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[2026] QDC 44
General information, not legal advice.
District Court of Queensland
2026-04-10
Original judgment source is linked above.
PROCEDURE - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR PLAINTIFF - FOR DEBT - where the first defendant entered a contract for 'residential construction works' - where the residential construction works were covered by the Queensland Home Warranty Scheme - where the third defendant was listed on an insurance notification form - where the first defendant's construction licence was cancelled - where the homeowners terminated the contract for residential construction works - where the homeowners made a claim under the Queensland Home Warranty Scheme - where the plaintiff paid the homeowners claim - where the plaintiff claims the debt against the fourth defendant as a director of the third defendant pursuant to sections 71(1), 111C(3) and (6) of the Queensland Building and Construction Commission Act 1991 (Qld) - where the fourth defendant contends the payment made was not a "payment on a claim' under the insurance scheme - whether the fourth defendant can re-raise defences raised at internal review of the Queensland Building and Construction Commission's as a defence to s 71(1) debt recovery proceedings
Judicial Review Act 1991 (Qld)
Queensland Building Services Authority Act 1999 (Qld)
Allen & Taylor v Queensland Building and Construction Commission [2020] QCAT 63
Black v Gold Coast Pickelball Association Inc [2025] QCA 236
Deputy Commissioner of Taxation v Salcedo [2005] QCA 227; [2005] 2 Qd R 232
Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62
Mahony v Queensland Building Services Authority [2013] QCA 323
Namour v Queensland Building Services Authority [2014] QCA 72; [2015] 2 Qd R 1
Queensland Building and Construction Commission v Turcinovic [2017] QCA 77; [2018] 1 Qd R 156
Queensland Building Corporation Commission v Kouzmenkov [2022] QDC 81
Queensland Building Services Authority v Orenshaw [2012] QSC 241
Samimi & Anor v Queensland Building and Construction Commission [2015] QCA 106
[1] The plaintiff, Queensland Building and Construction Commission (QBCC), seeks to recover money that was paid for incomplete construction work to a homeowner under a Home Warranty Scheme. Under the relevant legislation, the QBCC can recover amounts paid under the Scheme from a variety of sources, including the directors of construction companies. Here, the QBCC pursues the fourth defendant, Andrew Joseph Eijsvogel, as a director of a company named as the licensed contractor on an insurance notification form. The fourth defendant denies any liability. The remaining defendants are either in liquidation or de-registered.
[2] The fourth defendant raises issues concerning whether the homeowner validly terminated the construction contract, whether the payment made to the homeowners was valid, and whether the QBCC's internal review decision properly considered certain defences and whether those defences can be raised during these debt recovery proceedings.
[3] The issue is whether the fourth defendant has any prospect of success of defending the claim or whether the matter should proceed to judgment without the need for a trial.
[5] On 22 March 2023 the QBCC commenced proceedings pursuant to section 71(1) of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) against a number of construction companies and against the third and fourth defendant, pursuant to section 111C(3) and (6) of the QBCC Act.
[6] The claim by the QBCC is for the recovery of money paid out to former clients of the defendants pursuant to the Scheme provided for in Part 6 and Schedule 6 of the QBCC Regulation. The Scheme provides a mechanism by which homeowners are compensated by the QBCC when building work performed by a licensed contractor is defective or incomplete. The QBCC is then empowered by the QBCC Act to recover money paid from the building companies that ought to have completed the work without defects or at all (under s 71(1) of the QBCC Act) as well as from the directors of such companies.
[7] The fourth defendant filed a notice of intention to defend and defence on 8 July 2024 (following failed service attempts). The fourth defendant denied he was a director at the relevant time and alleged that the third defendant had not been contracted to perform the works. An amended defence was filed on 23 October 2025.
(a) admits that he was a director of the third defendant since around 10 May 2021;
(b) denies any novation or assignment of the original building contract from the first defendant to the third defendant; and
(c) denies that the third defendant undertook any contractual obligations or received any payments from homeowners.
[9] The fourth defendant alleges that the homeowners breached the building contract through early occupation, unlicensed works, and direct payments contrary to contract clauses, which amounted to repudiation of the contract. In those circumstances the fourth defendant alleges that any payment by the QBCC under the Scheme was not properly made.
(a) the contract with the homeowners was with the first defendant;
(b) the third defendant was listed on the insurance form;
(c) the fourth defendant was a director of the third defendant from 10 May 2021; and
(d) the QBCC made payments to the homeowners totalling $201,339.77 (Debt) at a time when the fourth defendant was a director of the third defendant.
[11] The defence of the fourth defendant is that the payments made on the homeowner's claim were not properly paid in accordance with the Scheme, and by virtue of that contention, the payments were not paid in accordance with s 71(1) of the QBCC Act. The defendant submits that, as a result, the debt is not recoverable.
[12] On 28 March 2025, the QBCC applied for judgment against the fourth defendant pursuant to rule 292(2) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).
[13] The issue is whether the Court has the inherent jurisdiction to review the QBCC's internal review decision and whether that decision can be reopened or challenged, particularly considering relevant Court of Appeal authorities and/or whether summary judgment should be granted in favour of the QBCC.
(a) the payments made on the homeowner's claim were not properly paid in accordance with the Scheme, and by virtue of that contention, the payments were not paid in accordance with s 71(1) of the QBCC Act.
(b) the homeowner repudiated the contract such that the contract with the building contractor was not properly terminated based on the following pleaded allegations:
(i) the early occupation of the property by the homeowner contrary to clause 17.7 of the contract;
(ii) unlicensed works completed and arranged by the owner contrary to clause 11.12 of the contract; and
(iii) direct payments being made to subcontractors and suppliers contrary to clause 11.8 of the contract.
