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Samimi & Anor v Queensland Building and Construction Commission [2015] QCA 106 (14/9134) Margaret McMurdo P and Morrison JA and Boddice J 19/06/2015

Full-text: QCA15-106.pdf

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”

Summary Notes

General Civil Appeal – Procedure – Summary Judgment – where 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 Part 5 of the Queensland Building and Construction Commission Act 1991 (Qld) (“the Act”) under a statutory insurance scheme – 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 – where r 292 of the Uniform Civil Procedure Rules 1999 (Qld) contains two requirements for giving summary judgment: firstly, that there is no real prospect of success in any defence of the claim; secondly, that there is no need for a trial – where the consideration of whether a payment sought to be recovered under s 71(1) of the Act was a valid payment under the scheme does not merely raise an element of the respondent’s administrative processes anterior to that payment – where that issue raises whether the payment was made “on a claim under the insurance scheme”, a condition for recovery of the payment under s 71(1) of the Act – where the factual dispute was not sufficiently explained such as to allow the primary judge to conclude there was no need for a trial – where a trial may well have resulted in a finding the respondent was not entitled to recover the amount claimed in the proceeding and that would be a valid defence to the respondent’s claim for recovery under s 71(1) of the Act. Appeal allowed. Orders below be set aside. Respondent’s application for summary judgment be dismissed.

Uniform Civil Procedure Rules considered

Rule 292 — Summary judgment for plaintiff