Queensland Building Services Authority v Namour (No 2)

[2013] QDC 204

DISTRICT COURT OF QUEENSLAND

CITATION:

Queensland Building Services Authority v Namour & Ors (No 2) [2013] QDC 204

PARTIES:

QUEENSLAND BUILDING SERVICES AUTHORITY

(plaintiff)

v

GUS NAMOUR

(first defendant)

and

THOMAS JOHN SEAN FITZPATRICK

(second defendant)

and

LING HUA ZHAO

(third defendant)

and

DEAN HAMMOND BRUCE

FILE NO/S:

1664/2011

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

9 September 2013

DELIVERED AT:

Brisbane

HEARING DATE:

21 August 2013

JUDGE:

Reid DCJ

ORDER:

The applicant/plaintiff pay the third defendant’s costs of and incidental to the application to be assessed on the standard basis.

CATCHWORDS:

Uniform Civil Procedure Rules – Rule 299 – Rule 681 – Rule 693

COUNSEL:

N Morgan for the Plaintiff

A Freeman for the First Defendant

B Whelan for the Third Defendant

SOLICITORS:

Rostron Carlyle Solicitors for the Plaintiff

A.J. Torbey & Associates for the First Defendant

Hatzis Lawyers for the Third Defendant.

1. The third defendant seeks an order that the plaintiff pay the third defendant’s costs of and incidental to the plaintiff’s unsuccessful application for summary judgment, to be assessed on the standard basis.

1. The reasons for refusing the application are set out in the earlier published judgment (Queensland Building Services Authority v Namour & Ors (No 1) [2013] QDC 200).

1. The third defendant relies on the provisions of r 299, 681 and 693 of the Uniform Civil Procedure Rules. Furthermore, he submits the plaintiff was made aware of the third defendant’s contentions about the correct interpretation of s 111C of the Queensland Building Services Authority Act on a number of occasions from as early as April and May 2012.  He submits that in that circumstance, to have brought the application against the third defendant was reckless as it was doomed to fail.  In further submissions in reply to the plaintiff’s submissions it was said that it was “plain to the plaintiff… that the third defendant had an arguable defence.”

1. The plaintiff in opposing the order submitted that I had in my reasons dismissed the application only on the basis that the third defendant’s position was “reasonably arguable” and that I did not express a “firm view on the interpretation of the phrase” in s 111C; namely “building work the subject of the claim”. It submitted costs should in that circumstance be reserved or alternatively be the plaintiff’s and/or the third defendant’s costs in the cause.

1. In my view, whilst, as the appellant’s solicitors say in their submissions, I found only that the third defendant had an arguable defence there is in my view nothing to displace the ordinary rule as to costs set out in r 299(1) and r 681 of the UCPR. In my view, the plaintiff/applicant ought reasonably to have been aware that it was at least reasonably arguable that the phrase “building work the subject of the claim” when used in s 111C(6) referred to building work, in this case, defectively performed such that only a director at the time the work was so performed or thereafter a director would be liable under that section and not a director when some work, but not defective work “the subject of the claim” was performed.

1. In this circumstance I order that the applicant/plaintiff pay the third defendant’s costs of and incidental to the application to be assessed on the standard basis.