(a) Namour v Queensland Building Services Authority [2014] QCA 72; [2015] 2 Qd R 1 (Namour) - the defendant submitted this case stands for the proposition that in recovery proceedings the court must determine for itself whether a payment is properly made even if review time limits have expired
(b) Samimi & Anor v Queensland Building and Construction Commission [2015] QCA 106 (Samimi) - the defendant submitted this case stands for the proposition that recovery under section 71 of the act only arises if the payment was properly made on a claim under the scheme; and
(c) Allen & Taylor v Queensland Building and Construction Commission [2020] QCAT 63 (Allen & Taylor) - the defendant submitted this case stands for a valid termination of the contract is a precondition to a valid noncompletion insurance claim.
[16] The defendant argues that the QBCC did not properly consider issues such as homeowner breaches, early occupation, unlicensed works, direct payments, and repudiation. The defendant raises these matters as a basis for defending against the recovery of the debt.
[17] The internal review officer records in their decision that they considered all of the fourth defendant's submissions which raised the issues alleged in the defence
[18] The QBCC submits the fourth defendant has no real prospect of succeeding with his defence, and the Court ought to use its discretion to award summary judgment to the plaintiff on the grounds that:
(a) the plaintiff paid the sum of $201,339.77 in respect to a claim made under the Scheme;
(b) the fourth defendant was a director of the third defendant who was a building contractor whom the relevant residential construction work was, or was to be, carried out, for the purpose of section 71(1) because its name is stated on an insurance notification form for the residential construction work;
(c) pursuant to section 71(1) of the QBCC Act, the plaintiff is entitled to recover the sum of $201,339.77 from the third defendant as a debt on the basis that it was a building contractor by whom the relevant residential construction work was, or was to be, carried out;
(d) the third defendant was deregistered on 20 May 2024 so there are no recovery prospects against that company;
(e) pursuant to subsections 111C(3) and (6) of the QBCC Act, the liability to pay the amount also attaches to each individual who was a director of the company when building work the subject of the claim was, or was to have been carried out, and who was a director when the payment was made by the QBCC; and
(f) in the premises, the plaintiff has a prima facie entitlement to be awarded judgment on the Statement of Claim against the fourth defendant as he was a director of the third defendant when the plaintiff made the payments on the Claim.
[19] In relation to the allegations raised in the amended defence, the QBCC contends:
(a) the allegations are not supported by affidavit by the fourth defendant and, in any event are irrelevant in circumstances where the opportunity for review of the termination decision is closed; and
(b) it decided on the termination of the contract in its decision notice dated 2 June 2022. The opportunity for external review of that decision by this Court in this proceeding is not available to the fourth defendant. The QBCC relies on Court of Appeal authority to the effect that the fourth defendant's defence, based as it is upon an allegation the contract was not properly terminated, is not open as a defence to the debt recovery proceedings.. Whether or not a contract was properly terminated is a matter to be determined by the QBCC. That decision can be challenged in a judicial review proceeding. But it is not a controversy that can be raised in recovery proceedings in this Court.
[20] QBCC relied on the following Court of Appeal authorities:
(a) Mahony v Queensland Building Services Authority [2013] QCA 323 (Mahony);
(b) Namour; and
(c) Queensland Building and Construction Commission v Turcinovic [2017] QCA 077; [2018] 1 Qd R 156 (Turcinovic).
[21] The QBCC submitted that the opportunity for external review of that decision by this Court in this proceeding is not available to the fourth defendant.[2]
[22] Rule 292 of the UPCR sets out when a Court may give summary judgment for a plaintiff. It provides:
(1) A plaintiff may, at any time after a defendant files a notice of intention to defend, apply to the court under this part for judgment against the defendant.
(a) the defendant has no real prospect of successfully defending all or a part of the plaintiff's claim; and
(b) there is no need for a trial of the claim or the part of the claim;
the court may give judgment for the plaintiff against the defendant for all or the part of the plaintiff's claim and may make any other order the court considers appropriate.
[23] To succeed on a summary judgment application, the court must be satisfied that the defendant has no real prospect of defending the claim and that there is no need for a trial.[3]
[24] In Deputy Commissioner of Taxation v Salcedo [2005] QCA 227 (Salcedo), Williams JA stated that in determining summary judgment under Rules 292 and 293 of the UCPR:
"...the judge determining such an application is essentially called upon to determine whether the Defendant to the application has established some real prospect of succeeding at a trial; if that is established then the matter must go to trial."
[25] In Black v Gold Coast Pickelball Association Inc [2025] QCA 236, the appellant appealed against a finding that he had no real prospects of pursuing a claim as the remedies sought were outside the court's power. The Court of Appeal stated:
"[15] ...The question is not whether a claim is hopeless or bound to fail. It is whether there is a real as opposed to a fanciful prospect of success. If there is a real prospect of success, then the claim should go to a trial. The interests of justice usually require disputed facts and issues to be the subject of evidence and submissions at a trial. Summary judgment should not be given unless it is just to do so. It is given only in the clearest of cases."
[26] To make an order for summary judgment, it must be clear that there is no reasonable cause of action: Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62, at 91.
[27] If there is any significant issue as to a material fact, summary judgment is not appropriate.
(1) If the commission makes any payment on a claim under the statutory insurance scheme, the commission 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.
