Alafaci v Queensland Building Services Authority - [2013] QCAT 499

CITATION:

Alafaci v Queensland Building Services Authority [2013] QCAT 499

PARTIES:	Anthony Alafaci (Applicant)
v
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER:

OCR191-12

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

8 and 9 July 2013

HEARD AT:

Brisbane

DECISION OF:

Sandra G Deane, Member

DELIVERED ON:

19 September 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the Queensland Building Services Authority made on 16 April 2012 to refuse to categorise Mr Anthony Alafaci as a “permitted individual” in relation to the insolvency of Mars West Pty Ltd is confirmed.

2. The decision of the Queensland Building Services Authority made on 16 April 2012 to refuse to categorise Mr Anthony Alafaci as a “permitted individual” in relation to the insolvency of Planet Plumbing (VIC) Pty Ltd is confirmed.

3. The decision of the Queensland Building Services Authority made on 16 April 2012 to refuse to categorise Mr Anthony Alafaci as a “permitted individual” in relation to the insolvency of Planet Plumbing (NSW) Pty Ltd is set aside.

4. Mr Anthony Alafaci be categorised as a “permitted individual” pursuant to section 56 AD of the Queensland Building Services Authority Act 1991 in relation to the insolvency of Planet Plumbing (NSW) Pty Ltd.

CATCHWORDS:

Permitted Individual – review of decision not to allow application to be categorised as permitted individual – when discretion operates

Queensland Building Services Authority Act 1991 (Qld) - ss 56AC, 56AD(1), 56AD(8), 56AD(8A)
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20

Younan v Queensland Building Services Authority [2010] QDC 158
Vadasz v Queensland Building Services Authority [2013] QCAT 84
Baker v Queensland Building Services Authority [2013] QCAT 175
Hyde v Queensland Building Services Authority [2003] QBT 30
Dinsey v Queensland Building Services Authority [2013] QCATA 225

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Anthony Alafaci represented by Mr L Stojanovski of Keystone Lawyers

RESPONDENT:

Queensland Building Services Authority represented by Ms J Stroud, in – house solicitor

REASONS FOR DECISION

Mr Alafaci is a director of Planet Plumbing (QLD) Pty Ltd, which holds a licence issued by the QBSA. He holds a nominated supervisor’s licence also issued by the QBSA. Mr Alafaci is a director of Planet Plumbing Group Pty Ltd, the holding company of Planet Plumbing (QLD), which has applied for a licence from the QBSA.
Mr Alafaci operates his business through a group of companies in various part of Australia. Three companies of which he was a director had administrators appointed in late 2011.[1] As a consequence the QBSA wrote to Mr Alafaci in respect of each insolvency event advising that the QBSA considered him an “excluded individual”[2]. Mr Alafaci applied to the QBSA to be categorised as a permitted individual[3] in respect of each event. Those applications were refused. Mr Alafaci seeks a review of each of those decisions dated 16 April 2012.
[1]Mars West Pty Ltd – 21 September 2011; Planet Plumbing (VIC) Pty Ltd – 22 November 2011; Planet Plumbing (NSW) Pty Ltd – 12 December 2011.
[2] QBSA Act s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] QCAT 499
Decision Date

CaseChat Overview and Summary

In this case, Anthony Alafaci sought a review of the Queensland Building Services Authority's (QBSA) decisions to refuse his applications to be categorised as a "permitted individual" in relation to the insolvencies of Mars West Pty Ltd, Planet Plumbing (VIC) Pty Ltd, and Planet Plumbing (NSW) Pty Ltd. Alafaci argued that he should be categorised as a permitted individual because he had taken all reasonable steps to avoid the insolvencies. The QBSA maintained that Alafaci had not taken all reasonable steps, and therefore, the decisions to refuse his applications were correct. The Tribunal was required to consider the applications afresh on the material before it to produce the correct and preferable decision. The Tribunal found that Alafaci had not taken all reasonable steps in relation to the insolvencies of Mars West and Planet Plumbing (VIC), and therefore, the QBSA's decisions were confirmed. However, the Tribunal found that Alafaci had taken all reasonable steps in relation to the insolvency of Planet Plumbing (NSW), and therefore, the QBSA's decision was set aside, and Alafaci was categorised as a "permitted individual" in relation to this event.

The main legal issue the Tribunal had to decide was whether Alafaci had taken all reasonable steps to avoid the insolvencies of the three companies. The Tribunal considered the mandatory matters set out in section 56AD(8A) of the Queensland Building Services Authority Act 1991 and found that Alafaci had not taken all reasonable steps in relation to the insolvencies of Mars West and Planet Plumbing (VIC). For example, Alafaci did not seek timely financial advice regarding the recovery of amounts owing, and he allowed Planet Plumbing (VIC) to enter into a loan with Mars West in circumstances where Planet Plumbing (VIC) had no real prospect of repaying the amount. However, the Tribunal found that Alafaci had taken all reasonable steps in relation to the insolvency of Planet Plumbing (NSW). Alafaci sought legal advice prior to entering into the transaction with the private equity investor, and he made a personal contribution under a Deed of Company Arrangement to improve the return received by the creditors. Therefore, the QBSA's decision to refuse Alafaci's application to be categorised as a "permitted individual" in relation to the insolvency of Planet Plumbing (NSW) was set aside.

In conclusion, the Tribunal confirmed the QBSA's decisions to refuse Alafaci's applications to be categorised as a "permitted individual" in relation to the insolvencies of Mars West and Planet Plumbing (VIC). However, the Tribunal set aside the QBSA's decision in relation to the insolvency of Planet Plumbing (NSW) and categorised Alafaci as a "permitted individual" in relation to this event. The Tribunal's decision was based on its finding that Alafaci had not taken all reasonable steps in relation to the insolvencies of Mars West and Planet Plumbing (VIC), but he had taken all reasonable steps in relation to the insolvency of Planet Plumbing (NSW).

Orders