Queensland Building Services Authority v Markby & Nalara Pty Ltd

[2011] QDC 223

[2011] QDC 223

DISTRICT COURT

CIVIL JURISDICTION

JUDGE SAMIOS

No 87 of 2011

QUEENSLAND BUILDING SERVICES AUTHORITY	Plaintiff
and
SIMON JOHN MARKBY AND NALARA PTY LIMITED	Defendants

SOUTHPORT

DATE 26/08/2011

ORDER

HIS HONOUR: The plaintiff is the statutory insurer pursuant to the Queensland Building Services Authority Act 1991. Between 16 June 2008 and 9 March 2010 the plaintiff claims to have received six complaints alleging defective building work at a property at 85 Bayview Street, Runaway Bay, where six residential units were previously constructed.

The various affidavits that have been filed, and some of leave this morning, show the first defendant did work, or arranged for work to be done to rectify these defects.  I imply from the evidence before me, that what he did was not considered sufficient by the licencing authority.

Initially, when the claim was commenced, it was for a sum of $261,117.50, a debt due and owing, pursuant to section 71 of the Queensland Building Services Authority Act. The claim was made against the first defendant as the building contractor, and against the second defendant, as a director of the first defendant.

Judgment by default of the first defendant filing a notice of intention to defend within time, was entered and it was dated, 24 March 2011. the claim, having commenced on 18 February 2011.

The parties today have, by consent, agreed for that default judgment to be set aside.  It was a default judgment entered against the first defendant.

The second defendant has filed a notice of intention to defend and a defence, however, the parties have, in my opinion, engaged in a traverse of allegation, upon allegation.  There have been affidavits filed swearing as to the facts and submissions filed as to what is said to be the legal position.

The plaintiff seeks to amend the claim, because when the claim was commenced, it related to four complainants, whose properties were rectified.  Whereas it appeared there were two other complainants, whose properties were subsequently rectified and whose claims were sought to be brought forward in the claim.  That makes a total of six complainants and the claim has risen to something in the order of $460,000, subject to leave of the Court.

The defendants oppose leave being granted to amend the claim and oppose the amendments being sought to be made by a proposed amended statement of claim.  The fact is a further amended statement of claim was filed herein on 23 August 2011, and it seems to be the document that has been addressed today during submissions.

The first defendant and the second defendant though, seek not only to oppose the claim and the amended statement of claim, but to strike out the proposed amended statement of claim on the grounds that the causes of action proposed therein are totally hopeless and fail to disclose a reasonable course of action, and the document seeks to introduce further causes of actions and the pleadings fail to comply with the rules of the Court, and the pleadings are vague and embarrassing, and they are an abuse of the process of the Court.

I consider that the matters that are being traversed are matters that ought to be resolved at trial and cannot be resolved on an interlocutory application.  They are in dispute and are not accepted, as it was submitted by the defendants, they have been accepted and are unassailable. 

In my opinion, the further amended statement of claim that was filed herein on the 23rd of August 2011, adequately pleads the causes of action and the material facts upon which the plaintiff relies upon.  The matters that have been said to be the faults in the pleading, are matters in my opinion, that ought to be pleaded by way of defence, so that the issues can be defined and addressed.  No doubt, a reply would also seem to be a relevant pleading in this case, in due course.

I do not agree that the causes of action proposed in the document are totally hopeless and I do not agree that it fails to disclose a reasonable course of action.  I do agree that further causes of action are sought to be introduced.  Initially, there was a cause of action based on four complaints.  I consider that the two further complaints are further causes of action.  However, I consider that leave ought to be granted, as the claims are still, in my opinion, within time.  That is, leave ought to be granted to amend the claim.

I do not consider the pleadings failed to comply with the rules of the Court, and I do not consider the pleadings are vague and embarrassing.  The pleadings are complex but call for a response by way of defence.  I do not agree that the proposed amended statement of claim is an abuse of the process of the Court.  Therefore, I give leave to the plaintiff, to amend the claim, filed on 18 February 2011, in the form of the amendments proposed in the exhibit to the affidavit of Paul Andrew Rojas, filed the 1st of July 2011.

I dismiss the first and second defendants application to oppose and strike out the proposed amended statement of claim, filed herein on the 27th of July 2011. 

I order the first defendant and second defendant, to file and serve a defence within 28 days of today.  I order the plaintiff to file and serve a reply, if any, to the defendants defence, within 21 days thereafter.

I will hear the parties on the question of costs of these applications.

Yes, Mr Codd?