(a) a building contractor by whom the relevant residential construction work was, or was to be, carried out is taken to include -
(i) a licensed contractor identified in a copy of the licensed contractor's licence included in, or attached to, the contract for carrying out the work; and
(ii) a licensed contractor whose name, licence number and address are stated on the contract; and
(iii) a licensed contractor whose name is stated on the contract for carrying out the work; and
(iv) a licensed contractor whose name is stated on an insurance notification form for the work; and
(v) a licensed contractor whose licence number is stated on the contract for carrying out the work; and
(vi) a licensed contractor whose licence number is stated on an insurance notification form for the work; and
(vii) a building contractor by whom the work was, or was to be, carried out; and
(viii) a person who, for profit or reward, carried out the work; and
(b) a person through whose fault the claim arose is taken to include a person who performed services for the work if the services were performed without proper care and skill.
[29] Section 71(1) of the QBCC Act provides that where the QBCC makes any payment of a claim under the Scheme, the QBCC may recover that amount as a debt from the "building contractor" by whom the relevant residential construction was or was to be carried out.
[30] Section 111C of the QBCC Act sets out when directors are liable for a company relevantly as follows:
(3) This section also applies if a company owes the commission an amount because of a payment made by the commission on a claim under the insurance scheme.
(4) If this section applies because of subsection (1), the liability to pay the penalty attaches to -
(a) each individual who was a director of the company when the offence was committed; and
(b) each individual who is a director of the company when the penalty is imposed.
(6) If this section applies because of subsection (3), the liability to pay the amount attaches to -
(a) each individual who was a director of the company when building work the subject of the claim was, or was to have been, carried out; and
(b) each individual who was a director of the company when the payment was made by the commission.
(7) A liability under subsection (4), (5) or (6) to pay a penalty or an amount applies regardless of the status of the company, including, for example, that the company is being or has been wound up.
(8) If a liability under subsection (4), (5) or (6) attaches to 2 or more persons, the persons are jointly and severally liable.
[31] Pursuant to 111C(3) and (6) of the QBCC Act, where a company owes the commission an amount because of a payment made by the commission on a claim under the insurance scheme, QBCC may recover that amount from an individual who was a director of the company when the building work the subject of the claim was, or was to have been, carried out; and who was a director of the company when the payment was made by the QBCC.
[32] The QBCC maintains that the fourth defendant is liable to it for the debt of the third defendant pursuant to sections 111C(3) and (6) of the QBCC Act on the basis that the fourth defendant was at all material times a director and secretary of the third defendant.
Are the issues raised in the defence justiciable in these proceedings?
Queensland Building Services Authority v Orenshaw [2012] QSC 241 (Orenshaw)
[33] In Orenshaw, the Queensland Building Services Authority (QBSA) paid owners for defective works and then pursued the defendant as the director of the construction company for the debt under equivalent provisions to the QBCC Act in the Queensland Building Services Authority Act 1991 (Qld) (QBSA Act). The QBSA then applied for summary judgment. The defendant contended the owners contracts were not covered by the insurance scheme, there were no defects, the rectification costs were unreasonable, and that he did not receive notice of the plaintiff's decision which would have been reviewable.
[34] The Court stated that the determinative question is:
"[32] ...whether the statutory right of recovery under which the claim is brought can be defended by reliance on denials effectively alleging that the QBSA ought not to have paid the amounts it now seeks to recover. The answer necessarily flows from the elements of the sections conferring that right and whether the substance of the pleaded denials disputes those elements."
[35] The Court noted there may be incorrect facts "relied upon, in respect of a claim purportedly made under the insurance scheme and the nature of the error may be such that on the correct facts it cannot be said to have been a claim under the insurance scheme at all".[4] The Court went on though and cautioned that it was:
"[38] ...unlikely that s 71 could be avoided by a building contractor disputing discretionary factual conclusions occurring as part of the professional judgment exercised by the QBSA in deciding whether and how much to pay in respect of a claim. It would not be enough to avoid the statutory liability imposed by s 71 for a defendant to point merely to any error of fact connected with the claim process. It must logically have been a factual error of such a nature that the claim was not, on the facts as correctly known, a claim under the insurance scheme or that the payment sought to be recovered was not a payment on such a claim."
[36] Henry J found the pleadings did not disclose a link between the allegation and the argument that the payments were not claims under the insurance scheme.
[37] Claims of factual errors or general denials are insufficient as a defence to a recovery claim under section 71 unless they prove the claim was not under the insurance scheme or the payment was not made for such a claim.
[38] In Mahony, Gotterson JA discussed the limited circumstances in which recovery proceedings of this nature (i.e., debt recovery under s 71 of the QBCC Act) may be challenged:[5]
"[31] The appellant submits that in a recovery proceeding under s 71(1), it is open to a defendant to defend the claim by challenging the legal efficacy of any step taken by the authority in the assessment of the claim. Taken to its full extent, that approach would allow the defendant to challenge matters such as an inspection report, a decision to direct rectification of work, a decision that rectification work had not been satisfactorily attended to, and a decision to accept a particular tender from those submitted for rectification work.
[33] The submission invites consideration of whether such matters are justiciable in s 71(1) recovery proceedings. In my view, they are not for the following reasons.
[34] Section 71(1) confers a right to recover as a debt from any of the designated persons "any payment on a claim under the insurance scheme". It is sufficient for recovery under the section that the authority have made a payment on a claim under the insurance scheme. The statutory right to recover is not conditioned upon the legal quality of a determination by the authority to make the indemnity payment or of any anterior step taken by the authority that had led to the decision to pay.
