Court of Appeal

Queensland Building and Construction Commission v Lifetime Securities (Australia) Pty Ltd & Anor [2014] QCA 161 (13/8192) Margaret McMurdo P, Gotterson JA and Ann Lyons J 18 July 2014

Full-text: QCA14-161.pdf

Catchwords

PROFESSIONS & TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – where the respondent was contracted to build a residential property – where the property owner made claims against the respondent under the statutory insurance scheme, pursuant to the Queensland Building and Construction Commission Act 1991 (“the Act”) – where the applicant’s inspection of the property confirmed the defects – where the applicant provided written notice giving the respondent 28 days to rectify the defects – where the respondent did not respond to the written notices – where the applicant invited tenders to carry out the rectification works – where the applicant filed a claim in the District Court seeking costs of the rectification work from the respondent – where the respondent filed an application seeking dismissal of the applicant’s claim in light of McNab Constructions Australia Pty Ltd v QBSA – where the learned District Court judge entered judgment against the applicant on the basis that their case as pleaded had no real prospects of success – whether the applicant’s right to recovery was conditioned by compliance with the Act

Summary Notes

Application for Leave s 118 DCA (Civil) – where the respondent was contracted to build a residential property – where the property owner made claims against the respondent under the statutory insurance scheme, pursuant to the Queensland Building and Construction Commission Act 1991 (“the Act”) – where the applicant’s inspection of the property confirmed the defects – where the applicant provided written notice giving the respondent 28 days to rectify the defects – where the respondent did not respond to the written notices – where the applicant invited tenders to carry out the rectification works – where the applicant filed a claim in the District Court seeking costs of the rectification work from the respondent – where the respondent filed an application seeking dismissal of the applicant’s claim in light of McNab Constructions Australia Pty Ltd v QBSA – where the learned District Court judge entered judgment against the applicant on the basis that their case as pleaded had no real prospects of success – whether the applicant’s right to recovery was conditioned by compliance with the Act – where QBCC in summary, submitted that the right to recover conferred on it by s 71(1) is exercisable upon the happening of events to which it is expressly referenced, that is to say, the making of a payment of a claim under the insurance scheme – where the argument maintains that that right is not qualified or conditioned by reference to compliance by it with provisions in Part 6 – where in support of its argument, QBCC relied upon the decision of this Court in Mahony v Queensland Building Services Authority [2013] QCA 323 – where the principles expressed in those reasons are adhered to – where in Mahony special leave was refused to the High Court of Australia – where the decision in Mahony supports the view that the right to recover conferred by s 71(1) is not conditioned upon the legal quality of any step that QBCC may have taken antecedent to a decision to make payments under the scheme – where the learned primary judge acted upon an erroneous proposition of law and further erred in holding that QBCC’s claim was bound to fail – where sufficient facts were set out in specified paragraphs of the statement of claim to plead a claim for recovery under s 71(1) – where several judgments of relevance to the legal issues raised in both the summary judgment application and the appeal were published after the summary judgment application had been determined and the application for leave to appeal to this Court had been filed. Grant leave to appeal. Appeal allowed. Specified orders below set aside. Dismiss the application for summary judgment. Direct the appellant to file and serve an amended statement of claim within 28 days of the publication of these orders. Procedural costs orders.

Uniform Civil Procedure Rules considered

Rule 293 — Summary judgment for defendant