Queensland Building Services Authority v Samimi - [2014] QDC 198

DISTRICT COURT OF QUEENSLAND

CITATION:

Queensland Building Services Authority v Samimi & Anor [2014] QDC 198

PARTIES:

QUEENSLAND BUILDING SERVICES AUTHORITY
(plaintiff)
v
KAMRAN SAMIMI
(defendant)
MOJGAM SAMIMI
(second defendant)

FILE NO:

1264 of 2012

DIVISION:

Civil

PROCEEDING:

Application for summary judgment

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

Judgment delivered ex tempore 1 September 2014

DELIVERED AT:

Brisbane

HEARING DATE:

1 September 2014

JUDGE:

Everson DCJ

ORDER:

1. Summary judgment for the plaintiff against the defendants for payment in the sum of $481,369.83.

2. The defendants to pay the plaintiff’s costs of and incidental to the proceeding on the standard basis.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – where the plaintiff paid claims in respect of incomplete and defective building work carried out by the defendant – where the plaintiff commenced proceedings against the defendant to recover those amounts as a debt pursuant to ss 71(1) and 111C of the Queensland Building Services Authority Act 1991 (Qld) – where the plaintiff seeks summary judgment – whether the defendant has no real prospect of successfully defending all or part of the plaintiff’s claim.

Queensland Building and Construction Commission Act 1991 (Qld) ss 71(1), 111C.

Uniform Civil Procedure Rules 1999 (Qld) r 292.

Mahony v Queensland Building Services Authority [2013] QCA 323, applied.

Namour v Queensland Building Services Authority [2014] QCA 72, applied.

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

COUNSEL:

G I Thompson for the plaintiff

P Ahern for the defendant

SOLICITORS:

Rostron Carlyle for the plaintiff
Peter Ryan Lawyers for the defendant

This is an application for summary judgment pursuant to rule 292 of the Uniform Civil Procedure Rules 1999 (“UCPR”).

Essentially, if the Court is satisfied that the defendant has no real prospect of successfully defending all or part of the plaintiff’s claim, and that there is no need for a trial of the claim or part of the claim, the Court may give judgment for the plaintiff against the defendant for all or part of the plaintiff’s claim.

The dispute before me concerns a proceeding by the plaintiff to recover $400,000 together with interest and costs that was paid out pursuant to an insurance policy in respect of domestic building work. The plaintiff was responsible for administering the statutory scheme of insurance for incomplete and defective residential construction work in Queensland pursuant to the Queensland Building and Construction Commission Act 1991 (“the QBCCA”).

The defendants are the former directors of a building company, Spectrum House & Land Pty Ltd (“the builder”), which had liquidators appointed on or about 24 February 2010, and which was deregistered on or about 13 August 2011. The builder undertook construction of dwellings at 29 and 31 Macquarie Street, St Lucia, pursuant to a written contract entered into on or about 20 November 2006. Disputes between the builder and the owner arose in the course of construction, and the two dwellings the subject of the contract were…

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: [2014] QDC 198
Decision Date: 1 September 2014

CaseChat Overview and Summary

The plaintiff, Queensland Building Services Authority, instituted proceedings against the defendant, Samimi, to recover monies paid in respect of claims under a statutory insurance scheme. The claims related to incomplete and defective building work carried out by Samimi. The Authority sought summary judgment against Samimi to recover the amounts paid, pursuant to sections 71(1) and 111C of the Queensland Building Services Authority Act 1991 (Qld). The central legal issue before the court was whether Samimi had any real prospect of successfully defending the claim in whole or in part.

The court considered whether Samimi had a real prospect of successfully defending the claim. It was noted that the statutory scheme under which the Authority paid the claims required builders to insure against liabilities for defective work. Given that Samimi had not disputed the claims or the amounts paid, and there was no evidence suggesting that the claims were invalid, the court concluded that Samimi had no real prospect of successfully defending the claim. The court found that the statutory obligations were clear, and the Authority’s actions were in accordance with those obligations. There was no reasonable basis upon which Samimi could defend against the claim.

Accordingly, the court granted summary judgment in favour of the Authority. The defendant was ordered to pay the plaintiff’s costs of and incidental to the proceeding on the standard basis. The specific sum of $481,369.83 was awarded to the plaintiff. This sum represented the total amount the Authority had paid out in relation to the defective building work carried out by Samimi.

Orders

Orders of the court

1. Summary judgment for the plaintiff against the defendants for payment in the sum of $481,369.83.

2. The defendants to pay the plaintiff’s costs of and incidental to the proceeding on the standard basis.

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 Samimi & Anor [2014] QDC 198
PARTIES:	QUEENSLAND BUILDING SERVICES AUTHORITY (plaintiff) v KAMRAN SAMIMI (defendant) MOJGAM SAMIMI (second defendant)
FILE NO:	1264 of 2012
DIVISION:	Civil
PROCEEDING:	Application for summary judgment
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	Judgment delivered ex tempore 1 September 2014
DELIVERED AT:	Brisbane
HEARING DATE:	1 September 2014
JUDGE:	Everson DCJ
ORDER:	1. Summary judgment for the plaintiff against the defendants for payment in the sum of $481,369.83. 2. The defendants to pay the plaintiff’s costs of and incidental to the proceeding on the standard basis.
CATCHWORDS:	PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – where the plaintiff paid claims in respect of incomplete and defective building work carried out by the defendant – where the plaintiff commenced proceedings against the defendant to recover those amounts as a debt pursuant to ss 71(1) and 111C of the Queensland Building Services Authority Act 1991 (Qld) – where the plaintiff seeks summary judgment – whether the defendant has no real prospect of successfully defending all or part of the plaintiff’s claim. Queensland Building and Construction Commission Act 1991 (Qld) ss 71(1), 111C. Uniform Civil Procedure Rules 1999 (Qld) r 292. Mahony v Queensland Building Services Authority [2013] QCA 323, applied. Namour v Queensland Building Services Authority [2014] QCA 72, applied. Queensland Building Services Authority v Orenshaw & Anor [2012] QSC 241, applied.
COUNSEL:	G I Thompson for the plaintiff P Ahern for the defendant
SOLICITORS:	Rostron Carlyle for the plaintiff Peter Ryan Lawyers for the defendant