MR CODD:  Thank you, your Honour.  In my submission, there's no question that the standard costs should apply, given the success of the plaintiff in this proceeding.  Usually, the plaintiff would pay the costs of the standard basis of the application for leave to amend.  But, given the nature of the amendments and the fact that there's really no substantive difference between the amended statement of claim and the further amended statement of claim, that was really done in response to complaints made, which ordinarily would have been dealt with under Rule 444. 

That the order should be that the costs of the plaintiff's application be in the cause.  In relation to the strike out application, your Honour, I would press for indemnity costs on the principles set out in Colgate Palmolive v. Cussins. 

There has been an enormous amount of largely irrelevant to the issues, legal argument, presented by the defendants, which whilst one might suggest that the plaintiff could have perhaps not responded to, it is difficult, particularly in the place of a statutory body, not to respond squarely to allegations put against it.

In my submission, despite the somewhat inflammatory statements made to the contrary, all the plaintiff had done in this instance is discharge its duties a model litigant, and respond as fully and comprehensively as it could, as promptly as it could.  I've got nothing further to add on that, your Honour.

HIS HONOUR:  Yes.  Mr Jacobs?

MR JACOBS:  Your Honour, firstly, in regard to the question of costs, my learned friend seeks an indulgence.  That indulgence should carry costs.  It's taken him about four attempts to get his statement of claim in order. 

HIS HONOUR:  Yes. 

MR JACOBS:  In my submission, the plaintiff should pay the costs of the application to amend.  Alternatively, my submission is, your Honour, that costs of both applications, which are interwoven, should be costs in the cause.  It may well be, your Honour, that at the trial, which your Honour envisages, it can be shown that the claim is totally useless on the grounds that I have mentioned.  The trial Judge may have something to say about that.  Perhaps your Honour will deal with that first, before I make one further application.

HIS HONOUR:  Well, sorry, have you dealt with both sets of costs?

MR JACOBS:  Yes.  Yes, your Honour.  They are interwoven.

HIS HONOUR:   Yes.  All right.

Yes, well in relation to costs, that with respect to the application to amend the claim that ought not to have been opposed, and I therefore order the first defendant and second defendant pay the plaintiff's costs of that application to amend, on the standard basis.

With respect to the costs of the strike out application, I consider they ought to follow the event and I order the first defendant and the second defendant to pay the plaintiff's costs of the application to strike out, on the standard basis, not withstanding it was submitted that I ought to order they be on the indemnity basis.

Yes, Mr Jacobs?

MR JACOBS:  One other matter, would your Honour suspend your Honour's order for say, 21 days?  There will probably be instructions, probably, to test your Honour's judgment.

HIS HONOUR:  Yes.  All right. 

MR JACOBS:  And I don't want to have to incur the‑‑‑‑‑

HIS HONOUR:  What do you say, Mr Codd?

MR JACOBS:  ‑‑‑‑‑costs of pleading where that will probably be the position.

HIS HONOUR:  Yes.  Thank you, Mr Jacobs.  Yes, Mr Codd?

MR CODD:  Your Honour, it is well established law in Queensland that the successor is entitled to enjoy the fruits of that success.  This matter has been subject to a fitful staff.  There's no reason at all for the defendants not to enter a defence and for the matter to proceed.  There's no proper basis for a stay on the judgment.

HIS HONOUR:  Yes.  I'm not prepared to order a stay of my orders.  I consider the plaintiff is entitled to have the orders performed in the times that I have allowed and notwithstanding what might be the first defendant and second defendants possible instructions, with respect to testing the matter elsewhere.

Nothing further?

MR CODD:  No, your Honour.

MR JACOBS:  Your Honour, I'm not quite sure what the Queensland practice is.  The New South Wales practice is ask the Court giving the judgment for leave to appeal before one seeks leave in the Court of Appeal.  If that isn't the practice over here I would move for that.

HIS HONOUR:  Yes.  And it's not the practice here to give leave to appeal, as I understand it.  Mr Codd?

MR CODD

:  I'd need to check the District Courts
Act, your Honour. But, my recollection is on strict questions of law there's a notice of right of appeal to the Court of Appeal. That's my recollection. Ultimately, the matter is regulated expressly by the District Courts Act. But, not doubt there's a model litigant if it's necessary to come back to get leave from the District Court, which I don’t think it is normally the appellant body which grants leave.

HIS HONOUR:  Yes.  I'm not in a position to give leave, I don't think, I - and in the circumstances, would not give it.

MR JACOBS:  As your Honour pleases.

HIS HONOUR:  Yes.  Thank you.

MR CODD:  Thank you, your Honour.

HIS HONOUR:  Adjourn the Court, Mr Bailiff.

THE COURT ADJOURNED