Queensland Building Services Authority v Orenshaw

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.