[35] That is not to say that a decision to make an indemnity payment or any anterior step is not reviewable. At the relevant time, Division 3 of Part 7 of the QBSA Act conferred a review jurisdiction on the Commercial and Consumer Tribunal ("the Tribunal") with respect to the following decisions by the authority: to direct or not direct rectification or completion work on a building; that work undertaken at the direction of the authority was not of a satisfactory standard; about the scope of works to be undertaken under the statutory insurance scheme in order to rectify; and to disallow a claim under the scheme wholly or in part. A decision by the authority to recover an amount under s 71(1) was not reviewable by the Tribunal. However, it was a decision which was judicially reviewable in the Supreme Court of Queensland pursuant to the provisions of the Judicial Review Act 1991. So, too, for other anterior decisions of the authority. The availability of review of those kinds and at those stages provides a sound rationale for a legislative intention that the types of decisions to which I have referred, not be justiciable in s 71(1) debt recovery proceedings. Another indicator of such an intention is that s 71 itself specifies certain defences which may be raised in proceedings under the section. None of these are relevant to the kind of defence that the appellant would wish to agitate in these proceedings.
[36] The view I take of this aspect of the construction and application of s 71(1) finds support in the following observations of Margaret Wilson AJA in Lange v Queensland Building Services Authority:
"[72] Sections 71 and 111C provide for recovery of the amount of a 'payment on a claim under the insurance scheme' rather than the recovery of the amount of a 'payment under the insurance scheme'. For this reason, I do not accept counsel for the appellant's submission that the triggering circumstance on which the respondent relies does not apply.
[73] The administrative decision sought to be reviewed is one about entitlement to indemnity under the statutory policy. The appellant is a person aggrieved by that decision because, in consequence of it, a payment was made to the owners and he was exposed to recovery proceedings pursuant to s 111C. He is entitled to seek judicial review of that decision pursuant to s 20 of the Judicial Review Act 1991."
The triggering circumstance to which her Honour was referring was the payment by the authority of the claim.
[37] I agree with these observations. I note that, in that case, McMurdo P and Ann Lyons J did not express a concluded view on the matter because it had not been fully argued before them. In so far as the learned President observed that it seems unlikely that Parliament would have intended for the authority to recover from building contractors payments wrongly made to those insured by the authority on policies entered into under Part 5 of the QBSA Act, I understand her Honour to be referring to any payment that may have been made wrongly in the sense that it was not in fact made upon a claim made validly under the Act. The language of s 71(1) would leave open scope for a defence that the payment sought to be recovered was not made upon a claim and a defence that the claim was not validly made under the Act. To my mind, the position was accurately summarised by Henry J in Queensland Building Services Authority v Orenshaw as follows:
"At the other extreme, it is unlikely that s 71 could be avoided by a building contractor disputing discretionary factual conclusions occurring as part of the professional judgment exercised by the QBSA in deciding whether and how much to pay in respect of a claim. It would not be enough to avoid the statutory liability imposed by s 71 for a defendant to point merely to any error of fact connected with the claim process. It must logically have been a factual error of such a nature that the claim was not, on the facts as correctly known, a claim under the insurance scheme or that the payment sought to be recovered was not a payment on such a claim."
[38] Here, the appellant failed to seek any type of review of the respondent's decisions to direct rectification on the claims or that rectification work was not satisfactorily attended to. He did not, by that means, seek to impugn Mr Rendell's reports and the respondent's reliance upon them for its decision making. He did not seek judicial review of the decision to commence proceedings to recover against him under s 71(1). For the reasons given, he may not now in these proceedings, challenge those decisions on the ground he proposes."
[39] Mahony is authority for the following propositions:
(a) that the liability of a building contractor under the first limb of s 71(1) does not depend upon fault;
(b) in a section 71(1) recovery proceeding, a defendant cannot challenge the legal or factual correctness of the QBCC's prior administrative decisions, such as inspection reports, rectification directions, or acceptance of tenders. These matters are not justiciable in recovery proceedings;
(c) the QBCC need only show that it made a payment on a claim under the statutory insurance scheme. The right to recover is not conditioned on the legal quality or correctness of the decision to make the payment or any earlier steps leading to it. The review mechanisms available in the QBCC Act may review other factual disputes that are not reviewable within s 71(1) debt recovery proceedings;
(d) section 71(1) specifies particular defences (none relevant to merits challenges), which indicates a legislative intention to exclude such challenges from recovery proceedings;
(e) in s 71(1) proceedings the issue is whether a payment was made on a claim under the insurance scheme, not whether it was a correct or justified payment under the policy; and
(f) to successfully raise a defence in section 71(1) proceedings the defendant would have to demonstrate the:
(i) payment was not made on a claim; or
(ii) claim was not validly made under the QBCC Act.
[40] In Namour, a number of house owners terminated their building contracts with the company following the cancellation of the licence and made claims against the QBSA on the relevant statutory insurance scheme for the cost of completing the building work. The respondent paid the claims by the house owners and then sued the director of the building contractor to recover those payments.
[41] It was argued that the property owner's insurance claims against the respondent and the respondent's corresponding payments to this property owners resulted from a wrongful cancellation of the building licence. The appellant contended that the result of that was that he was "not a person who falls within the category of a person through whose fault the claim arose within the meaning of section 71(2)(b) of [the Act]".[6]
[42] The QBSA proceeded pursuant to sections 71(1) and 111C to recover monies paid out under the scheme as a debt against a director of a building company that it had its licence cancelled. QBSA was granted summary judgment at first instance and the builder appealed. Summary judgment was given on the basis that sections 111C(3) and (6) attached liability to the appellant as a director of the company at relevant times. The appellant argued that summary judgment should not have been entered on the basis that if the matter had proceeded to trial he may have been able to prove that the homeowners claims resulted from the QBSA's wrongful cancellation of the company's building licence. That is, he was not a person who fell within the category of person through whose fault the claim arose within the meaning of section 71(2)(b).
