turcinovic were indeed payments under the insurance scheme as defined by the Queensland Building and Construction Commission Act 1991. The court had to interpret the phrase "payment on a claim under the insurance scheme" and determine whether the reasonableness of a payment was a factor in assessing the liability of the building contractor. Additionally, the court needed to decide if the judge had erred in refusing summary judgment by incorrectly applying the statutory provisions.

The court found that the payments in question were indeed made under the insurance scheme as they related to claims under the insurance policy. The interpretation of "payment on a claim under the insurance scheme" did not include the assessment of the reasonableness of the payment as a ground for liability under section 71(1) of the Act. Consequently, the court concluded that the primary judge had erred in refusing summary judgment. The appeal was allowed, and judgment was entered in favour of the Commission for the amount of $214,464.55 plus interest, along with an order for costs.

Orders

Orders of the court

1. The appeal is allowed;

2. The orders made below be set aside and in lieu it be ordered as follows:

(a) Judgment for the appellant against the defendant in the sum of $214,464.55 together with the interest thereon from 27 October 2011 pursuant to the Civil Proceedings Act 2011;

(b) The respondent pay the appellant’s costs of and incidental to the claim, including the application for summary judgment, to be assessed on the standard basis;

3. The respondent pay the appellant’s costs of and incidental to the appeal to be assessed on the standard basis.

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 [2017] QCA 77
PARTIES:	QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (appellant) v HAJRUDIN TURCINOVIC AKA HARRY TURCINOVIC (respondent)
FILE NO/S:	Appeal No 4234 of 2016 DC No 4602 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Brisbane – [2016] QDC 66
DELIVERED ON:	28 April 2017
DELIVERED AT:	Brisbane
HEARING DATE:	12 August 2016
JUDGES:	Morrison and Philippides JJA and North J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The appeal is allowed; 2. The orders made below be set aside and in lieu it be ordered as follows: (a) Judgment for the appellant against the defendant in the sum of $214,464.55 together with the interest thereon from 27 October 2011 pursuant to the Civil Proceedings Act 2011; (b) The respondent pay the appellant’s costs of and incidental to the claim, including the application for summary judgment, to be assessed on the standard basis; 3. The respondent pay the appellant’s costs of and incidental to the appeal to be assessed on the standard basis.
CATCHWORDS:	PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – where application by appellant for summary judgment refused – where appellant sought recovery – where respondent carried out residential construction work – where there was a policy of insurance – where appellant made payments to the respondent as payments on a claim under the insurance policy – where respondent claimed payment was not a payment under the insurance scheme – whether payment was made on a claim under the insurance scheme – whether payment made under insurance policy – whether liability of a building contractor to pay – whether judge erred in refusing summary judgment – whether the reasonableness of a payment under the scheme was a ground of liability under s 71(1) Queensland Building and Construction Commission Act 1991 – interpretation of “payment on a claim under the insurance scheme” Queensland Building and Construction Commission Act 1991 (Qld), s 71(1) Uniform Civil Procedure Rules 1999 (Qld), r 292 Bellgrove v Eldridge (1954) 90 CLR 613; [1954] HCA 36, cited Dupois v Queensland Television Ltd & Ors[2015] QCA 160, cited Lange v Queensland Building Services Authority [2012] 2 Qd R 457; [2011] QCA 58, cited Mahony v Queensland Building Services Authority[2013] QCA 323, approved Namour v Queensland Building Services Authority [2015] 2 Qd R 1; [2014] QCA 72, cited Queensland Building and Construction Authority v Lifetime Securities (Australia) Pty Ltd & Anor[2014] QCA 161, cited Queensland Building and Construction Commission v Turcinovic [2016] QDC 66, related Queensland Building and Construction Commission v Watkins[2014] QCA 172, cited Samimi v Queensland Building and Construction Commission[2015] QCA 106, cited Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272; [2009] HCA 8, cited
COUNSEL:	T Matthews QC, with N…