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Samimi v Queensland Building and Construction Commission

Samimi v Queensland Building and Construction Commission

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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 2012

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane – [2014] QDC 198

DELIVERED 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 made

ORDERS:

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, applied

COUNSEL:

D G Clothier QC, with P A Ahern, for the appellant
B E Codd for the respondent

SOLICITORS:

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…

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: [2015] QCA 106
Decision Date: 19 June 2015

CaseChat Overview and Summary

In the appeal of Samimi v Queensland Building and Construction Commission, the appellants, directors of a builder corporation, contested the Queensland Building and Construction Commission's (QBCC) recovery of $400,000 from them, which was paid to the building owner under a statutory insurance scheme due to the builder's defective work. The QBCC sought recovery pursuant to s 71(1) of the Act, which allows for the recovery of payments made on a claim under the insurance scheme. The appellants argued that the payment was erroneous and not properly made under the scheme, which they contended was a justiciable issue. The primary judge had granted summary judgment in favor of the QBCC, finding no real prospect of success for the appellants' defence and no need for a trial. The court was required to determine if the primary judge erred in concluding there was no factual dispute necessitating a trial, and if the appellants' defence that the payment was erroneous and not a valid claim under the scheme was justiciable.

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

The appellants appeal that decision. At issue is whether the primary judge erred in finding there was no factual dispute requiring a trial, and that the appellants’ grounds for defence of the claim, namely that the payment had been made in error and was not a payment properly made on a claim under the Insurance Scheme, was not justiciable under s 71(1) of the Act.Background In 2007, the respondent received a claim from the owner of two new residential dwellings constructed at St Lucia. The construction work had been commenced following entry into a residential building contract between the owner and the builder on 20 November 2006. The appellants were the directors of the builder, which was a corporation. The date for practical completion of the project under the contract was 13 April 2008. However, in the course of the work, relations between the owner and the builder deteriorated. By July 2007, the owner had delivered a notice of intention to terminate the contract. The owner delivered a notice of termination on 10 August 2007. The builder also delivered a notice of termination dated 30 August 2007, having delivered a notice of intention to terminate the contract dated 13 August 2007. In October 2007, the respondent’s inspector prepared reports in relation to the properties. These reports identified items of defective work which, by notices dated 13 December 2007, the respondent required the builder to rectify. The respondent subsequently advised the builder, by letter dated 15 February 2008, that the defective work had not been satisfactorily rectified by the builder. By further letter dated 22 February 2008, the respondent advised the builder it had determined the contract had been validly terminated, for reasons other than the owner’s fault, allowing a claim for non-completion under the statutory insurance scheme. The owner obtained a Quantity Surveyor’s report in relation to completion of the project. That report, dated 19 June 2009, revealed the cost to complete each building was $560,000.00, making the total cost to complete the residences $1,120,000.00. This was based on an assessment that the total construction cost for each property was $750,000.00, and that the market value of the builder’s work on each building was $190,000.00. On 5 September 2011, QCAT determined, in a proceeding between the owner and the respondent, that the maximum amount payable in respect of each residence under the statutory insurance scheme was $200,000.00, for a total of $400,000.00 for both residences. The respondent subsequently paid to the owner $400,000.00. That payment was made on 10 November 2011.The proceeding On 2 April 2012, the respondent filed a notice of claim seeking recovery from the appellants of the amount of $400,000.00 it had paid to the owner under the statutory insurance scheme. Its claim for recovery was pursuant to ss 71(1) and 111C of the Act. Relevantly, s 71(1) provides:“(1)If the authority makes any payment on a claim under the insurance scheme, the authority may recover the amount of the payment as a debt, from the building contractor by whom the relevant residential construction work was, or was to be, carried out or any other person through whose fault the claim arose.”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The appellants submitted to the primary judge that if the respondent’s determination as at 30 January 2008 was correct, the owner’s remaining liability under the contract would have been $1,165,260.00, which was more than the cost to complete the contract. On that scenario, the amount payable under the Scheme would have been nil. In making this submission, the appellants accepted this contention relied upon an un-pleaded defence that the monies paid by the respondent had not been validly paid under s 71(1) of the Act as the payment made was not a “payment on a claim under the insurance scheme”.The decision The application for summary judgment, brought pursuant to Rule 292(2) of the Uniform Civil Procedure Rules 1999 (Qld), was heard on 1 September 2014. The primary judge concluded the respondent was entitled to summary judgment in the proceeding. In reaching this conclusion, the primary judge held it was sufficient for recovery pursuant to s 71(1) of the Act for the respondent to establish it had made a payment on a claim under the Insurance Scheme. Recovery was not conditional on the correctness of the determination by the respondent to make that payment, or the correctness of any anterior step taken by the respondent leading to the decision to make that payment. In the course of his reasons, the primary judge observed he was satisfied the plaintiff’s calculations were correct, but held that even if there had been an error, that error occurred in the administration of the statutory insurance scheme and was not a factual error of such a nature that the claim was not made under the scheme.Appellants’ submissions The appellants accept that in order for the respondent to recover under s 71(1) of the Act, it is sufficient for the respondent to establish it has made a payment on a claim under the statutory insurance scheme. Once that is established, the statutory right to recover is not conditioned upon the legal quality of any interior steps taken by the respondent. However, the appellants contend the defence relied upon related to whether the payment made was “on a claim under the insurance scheme”. The appellants submit the material placed before the primary judge raised a dispute of fact. The respondent’s claim was therefore not appropriately the subject of a successful application for summary judgment. The appellants submit a factual error of such a nature that the payment was not a payment on a claim made under the statutory insurance scheme may form a valid defence to claim for recovery pursuant to s 71(1) of the Act.Respondent’s submissions The respondent submits the primary judge correctly held the unpleaded defence raised by the appellants did not have reasonable prospects of success and there was no need for a trial. Section 71(1) of the Act precludes any inquiry as to whether the respondent has complied with the policy. The respondent submits the availability of merit reviews on a range of decisions made by the respondent has been recognised as providing a sound basis for a conclusion that the legislative intention was that decisions of the respondent were not justiciable in recovery proceedings under s 71(1) of the Act.[1][1]Mahony v Queensland Building Services Authority [2013] QCA 323 at [37].

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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 2012
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Brisbane – [2014] QDC 198
DELIVERED 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 made
ORDERS:	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, applied
COUNSEL:	D G Clothier QC, with P A Ahern, for the appellant B E Codd for the respondent
SOLICITORS:	Peter Ryan Lawyers for the appellant Rostron Carlyle Solicitors for the respondent