Queensland Building Services Authority v Orenshaw - [2012] QSC 241

SUPREME COURT OF QUEENSLAND

CITATION:

Queensland Building Services Authority v Orenshaw & Anor [2012] QSC 241

PARTIES:

QUEENSLAND BUILDING SERVICES AUTHORITY
(plaintiff/applicant)
v
WAYNE FRANCIS ORENSHAW
(first defendant/plaintiff by counterclaim/first respondent)
SHEPHERD & DUDLEY PTY LTD ACN 068 491 494
(second defendant by counterclaim/second respondent)

FILE NO/S:

30 of 2012

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Cairns

DELIVERED ON:

31 August 2012

DELIVERED AT:

Cairns

HEARING DATE:

22 June 2012

JUDGE:

Henry J

ORDER:

Paragraph 25(b) of the defence is struck out and the first defendant has leave to re-plead it or the whole of the paragraph giving proper explanation for the denial of debt.1.

Judgment for the plaintiff on the first defendant’s counterclaim (as it relates to the plaintiff).2.

The third party claim by the first defendant against the second defendant is set aside and leave given for the first defendant to commence a separate proceeding against the second defendant in respect of the matters raised in the third party claim.3.

Leave is granted for the proceeding identified in ex PAR2 to the affidavit of Paul Andrew Rojas, sworn 19 June 2012, to be commenced in the Supreme Court.4.

Leave is granted pursuant to Uniform Civil Procedure Rules 1999 (Qld) r 78 for the plaintiff to consolidate the proceeding instituted pursuant to order 4 to this proceeding.5.

I will hear the parties as to costs.6.

CATCHWORDS:

PRACTICE – SUMMARY JUDGMENT – where the first defendant performed allegedly defective building work on two properties – where the plaintiff decided to indemnify the owners – where the plaintiff seeks recovery of that alleged debt from the first defendant – where the plaintiff seeks summary judgment – whether the first defendant has no real prospect of successfully defending the plaintiff’s claim

PRACTICE – SUMMARY JUDGMENT – where the first defendant makes a counterclaim against the plaintiff for breaches of duties of care allegedly owed by the plaintiff – where the plaintiff seeks summary judgment in respect of the counterclaim against it – whether the first defendant has no real prospect of succeeding on its counterclaim against the plaintiff

INSURANCE – BUILDING – LOSS OR DAMAGE – where the plaintiff contends the defence must fail because the validity of the process by which the owners were indemnified and thus the right of recovery from the first defendant cannot be challenged – whether the plaintiff’s decision to indemnify is unassailable in this proceeding

NEGLIGENCE – where the first defendant’s counterclaim against the plaintiff alleges the plaintiff breached a duty of care to reject the company’s licence application and caused damage – whether there was a duty of care – whether its breach caused damage – whether the damage was too remote – whether the first defendant has no real prospect of succeeding

PRACTICE – STRIKING OUT – where the plaintiff seeks in the alternative orders striking out much of the defence and the whole of the counterclaim

PRACTICE – where the plaintiff seeks orders setting aside…

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: [2012] QSC 241
Decision Date: 31 August 2012

CaseChat Overview and Summary

The case of Queensland Building Services Authority v Orenshaw involved a dispute between the Queensland Building Services Authority and the first defendant, who had allegedly performed defective building work on two properties. The plaintiff sought recovery of the debt from the first defendant, having decided to indemnify the owners. The first defendant counterclaimed against the plaintiff for breaches of duties of care allegedly owed by the plaintiff. The plaintiff sought summary judgment in respect of the first defendant's claim and counterclaim, as well as orders striking out much of the defence and the whole of the counterclaim, and setting aside the first defendant's claim against the second defendant. The plaintiff also sought to consolidate a further claim against the first defendant.

The court was required to decide whether the first defendant had no real prospect of successfully defending the plaintiff's claim, whether the plaintiff's decision to indemnify was unassailable in this proceeding, whether there was a duty of care owed by the plaintiff to reject the first defendant's licence application and whether its breach caused damage, and whether the divergence in nature between the first defendant's claim against the plaintiff and the third party claim against the second defendant was such that they should be separated. The court was also required to determine whether the same or substantially the same questions were involved in both proceedings to decide whether the plaintiff's further claim against the first defendant could be consolidated with the current proceeding.

