Queensland Building Services Authority v Mahony

DISTRICT COURT OF QUEENSLAND

CITATION:

Queensland Building Services Authority v Mahony [2013] QDC 27

PARTIES:

QUEENSLAND BUILDING SERVICES AUTHORITY
(Plaintiff)

AND

GERARD WILLIAM MAHONY
(Defendant)

FILE NO:

1996/2009

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

12 February 2013

DELIVERED AT:

Mt Isa

HEARING DATE:

4 September 2012

JUDGE:

Reid DCJ

ORDER:

Judgment for the Plaintiff against the Defendant in the sum of $193,431.28 as a debt due and owing pursuant to s71 of the Queensland Building Services Authority Act.

Further order that the Plaintiff recover from the Defendant interest at the rate of ten per cent per annum  on the sums set out in [7] hereof from the dates when such sums were paid by the Plaintiff, up to 12 February 2013, calculated to the sum of $115,357.92.

Further order that the Defendant pay the Plaintiff’s costs of and incidental to the action to be agreed or, failing agreement, to be assessed.

CATCHWORDS:

Application for summary judgment – UCPR - Queensland Building Services Authority Act

SOLICITORS:

Rostron Carlyle Solicitors for the Plaintiff

Defendant in person, assisted by P.J Cosgrove (Solicitor)

Introduction

1. In this matter the Plaintiff has applied for summary judgment in a claim for $193,431.28 said to be a debt owing by the Defendant pursuant to the provisions of s 71 of the Queensland Building Services Authority Act 1991 (“the Act”).

1. The action is, for proceedings in which summary judgment is being sought, a comparatively old one.  It was commenced in 2009.  The pleadings have taken a somewhat tortuous route.  Before me the Plaintiff relied on its further Amended Statement of Claim and the respondent on its fourth amended defence.  I shall refer to those documents hereafter as the Statement of Claim and the defence.

Summary judgment provisions

1. Rule 292 of UCPR provides:

“(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 approach to construction of this rule was considered by the Court of Appeal in Bolton Properties Pty Ltd v JK Investments (Australia) Pty Ltd [2009] QCA 135. If one leaves to one side the debate in that case over whether the phrase “bound to fail” equates with “no real prospect of succeeding” the case nevertheless demonstrates that the power to give summary judgment is an exceptional remedy, only granted in clear cases where it is obvious that the applicant is entitled to judgment.

1. In that case Chesterman JA cited with approval the following passage from the judgment of Holmes J…