Appeal from summary judgment – statutory insurance scheme – Queensland Building and Construction Commission Act 1991 (Qld) – Uniform Civil Procedure Rules 1991 (Qld)
Contractors may avoid liability to Queensland Building and Construction Commission (QBCC) for recovery under the statutory insurance scheme provided in the Queensland Building and Construction Commission Act 1991 (Qld) (Act) where QBCC has paid out under the policy in error.
Samimi (appellant) was the director of a builder that in 2006 was engaged in construction work on two buildings. Relations between Samimi and the owner of the buildings broke down, and in 2007 the owner terminated both contracts and made a claim to the QBCC (respondent) under the insurance scheme established by Part 5 of the Act.
The respondent advised the appellant that the owner's claim was valid and, in 2011 paid the owner
$400,000 in accordance with the policy. The respondent subsequently filed a notice of claim seeking summary judgement for recovery of the $400,000 from the appellant under section 71(1) of the Act. In response, the appellant pointed to a factual discrepancy regarding the amount of the owner's remaining liability in the respondent's submissions, claiming that if the owner's remaining liability in each instance exceeded the amounts properly payable under Part 5 of the Act, then any payment made was not made 'on claims under the insurance scheme'.
The primary judge granted summary judgment in favour of the respondent, finding that (among other things) there was no factual dispute requiring a trial and that a decision made by the respondent to make a payment under the insurance scheme was not justiciable. The appellant appealed the trial judge's decision on the grounds that the material presented to the trial judge raised a dispute of fact.
Boddice J allowed the appeal on the grounds that the matter did not meet the test for summary judgment in rule 292 of the Uniform Civil Procedure Rules 1991(Qld).
His Honour considered that the appellant had raised legitimate questions of fact, and indeed the factual inconsistency raised in the respondent's own materials was of great significance to the appellant's application.
His Honour did not accept the respondent's submissions that section 71(1) of the Act precludes judicial inquiry as to whether the respondent complied with the policy. Instead his Honour found that recovery under section 71(1) of the Act still required that the QBCC makes a valid payment in accordance with the terms of the policy. Therefore, where there is reason to question whether a payment under the policy was made in accordance with the terms of the policy, matters sought to be raised by way of defence could be justiciable under section 71(1) of the Act.