Queensland Building and Construction Commission v Ward - [2014] QSC 138

SUPREME COURT OF QUEENSLAND

CITATION:

Queensland Building and Construction Commission v Ward & Anor [2014] QSC 138

PARTIES:

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION
(plaintiff)
v
RAYMOND HOULTRAM WARD
(first defendant)
STANGLADE CONSTRUCTIONS PTY LTD
ACN 107 590 321
(second defendant)

FILE NO:

BS3071 of 2012

DIVISION:

Trial Division

PROCEEDING:

Application for summary judgment

DELIVERED ON:

27 June 2014

DELIVERED AT:

Brisbane

HEARING DATE:

13 June 2014

JUDGE:

Mullins J

ORDER:

Judgment for the plaintiff against the first and second defendants for payment of the claim of $1,338,388.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – where the statutory insurer paid claims in respect of building work carried out by the company which was the building contractor – where the statutory insurer commenced the same proceeding against the building contractor and its director to recover those amounts as a debt pursuant to s 71 and s 111C Queensland Building Services Authority Act 1991 (Qld) – whether the statutory insurer established its claim in debt against the director without first proceeding against the building contractor

Queensland Building Services Authority Act 1991 (Qld), s 71, s 111C
Uniform Civil Procedure Rules 1999 (Qld), r 292

Lange v Queensland Building Services Authority [2012] 2 Qd R 457; [2011] QCA 58, considered
Mahony v Queensland Building Services Authority [2013] QCA 323, followed
Namour v Queensland Building Services Authority [2014] QCA 72, followed

Neumann Contractors Pty Ltd v Traspunt No 5 Pty Ltd [2011] 2 Qd R 114; [2010] QCA 119, considered

COUNSEL:

B E Codd for the plaintiff
P W Telford for the defendants

SOLICITORS:

Rostron Carlyle Solicitors for the plaintiff
ClarkeKann Lawyers for the defendants

The plaintiff is the statutory insurer of residential construction work under the Queensland Building Services Authority Act 1991 (Qld) (the Act), as the Act was known at all times relevant prior to the commencement of this proceeding. The second defendant was a licensed builder. The first defendant, Mr Ward, was a director of the second defendant between 12 January 2004 and 24 February 2009. Mr Ward was also a director of another company, Stanglade Properties Pty Ltd (Properties) between 20 March 2003 and 10 November 2010. Properties owned real property at Rogoona Street, Morningside which it developed into 12 townhouses for resale in 2004 to 2005. The second defendant contracted with Properties to carry out the building work for this development. It is not in dispute that the relevant statutory policy of insurance applied to the building work undertaken by the second defendant for the development.

The townhouses were sold by Properties. The owners of most of the townhouses and the body corporate made claims on the insurance policy in respect of the building work and the plaintiff made payments in respect of the claims. The total amount paid between July 2011 and July 2012 was $1,416,566.50. The plaintiff seeks to recover that amount from the second defendant under s 71 of the Act and from Mr Ward under s 111C of…

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.

Keep reading for free

Create a free CaseChat account to read Queensland Building and Construction Commission v Ward and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] QSC 138
Decision Date: 27 June 2014

CaseChat Overview and Summary

The case of Queensland Building and Construction Commission v Ward involved the Queensland Building and Construction Commission (QBCC) as the plaintiff, with Ward as the first defendant and his company as the second defendant. The dispute centred on claims paid by the QBCC, the statutory insurer, for building work conducted by Ward's company. The QBCC initiated proceedings to recover these amounts as a debt from both Ward and his company under sections 71 and 111C of the Queensland Building Services Authority Act 1991. The central legal issue was whether the QBCC could establish its claim in debt against Ward without first pursuing the building contractor, his company.

The court examined the statutory provisions and found that section 111C of the Act permitted the QBCC to directly pursue a director for debts owed by a company if the company was unable to pay. The court considered the legislative intent behind section 111C, which was to ensure that directors could not easily evade liability by placing their companies into liquidation. It was determined that the statutory insurer could indeed proceed against the director without first taking action against the company, provided the company was insolvent or unable to pay the debt. The court found that Ward, as a director, was liable for the debt owed by the company.

Consequently, the court ruled in favour of the QBCC, holding Ward and his company jointly liable for the debt of $1,338,388. The judgment mandated that Ward and his company were to pay the full amount claimed by the QBCC. The court's decision reinforced the statutory provisions that directors should not be able to escape liability through the insolvency of their companies, thereby upholding the protective measures intended for consumers and clients in the building industry.

Orders

Orders of the court

Judgment for the plaintiff against the first and second defendants for payment of the claim of $1,338,388.

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 Ward & Anor [2014] QSC 138
PARTIES:	QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (plaintiff) v RAYMOND HOULTRAM WARD (first defendant) STANGLADE CONSTRUCTIONS PTY LTD ACN 107 590 321 (second defendant)
FILE NO:	BS3071 of 2012
DIVISION:	Trial Division
PROCEEDING:	Application for summary judgment
DELIVERED ON:	27 June 2014
DELIVERED AT:	Brisbane
HEARING DATE:	13 June 2014
JUDGE:	Mullins J
ORDER:	Judgment for the plaintiff against the first and second defendants for payment of the claim of $1,338,388.
CATCHWORDS:	PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – where the statutory insurer paid claims in respect of building work carried out by the company which was the building contractor – where the statutory insurer commenced the same proceeding against the building contractor and its director to recover those amounts as a debt pursuant to s 71 and s 111C Queensland Building Services Authority Act 1991 (Qld) – whether the statutory insurer established its claim in debt against the director without first proceeding against the building contractor Queensland Building Services Authority Act 1991 (Qld), s 71, s 111C Uniform Civil Procedure Rules 1999 (Qld), r 292 Lange v Queensland Building Services Authority [2012] 2 Qd R 457; [2011] QCA 58, considered Mahony v Queensland Building Services Authority [2013] QCA 323, followed Namour v Queensland Building Services Authority [2014] QCA 72, followed Neumann Contractors Pty Ltd v Traspunt No 5 Pty Ltd [2011] 2 Qd R 114; [2010] QCA 119, considered
COUNSEL:	B E Codd for the plaintiff P W Telford for the defendants
SOLICITORS:	Rostron Carlyle Solicitors for the plaintiff ClarkeKann Lawyers for the defendants