Re Friel, Daniel Noel Ex Parte Queensland Building Services Authority

[1997] FCA 393

IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE STATE OF QUEENSLAND

No QN 1911 of 1996

RE:                
  DANIEL NOEL FRIEL

Judgment Debtor

EX PARTE:
QUEENSLAND BUILDING SERVICES
  AUTHORITY

Judgment Creditor

JUDGE MAKING ORDER:           Cooper J
WHERE MADE:  Brisbane
DATE OF ORDER:  24 February 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The application made under s 41(7) of the Bankruptcy Act 1966 (Cth) be dismissed.

1. The applicant to this application pay the respondent’s costs of and incidental to this application to be taxed if not agreed.

Note:Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.

IN THE FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE STATE OF QUEENSLAND

No QN 1911 of 1996

RE:                
  DANIEL NOEL FRIEL

Judgment Debtor

EX PARTE:
QUEENSLAND BUILDING SERVICES
  AUTHORITY

Judgment Creditor

CORAM:  Cooper J
PLACE:  Brisbane
DATE:  24 February 1997

REASONS FOR JUDGMENT

This is an application by Daniel Noel Friel under s 41(7) of the Bankruptcy Act 1966 (Cth) (“the Act”) to set aside a bankruptcy notice issued in respect of a judgment in the sum of $11,962 obtained against him by the Queensland Building Services Authority (“the Authority”) in the Queensland Building Tribunal (“the Tribunal”).

The claim arises out of a building contract entered into on 6 March 1992 between Mr Friel and the owners to construct a house at Kenmore for a sum of $135,000.  On 5 April 1993 the owners lodged a dispute notification with the Authority alleging defective work.  In May 1993 Mr Friel’s general and house building licences were cancelled due to non-payment of annual roll fees.  On 29 April 1996 the Tribunal, after a hearing in which Mr Friel represented himself, granted judgment against him in the sum of $11,962 together with interest at 12 per cent on that sum until payment.

The Tribunal found that Mr Friel was paid $2,500 by the owners to complete rectification work pursuant to a Direction to Rectify issued by the Authority but the rectification work was not completed to the satisfaction of the Authority.  The Tribunal also dealt with an allegation by Mr Friel that the owners directed a painter, Mr Sorban who was engaged by Mr Friel, to do work substantially in excess of that required to complete defective painting work and as such the additional painting work fell outside the Direction to Rectify.  The Tribunal found that Mr Friel had made a claim upon the owners for a sum of about $2,100 for the additional work done by Mr Sorban.  The Tribunal also found that the rectification work required to be done could not be completed by Mr Friel, and the Authority engaged another builder, Mr Bates, who was paid $13,212 to complete the work.

After allowing for certain credits against item 2 in Schedule 4 of the Schedules of Items for Rectification, the Tribunal gave judgment.  Mr Friel now contends that he has a claim against the owners for a sum of $33,562.  He has also sought to rely upon a letter from Statewide Management Services which suggests that the rectification work could have been completed for substantially less.  Insofar as the letter from Statewide Management Services is concerned it is qualified by the statement that the writer has not had the opportunity to inspect pre or post rectification work and that the response is based upon what can be gained from discussion, drawings and expected normal trade practices.

No satisfactory explanation has been given as to why this material was not obtained at the time of the hearing before the Tribunal, or why a challenge that the amount paid to Mr Bates was unreasonable was not brought before the Tribunal at that time.  Furthermore, no reason has been given as to why the claim of $33,562 could not have been brought forward and set off against the Authority's subrogated claim in the proceedings before the Tribunal.

On balance, I am not satisfied that there is any basis to set aside the bankruptcy notice and the application is dismissed.

I certify that this and the preceding two (2) pages are a true copy of the reasons for judgment herein of his Honour Justice Cooper.

Date:  24 February 1997

Associate

Judgment Debtor in Person

Solicitors for the Judgment

Creditor:Hopgood & Ganim

Date of Hearing:  24 February 1997

Place of Hearing:  Brisbane

Date of Judgment:  24 February 1997