[43] The appellant argued that section 111C suggested clear language was required to attach liability to directors in the absence of fault. The Court of Appeal held that Gotterson JA's reasons in Mahony "convincingly demonstrate that there is no room for any implication that the liability of a building contractor under the first limb of section 71(1) depends upon fault".[7] The Court of Appeal said that the matters relied upon by the appellant did not justify a conclusion that the payments made to the homeowners were not payments made on a claim under the scheme the purposes of section 71(1). The appellant had sought to argue that the claims of the homeowners were not claims under the insurance scheme with the consequence that the payments made were not a "payment on a claim" within the meaning of those expressions in s 71(1). The appellant also contended that it was unjust to render him liable when it was the respondent that had indirectly caused the loss by cancelling his licence.
[44] The Court referred to the jurisdiction that is conferred upon the Consumer and Commercial Tribunal to review decisions under the QBSA Act. The court noted that such a right of review was required to be exercised within 28 days of receiving written notice of the decision. The court referred to Gotterson JA who observed in Mahony, the availability of those rights of review provides a sound rationale for a legislative intention that some decisions are not to be justiciable in debt recovery proceedings under section 71(1). They found that this was consistent with the literal meaning of s 71(1).
[45] The appellant argued it was not a claim "under the insurance scheme" and for that reason the payment made by the respondent to the person otherwise entitled to indemnity was not a "payment on a claim" within the meaning of those expressions in s 71(1). This is the same argument contended for by the fourth defendant. The Court of Appeal noted that any injustice which may arise from the fact that that the cancelling of the licence was wrong is ameliorated by the jurisdiction conferred upon the Consumer and Commercial Tribunal to review decisions of this nature.
[46] The Court of Appeal went on to explain scheme of the act as follows:
"[19] The scheme of the Act is that a building contractor or other interested person who wishes to challenge such decisions should make the challenge before the respondent pays under the policy. A building contractor who does not make such a challenge is liable under s 71(1) whether or not one of those anterior decisions might have been the subject of a challenge. In the case of a building contractor which is a company, a director caught by s 111C(6) is similarly unable to challenge one of those anterior decisions in a proceeding for recovery of a debt. This is so because the director's liability is fixed by reference only to the liability of the building contractor. (I would add that there is a strong argument that in circumstances such as occurred in this case, a director is also entitled to challenge a decision to cancel a company's building licence. A director may plausibly claim to be a person affected by such a decision because the readily foreseeable results of cancellation of a corporate building contractor's licence during the course of a contract include termination of the contract, a claim upon the respondent by the owner under the statutory insurance policy, payment of that claim by the respondent, and a claim by the respondent against the company and its directors.)"
(a) liability under s 71(1) is attached by statute regardless of fault;
(b) challenges to such administrative decisions must be made promptly through the appropriate review mechanisms;
(c) there is limited scope for raising defences in later debt recovery actions;
(d) a building contractor who does not make such a challenge through the appropriate administrative review mechanisms is liable under s 71(1) whether or not one of those anterior decisions might have been the subject of a challenge; and
(e) a director caught by s 111C(6) is similarly unable to challenge one of those anterior decisions in a proceeding for recovery of a debt.
[48] The fourth defendant contended that, contrary to the other Court of Appeal authorities, Samimi was authority for the proposition that he could test the validity of the contract termination in debt recovery proceedings under s 71(1).
[49] In Samimi, the QBCC was granted summary judgment at first instance on the basis that the appellant's pleadings disclosed no real prospect of successfully defending the claim. In coming to that decision, the primary judge noted that recovery under s 71(1) of the Act was not conditional on the correctness of any determination made nor anterior step taken by the QBCC.
[50] The appellant's argument was that 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 a claim for recovery pursuant to s 71(1) of the Act.
[51] The factual error relied upon by the appellant was an inconsistency in the QBCC's determination of the amounts paid to builder. One of the amounts referred to by the QBCC in their letter to the owner was such that the amount payable under a claim under the statutory insurance scheme would have been zero. The payments made to a homeowner were in excess of the liability under the policy. The Court of Appeal had to address whether this payment "was a payment 'on a claim under the insurance scheme'".
[52] The appellant contended that the payment made under the scheme had been made in error and therefore was not a payment properly made on a claim under the insurance scheme and therefore not justiciable under section 71(1). Consistent with the earlier Court of Appeal authorities, the Court found that 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.
[53] The trial judge entered summary judgment in favour of the QBCC where it had sought the recovery of amounts paid to homeowners under the Scheme. On appeal, the appellant questioned the owner's entitlement to receive the payment under the Scheme. The appellant argued that the payments made were not made "on a claim under the insurance scheme" and that therefore this was a valid defence to any claim for recovery pursuant to section 71(1) of the QBCC Act. The Court of Appeal discussed the Scheme and the steps required to the making of a claim under the policy. The Court of Appeal highlighted the mechanism for merits review of decisions made by the QBCC in the administration of the statutory scheme. The Court of Appeal, along with previous authorities, confirmed that the issue was whether the payment made was "on a claim under the insurance scheme".
