Australia: Contesting recovery proceedings brought by the QBCC – a rare success story

Insurance Quarterly Newsletter

Civil procedure – summary judgment – insured granted order for summary judgment in action for recovery of payment made to home owners under statutory building and construction insurance scheme – insured appeals on basis that payment not made in accordance with Act – appeal allowed – whether insurer complied with Act in making payments to home owners is a justiciable issue for trial

In Samimi & Anor v Queensland Building and Construction Commission,14 the Queensland Court of Appeal allowed an appeal brought by a builder granting relief from an order for summary judgment in the District Court of Queensland. This decision is a rare example of a builder successfully defending recovery proceedings initiated by the Queensland Building and Construction Commission (QBCC) for payments made under the statutory insurance scheme established by the Queensland Building and Construction Commission Act (1991) (Qld) (Act).

Background facts

Kamran and Mojgan Samimi were the directors of a building company, which carried out residential construction works on two buildings for the building owner. Following a dispute with the building company, the owner subsequently terminated both construction contracts for these buildings and made a claim to the QBCC under the statutory insurance scheme established in Part 5 of the Act for the costs associated with non-completion of the construction work.

The QBCC considered that the owner's claim was valid and paid the owner $400,000 in accordance with the policy. In turn, the QBCC initiated recovery proceedings under section 71(1) and section 111C of the Act against the Samimis to recover this sum, and sought summary judgment on the claim which was initially granted by the District Court but ultimately refused by the Court of Appeal in allowing the appeal of the primary judge's decision.

This case demonstrates the circumstances in which a court may be persuaded to look behind and challenge the QBCC's processes after payment has been made to a home owner.

The decision on appeal

At first instance, the QBCC was awarded summary judgment against the Samimis, primarily, on the basis that there was no factual dispute requiring a trial and that a decision made by the QBCC to make a payment under the insurance scheme was not justiciable. The trial judge's decision was appealed, on grounds including that the material presented to the trial judge raised a dispute of fact regarding the amount paid by the owner on the original building contract, which would then impact on the amounts payable under the statutory insurance scheme. Indeed the amount paid on the original contract, in accordance with the Samimis submissions, would have meant that no sum would have been payable under the statutory insurance scheme.

On appeal, Boddice J delivered the leading judgment with McMurdo P and Morrison JA agreeing. The appeal was ultimately allowed on the basis that the matter did not satisfy the test for summary judgment found in r 292 of the Uniform Civil Procedure Rules 1991 (Qld). Boddice J noted that the Samimis had put on the record, legitimate questions of fact and discrepancies raised in the QBCC's submissions mitigating against granting summary judgment.

Although the Act has been interpreted as providing the QBCC with a right of recovery which is not dependent on establishing the legal correctness of a determination to make a payment or an anterior step that has led to the decision to pay, the Court found a factual error can be the subject of a proper defence to a claim for recovery under section 71(1). Section 71(1) of the Act requires as a pre-condition for recovery that a payment was made "on a claim under the insurance scheme" rather than just any payment.

His Honour did not accept the QBCC's submissions that section 71(1) of the Act precludes any judicial inquiry as to whether the QBCC has complied with the Act in making payment to the home owners. It was held that recovery under section 71(1) of the Act required the QBCC to make a valid payment on a claim under the insurance scheme. In circumstances where there is cause to question whether a payment on the insurance scheme was made in accordance with the terms of the scheme, factual matters sought to be raised by way of defence should be considered as justiciable under section 71(1) of the Act.

Summary

Once payment has been made by the QBCC under the statutory insurance scheme, the defendant/builder to recovery proceedings cannot usually go behind QBCC's processes to challenge the underlying payment as a defence to the recovery action. To defend a recovery action under the Act, the defendant must show the QBCC made a factual error, such that the payment was not made "on a claim under the insurance scheme". This case shows that if a defendant can raise evidence to suggest the payment made by the QBCC was not "on a claim under the insurance scheme" it will amount to a justiciable issue warranting determination at trial.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.