The court found that the first defendant had no real prospect of successfully defending the plaintiff's claim as the validity of the process by which the owners were indemnified and thus the right of recovery from the first defendant could not be challenged. The court also found that the first defendant had no real prospect of succeeding on its counterclaim against the plaintiff as there was no duty of care owed by the plaintiff to reject the first defendant's licence application, and even if there was, its breach did not cause the damage claimed. The court struck out paragraph 25(b) of the defence and granted leave to the first defendant to re-plead it or the whole of the paragraph giving proper explanation for the denial of debt. The court granted judgment for the plaintiff on the first defendant's counterclaim, set aside the third party claim against the second defendant and gave leave for the first defendant to commence a separate proceeding. The court also granted leave for the plaintiff to consolidate the further claim against the first defendant with the current proceeding.

The court heard the parties as to costs and made orders accordingly. The court granted leave for the proceeding identified in ex PAR2 to the affidavit of Paul Andrew Rojas, sworn 19 June 2012, to be commenced in the Supreme Court.

Orders

Orders of the court

Paragraph 25(b) of the defence is struck out and the first defendant has leave to re-plead it or the whole of the paragraph giving proper explanation for the denial of debt.1.

Judgment for the plaintiff on the first defendant’s counterclaim (as it relates to the plaintiff).2.

The third party claim by the first defendant against the second defendant is set aside and leave given for the first defendant to commence a separate proceeding against the second defendant in respect of the matters raised in the third party claim.3.

Leave is granted for the proceeding identified in ex PAR2 to the affidavit of Paul Andrew Rojas, sworn 19 June 2012, to be commenced in the Supreme Court.4.

Leave is granted pursuant to Uniform Civil Procedure Rules 1999 (Qld) r 78 for the plaintiff to consolidate the proceeding instituted pursuant to order 4 to this proceeding.5.

I will hear the parties as to costs.6.

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 Services Authority v Orenshaw & Anor [2012] QSC 241
PARTIES:	QUEENSLAND BUILDING SERVICES AUTHORITY (plaintiff/applicant) v WAYNE FRANCIS ORENSHAW (first defendant/plaintiff by counterclaim/first respondent) SHEPHERD & DUDLEY PTY LTD ACN 068 491 494 (second defendant by counterclaim/second respondent)
FILE NO/S:	30 of 2012
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court, Cairns
DELIVERED ON:	31 August 2012
DELIVERED AT:	Cairns
HEARING DATE:	22 June 2012
JUDGE:	Henry J
ORDER:	Paragraph 25(b) of the defence is struck out and the first defendant has leave to re-plead it or the whole of the paragraph giving proper explanation for the denial of debt.1. Judgment for the plaintiff on the first defendant’s counterclaim (as it relates to the plaintiff).2. The third party claim by the first defendant against the second defendant is set aside and leave given for the first defendant to commence a separate proceeding against the second defendant in respect of the matters raised in the third party claim.3. Leave is granted for the proceeding identified in ex PAR2 to the affidavit of Paul Andrew Rojas, sworn 19 June 2012, to be commenced in the Supreme Court.4. *Leave is granted pursuant to Uniform Civil Procedure Rules* 1999 (Qld) r 78 for the plaintiff to consolidate the proceeding instituted pursuant to order 4 to this proceeding.5. I will hear the parties as to costs.**6.
CATCHWORDS:	PRACTICE – SUMMARY JUDGMENT – where the first defendant performed allegedly defective building work on two properties – where the plaintiff decided to indemnify the owners – where the plaintiff seeks recovery of that alleged debt from the first defendant – where the plaintiff seeks summary judgment – whether the first defendant has no real prospect of successfully defending the plaintiff’s claim PRACTICE – SUMMARY JUDGMENT – where the first defendant makes a counterclaim against the plaintiff for breaches of duties of care allegedly owed by the plaintiff – where the plaintiff seeks summary judgment in respect of the counterclaim against it – whether the first defendant has no real prospect of succeeding on its counterclaim against the plaintiff INSURANCE – BUILDING – LOSS OR DAMAGE – where the plaintiff contends the defence must fail because the validity of the process by which the owners were indemnified and thus the right of recovery from the first defendant cannot be challenged – whether the plaintiff’s decision to indemnify is unassailable in this proceeding NEGLIGENCE – where the first defendant’s counterclaim against the plaintiff alleges the plaintiff breached a duty of care to reject the company’s licence application and caused damage – whether there was a duty of care – whether its breach caused damage – whether the damage was too remote – whether the first defendant has no real prospect of succeeding PRACTICE – STRIKING OUT – where the plaintiff seeks in the alternative orders striking out much of the defence and the whole of the counterclaim PRACTICE – where the plaintiff seeks orders setting aside…