[54] The Court of Appeal provided the following explanation of the legislative scheme:
"[29] The Act provides a legislative scheme for the prompt and efficient resolution of complaints by owners in respect of building work undertaken as part of residential building contracts. That scheme includes the establishment of a statutory insurance policy and steps for the making of a claim under that policy, and for payments by the respondent in relation to such claims.
[30] The Act contains several mechanisms for merit reviews of decisions made by the respondent in its administration of the statutory scheme. Those review rights are wide ranging and extensive**.**"
[55] The Court referred to both Mahony and Namour as it noted that:
"[30] ...It is unsurprising, against that background, that s 71(1) of the Act has been interpreted as providing the respondent with a right of recovery, as a debt, of payments made by it on a claim under the insurance scheme which is not dependent upon the respondent establishing the legal correctness of a determination made by it to make that payment or any anterior step taken by it that has led to the decision to pay."
[56] The Court of Appeal went on however to say that this did not mean no factual error could be the subject of a proper defence to a claim for recovery made under section 71(1). The court pointed to the words "on a claim under the insurance scheme" to indicate that any right of recovery only related to payments made "on" claims under the insurance scheme. Court of Appeal said, "the use of those words connotes a requirement the payment made be within the policy".[8]
[57] Samimi emphasises that payments made under the insurance scheme must be legitimately made under the Scheme to entitle the QBCC to recovery. The Court accepted that there is a defence in recovery proceedings under s 71 of the QBCC Act, implicit in the wording of the provision if the payment made was not a "payment on a claim". Samimi may seem to open the door to a consideration of the fourth defendant's claim. However, Samimi limits when factual errors could be the subject of a proper defence to a claim for recovery made pursuant to s 71(1) of the QBCC Act to a consideration of whether payments made "on" claims under the insurance scheme, where those words connote a requirement that the payment made be within the policy.[9]
[58] The Court of Appeal allowed the appellants' appeal against summary judgment because the appellants raised a genuine dispute of fact. They contended that the respondent had made an error in administering the insurance policy, including a significant discrepancy between the amount the owner was said to have paid under the contract as determined by the respondent and the amount that was actually paid. This dispute indicated that the claim should not have been resolved summarily without a trial to examine these factual issues. The court recognised that where there is reason to question whether the payment was made in accordance with the terms of the policy, a different conclusion from summary judgment may follow.
[59] The Court distinguished Namour on the grounds that in that case there was no reason to doubt that the claim was paid in accordance with the terms of the policy. The court found that the trial judge erred in granting summary judgment in circumstances where a trial may well have resulted in a finding the respondent was not entitled to recover the amount claimed in the proceeding.
[60] In coming to this conclusion, the Court had regard to Gotterson JA's comments in Mahony that:
[37] ...The language of s 71(1) would leave open scope for a defence that the payment sought to be recovered was not made upon a claim and a defence that the claim was not validly made under the Act.
[38] ...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. 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.
[62] Samimi has been considered subsequently in both the Court of Appeal in Building and Construction Commission v Turcinovic [2017] QCA 077; [2018] 1 Qd R 156 (Turcinovic) and Turcinovic has been considered in the District Court in Queensland Building Corporation Commission v Kouzmenkov [2022] QDC 081 (Kouzmenkov).
[63] In Turcinovic, the Court of Appeal were concerned with the QBCC appealing the decision of the primary judge to refuse to grant an application for summary judgment. In that case, payments had been made by the QBCC in relation to six properties for which the respondent had carried out residential construction work. There had been affidavit evidence by a quantity surveyor with respect to quotes relating to three of the properties which were significantly less than the payments made in relation to those three properties.
[64] The respondent had argued against the application for summary judgment on the basis that the payments (in relation to the three properties) were so unreasonable as to not be payments on a claim pursuant to s 71(1) of the Act. The primary judge found that it was possible the respondent could establish that some of the payments were so unreasonable that they did not amount to payments on a claim. As this called for both a factual enquiry and a proper argument about the legal test the court should apply, her Honour did not "have the necessary high degree of certainty that Mr Turcinovic could not establish his defence".[10] As such, summary judgment was denied.
[66] The Court of Appeal had regard to both Mahony and Namour as well as considering the consequence of the decision in Samimi.
[67] Samimi was clarified and explained in Turcinovic, by North J (with whom Philippides and Morrison JJA agreed):
"[28] The review of the decisions in this court referred to by her Honour below, and the parties before us since the decision of Mahony v Queensland Building Services Authority, confirm that Mahony remains an authoritative statement of the law and of the liability of a building contractor to pay to the Commission the amount of any payment made "on a claim under the... scheme" under s 71(1). Neither parties suggested to the contrary and it should be noted that Mahony has been referred to and applied with express approval in other decisions of this court.[38] Further, neither the judgment in Namour nor Samimi suggest, let alone establish, any qualification or modification to the interpretation or operation of s 71(1). The availability of both internal and external review of decisions made under the Act given by Division 3 of Part 6 of the Act and of judicial review under the Judicial Review Act 1991 suggests that there is limited scope for complaint about the legal quality of the decision-making in making a payment or the decisions anterior to it."
[68] North J expressed the primary judge's error as that "in the context of a claim under s 71(1) of the Act, she focuses attention upon a factual enquiry into reasonableness without inquiry whether the payment was made on a claim under the scheme.[11]
[69] Philippides JA in her Honour's concurring reasons in Turcinovic also noted:
"[15] ...The respondent's defence to the claim against him was no more than an attempt to seek a merits review of the payment made by the respondent under the insurance scheme. Section 71(1) of the Queensland Building and Construction Commission Act 1991 (Qld) should not be construed so as to permit a backdoor judicial review or a merits review of the appellant's decision to make a payment under the statutory insurance scheme set up under the Act. Such an approach would be contrary to the statutory framework of the Act as interpreted by the authorities referred to by North J, especially Samimi v Queensland Building and Construction Commission and would not be consonant with notions of finality of decision making."
