SUPREME COURT OF QUEENSLAND
CITATION:
Samimi & Anor v Queensland Building and Construction Commission [2015] QCA 106
PARTIES:
KAMRAN SAMIMI
MOJGAN SAMIMI
(first appellant)
(second appellant)v
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION
(respondent)FILE NO/S:
Appeal No 9134 of 2014
DC No 1264 of 2012DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
District Court at Brisbane – [2014] QDC 198DELIVERED ON:
19 June 2015
DELIVERED AT:
Brisbane
HEARING DATE:
8 May 2015
JUDGES:
Margaret McMurdo P and Morrison JA and Boddice J
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDERS:
1. The appeal be allowed.
2. The orders below be set aside.
3. The respondent’s application for summary judgment be dismissed.
CATCHWORDS:
PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURT – CIVIL JURISDICTION – APPEAL AND NEW TRIAL – APPEAL TO SUPREME COURT – where the trial judge gave summary judgment against the appellants in favour of the respondent – where there were two requirements for summary judgment: first, that there was no real prospect of success in any defence of the claim, and second, that there was no need for a trial – where the appellant submitted that a factual dispute which was relevant to the respondent’s prospects of success in relation to the claim – where the factual dispute was not sufficiently explained such as to allow the primary judge to conclude there was no need for a trial – whether the primary judge erred in giving summary judgment
INSURANCE – where there was a statutory insurance scheme – where the respondent paid a building owner $400,000 pursuant to the statutory insurance scheme due to the defective work of a builder – where the appellants were the directors of the builder, which was a corporation – where the respondent sought to recover that payment from the appellants – whether the payment made was “on a claim under the insurance scheme”
Queensland Building and Construction Commission Act 1991 (Qld), s 71(1)
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, appliedCOUNSEL:
D G Clothier QC, with P A Ahern, for the appellant
B E Codd for the respondentSOLICITORS:
Peter Ryan Lawyers for the appellant
Rostron Carlyle Solicitors for the respondent
MARGARET McMURDO P: I agree with Boddice J’s reasons for allowing this appeal and with his Honour’s proposed orders.
MORRISON JA: I have had the advantage of reading the draft reasons of Boddice J. I agree with those reasons and the orders his Honour proposes.
BODDICE J: Part 5 of the Queensland Building and Construction Commission Act 1991 (Qld) (“the Act”) establishes a statutory insurance scheme. On 1 September 2014, summary judgment was entered in favour of the respondent against the appellants on a claim by the respondent for recovery of monies paid by it pursuant to that scheme. The appellants…
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- Case
- [2015] QCA 106
- Decision Date
CaseChat Overview and Summary
The court found that the primary judge erred in granting summary judgment without adequately considering the factual dispute raised by the appellants regarding the nature of the payment. The court held that the primary judge's conclusion that there was no need for a trial was based on an insufficient examination of the appellants' contention that the payment was erroneous and not a valid claim under the scheme. The court found that the appellants' unpleaded defence raised a genuine factual dispute which required resolution at a trial, thereby necessitating a reconsideration of the summary judgment application. The court held that the primary judge's decision did not appropriately consider the factual dispute, which was relevant to the QBCC's prospects of success in relation to the claim.
The appeal was allowed, and the orders made by the primary judge were set aside. The respondent's application for summary judgment was dismissed, and the case was remitted to the lower court for further proceedings. This decision underscored the importance of adequately considering factual disputes in summary judgment applications and highlighted the need for a thorough examination of all relevant issues before granting such judgments.
Orders
Orders of the court
1. The appeal be allowed.
2. The orders below be set aside.
3. The respondent’s application for summary judgment be dismissed.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.