[70] The Court allowed the appeal and entered summary judgment for the appellant.
[71] In Kouzmenkov, Judge Porter KC DCJ summarised the Court of Appeal authorities as follows:
"[3] The gravamen of the Court of Appeal's approach to this section is that if the elements of the claim are established, then the QBCC is entitled to its judgment. Matters which go to the deliberative process or investigation process that lies behind the making of such a payment cannot be litigated by way of defence in proceedings on s. 71(1). Those matters are to be dealt with according to the scheme of the QBSA Act, which despite some changes to section numbers and so on, remains as articulated in the decision of Mahony v QBSA. Those matters are to be worked out at an anterior point by administrative-style reviews, either internal, or by appeal to QCAT.
[4] There is also some residual scope for review of the decision by the Authority to decide to recover an amount under s. 71(1) of the Judicial Review Act 1991, although one might think the grounds for that review might be rather narrow. The authorities referred to, including the case of Queensland Building Corporation[sic] Commission v Turcinovic [2017] QCA 77, consistently emphasise that approach. There will be a residual scope for a defence where it can be shown that a payment that was made was not incapable of being made as a payment under the insurance scheme, but that residual circumstance does not arise in this case."
[72] Judge Porter KC DCJ confirmed that once the elements of section 71(1) are proven, the QBCC is entitled to judgment and challenges to the QBCC's process must be pursued through administrative reviews or appeals from those reviews.
[73] The fourth defendant also relied on the QCAT decision in Allen & Taylor. In this matter, QCAT was reviewing an internal review decision of the QBCC. The applicants had made an insurance claim for incomplete building work on the statutory Home Warranty Insurance Scheme where the respondents rejected the claim on the grounds that the applicants had not properly terminated the building construction contract with the builder in terms of insurance policy under the Home Warranty Insurance Scheme. This matter was a review of the internal QBCC decision regarding whether the contract had been validly terminated. This matter is distinguishable from the current matter in that this was conducted by way of merits review and was not a debt recovery proceeding. The current matter is not an appeal from a QBCC or QCAT decision. It is not authority for the proposition that the fourth defendant is entitled to re-argue the issue of contract termination in these proceedings. I also note that appeals from QCAT are on errors of law only. Any appeal in relation to an error of fact would require leave.
[74] The first issue is whether the Court can rehear the matter on the merits in circumstances where the fourth defendant has not availed himself of his rights of appeal.
[75] The fourth defendant's primary contention is that the homeowners did not terminate the contract properly and that as a result the payment to the homeowners under the scheme should not have occurred. That is, it was an invalid payment under the scheme. The difficulty with this contention is that the decision was reviewed internally by the QBCC and it found the contract had been validly terminated. No appeal from that decision was lodged. Any application to extend the time to appeal that decision to QCAT should have been filed before QCAT. No leave has been sought. No application for judicial review under the Judicial Review Act 1991 (Qld) was ever made.
[76] As Gotterson JA observed in Mahony, the availability of those rights of review provides a sound rationale for a legislative intention that some decisions are not to be justiciable in debt recovery proceedings under s 71(1).
[77] The fourth defendant's submissions are contrary to the intended scheme of the QBCC Act.
[32] ...But as has been repeatedly emphasised by this court the money s 71(1) authorises recovery of as a debt is the payment made on the claims s 71(1) specify. The evident purpose and intent of s 71(1) in the statutory context identified by Gotterson JA in Mahony is that the recovery of the debt authorised by the section is not to become bedevilled by the factual convolutions that can emerge in actions in courts, tribunals or arbitrations for recovery of reasonable and necessary costs of defective work. The Act contains provisions which the Parliament determined are appropriate to establish a scheme that balances the interests of homeowners and building contractors, and provides for debt recovery after the claim process established by Parliament has culminated in a payment.
[79] Seeking to re-raise issues which have already been determined or should have been raised in the earlier proceeding may amount to an abuse of process.[12]
[80] The third and fourth defendant were notified by QBCC that the homeowner validly terminated the contract and that it had approved the claim made by the homeowner. On 5 May 2022 the fourth defendant lodged an application for internal review with the plaintiff of the Original Decision of 7 April 2022.
[81] The QBCC issued a decision notice on 2 June 2022 and found that the homeowners did validly terminate the contract with the first defendant. The decision notice contained information that external review of its decision may be sought within 28 days of receipt of the decision notice. The fourth defendant elected not to apply for external review of that decision.
[82] There is no dispute that the third and fourth defendant were aware of the homeowners' Claim, having been notified by letter dated 11 March 2022.
[83] QBCC notified the defendants it had determined that the homeowners had validly terminated the contract. The fourth defendant was notified that the QBCC had approved the Claim and that it may recover additional amounts.
[84] Pursuant to section 71(2)(vi) of the QBCC Act, for the purposes of section 71(1) of the QBCC Act, a building contractor by whom the relevant residential construction work was, or was to be, carried out is also taken to include a licensed contractor whose licence number is stated on an insurance notification form for the work.
[85] The third defendant's licence was stated on the insurance notification form for the Works.
[86] On 2 June 2022, the Review Decision found that the homeowners did validly terminate the Contract with the first defendant. The fourth defendant's allegations that the contract was not validly terminated by the homeowner were aired and addressed in the Review Decision.
[87] This matter is not an appeal of that decision.
[88] The fourth defendant has made no external review application of the decision by the plaintiff to uphold the Original Decision. The fourth defendant is now outside the timeframe under QCAT [or the Judicial Review Act 1991 (Qld)] to seek review of the decision.
[89] The fourth defendant was the director of the third defendant at the time the plaintiff made the payments on the Claim under the Scheme which amounts to the Debt.
[90] The fourth defendant is therefore liable for the Debt pursuant to the provisions of 111C(3) and 111C(6) of the QBCC Act.
[91] Based on the Court of Appeal authorities, these matters are not justiciable in this Court in debt proceedings commenced under s 71(1) of the QBCC Act.
[92] The Court of Appeal in Samimi found there may be some factual circumstances which can be raised as a defence in debt recovery proceedings but confined those to circumstances where the right of recovery pertains to payments made "on" claims under the insurance scheme, where those words connote a requirement that the payment made be within the policy. There are no factual circumstances here which can be raised as a defence in these debt recovery proceedings.
[93] Here the fourth defendant had a right of review to QCAT and chose not to exercise it. Following Mahony, to allow the matter to be reviewed again by this Court in a debt recovery proceeding under section 71(1) goes against the intention of the QBCC Act.
[94] The validity of the termination of a domestic building contract is an example of a matter reviewable by QCAT.
[95] The fourth defendant's liability under the first limb of s 71(1) does not depend upon fault. The fourth defendant is unable to challenge the legal or factual correctness of the QBCC's prior administrative decisions in this section 71(1) debt recovery proceeding.
[96] Based on the authorities, the defendant has no real prospect of succeeding. Samimi is distinguishable.
[97] A payment "on" a claim under the scheme requires a:
(a) claim to have been made under the scheme; and
(b) payment made on that specific claim.
[98] Here the homeowners made a claim under the Scheme and the payment made to them was in relation to that claim. The right to recover that payment is tied to a formal claim and the payment being in direct response to that claim. Once that is satisfied, the debt is recoverable.
[99] Even if the matters raised by the fourth defendant were justiciable, there was insufficient evidence to determine whether the defendant could raise a real and not fanciful prospect of defending the claim in whole or part.
[100] Here there was no evidence filed in support of the allegations by the fourth defendant. They were merely allegations and submissions. As Morrison JA said in Turcinovic, at [5], "there has to be some degree of cogency about the state of the evidence that takes it beyond mere assertion".
[101] The carve out referred to in Samimi does not arise on the facts of this case.
[102] There is no basis to refuse the application for summary judgment.
[103] The fourth defendant had review options available. He chose not to avail himself of them. The decisions referred to in this matter have all emphasised the significance of those review options and the intention of the legislation.
[104] I am satisfied there is no real prospect of the defendant defending all or part of the plaintiff's claim and that there is no need for a trial.
[105] The starting point is that costs usually follow the event and are ordered to be paid on a standard basis.[13] Costs usually follow the event. Costs may be ordered to be paid on an indemnity basis under r 704(1) of the UCPR.
[106] I see no reason to depart from the usual order.
[107] Pursuant to rule 292 of the UCPR the plaintiff have judgment against the fourth defendant in the sum of $243,764.27 including interest in the amount of $42,424.50 calculated from 16 February 2023 to 25 September 2025.
[108] The fourth defendant pay the plaintiff's costs of and incidental to the plaintiff's application filed 28 March 2025 on a standard basis, as agreed or assessed.
[1] Pursuant to section 87 of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act), a person affected by a reviewable decision of the commission may apply, as provided under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) , to the QCAT for a review of the decision.
[2] Transcript of 27 November 2025, pages 1-9 to 1-10.
[3] Deputy Commissioner of Taxation v Salcedo [2005] QCA 227; [2005] 2 Qd R 232.
[4] Queensland Building Services Authority v Orenshaw [2012] QSC 241, at [36].
[5] It is convenient to outline the full analysis: Mahony v Queensland Building Services Authority [2013] QCA 323 at [31] - [38]. This is continually cited as the leading authority on this topic: see e.g., Queensland Building and Construction Commission v Watkins [2014] QCA 172, at [18] (per Douglas J, whom McMurdo P and Morrison JA agreed); Queensland Building and Construction Commission v Turcinovic [2017] QCA 77; [2018] 1 Qd R at [32] (per North J).
[6] Namour v Queensland Building Services Authority [2014] QCA 72; [2015] 2 Qd R 1, at [6].
[7] Namour v Queensland Building Services Authority [2014] QCA 72; [2015] 2 Qd R 1, at [13].
[8] Samimi, at [31]. The Court found this conclusion was supported by a number of authorities including Mahony, Orenshaw and Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573 (re the proper approach to statutory interpretation being to give words the meaning the legislature intended them to have).
[9] As was highlighted by Douglas J in Bourne v Queensland Building and Construction Commission [2018] QSC 231 at [16].
[10] Queensland Building and Construction Commission v Turcinovic [2017] QCA 77; [2018] 1 Qd R 156, at [22].
[11] Queensland Building and Construction Commission v Turcinovic [2017] QCA 77; [2018] 1 Qd R 156, at [33].
[12] McGee v Independent Assessor [2023] QCA 225, at [52].
[13] Uniform Civil Procedure Rules 1999 r 702 ('UCPR').
Queensland Building and Construction Commission
Paris Projects Pty Ltd & Ors [2026] QDC 44
(1949) 78 CLR 62
(2011) 242 CLR 573