Alahakone v Queensland Building Services Authority - [2013] QCAT 371

CITATION:

Alahakone v Queensland Building Services Authority [2013] QCAT 371

PARTIES:	Mr Bruno Thilantha Alahakone (Applicant)
V
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER:

GAR235-12

MATTER TYPE:

General administrative review matters

HEARING DATE:

31 May 2013

HEARD AT:

Brisbane

DECISION OF:

Mr C Brabazon QC, Member

DELIVERED ON:

24 July 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Set aside the Queensland Building Services Authority decision of 1 May 2012, declaring Bruno Alahakone to be an excluded individual in relation to the appointment of liquidators of Capricornia Developments Pty Ltd on 23 April 2012.

2. Order that Mr Alahakone be a permitted individual, in relation to that event.

CATCHWORDS:

BUILDERS – Licences and registration – Building contractor‘s licence – permitted individuals - excluded individual

Queensland Building Services Act 1991 – ss 56AD8, 56AD8B

Younan v QBSA [2010] QDC 158

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Self represented

RESPONDENT:

Ms R.M. DeLuchi, of Robinson Locke, Litigation Lawyers

REASONS FOR DECISION

The issues

Mr Alahakone is an architect and builder. He had worked for Multiplex, a large building company. He had the experience of managing at least six building projects up to $500,000 in value, as the director of Capricornia Developments Pty Ltd - “Capricornia”. Liquidators of that company were appointed on 23 April 2012. It was insolvent. Its trade creditors suffered losses.
On 1 June 2012 the Queensland Building Services Authority (QBSA) refused to classify him as a “permitted individual.” He became an “excluded individual” – he cannot be a builder.
This is a review of the QBSA’s decision. QCAT must consider all the evidence and submissions, and exercise the discretion conferred by s56AD(8) of the Queensland Building Services Authority Act 1991 (QBSA Act).
He can be a permitted individual only if he “took all reasonable steps to avoid the coming into existence of the circumstances which resulted in the happening of the relevant events.” The reasonableness of his behaviour has to be assessed by reference to what was known by him at the time, without the benefit of hindsight. His steps are to be considered objectively, having regard to his circumstances, after a wide enquiry about how he conducted any business. See Younan v QBSA [2010] QDC 158.
In deciding if all reasonable steps were taken the matters set out in section 56AD(8A) must be considered. Other matters might also be considered, when deciding whether an individual took all reasonable steps to avoid the coming into existence of the circumstances that resulted in the happening of a relevant event – section 56AD(8B).
Capricornia was short of money because of difficulties with two building jobs – the Ceylon Inn and 63 Bertha Street.
The QBSA submits that there were two failures in dealing with the Ceylon Inn job – a failure to invoice the work in a timely manner, and a subsequent failure to obtain payment.
In relation to the Bertha Street property, it is common ground that the major party in its redevelopment, Mr Macks, failed to complete his part…

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 371
Decision Date

CaseChat Overview and Summary

This case involves Bruno Alahakone, an architect and builder, who applied for review of a decision by the Queensland Building Services Authority (QBSA) to exclude him from being a "permitted individual" in relation to the appointment of liquidators of Capricornia Developments Pty Ltd. The QBSA had determined that Mr Alahakone was an "excluded individual" and could not be a builder under the Queensland Building Services Authority Act 1991. Mr Alahakone challenged this decision before the Queensland Civil and Administrative Tribunal (QCAT). The key legal issue before QCAT was whether Mr Alahakone had taken all reasonable steps to avoid the circumstances that led to Capricornia's insolvency. QCAT found that Mr Alahakone had acted reasonably in attempting to recover debts owed to Capricornia from clients, and had not acted unreasonably in his dealings with a partner on a redevelopment project. QCAT concluded that Mr Alahakone had taken all reasonable steps to avoid the financial difficulties that led to Capricornia's insolvency. Therefore, QCAT set aside the QBSA's decision excluding Mr Alahakone and ordered that he be classified as a "permitted individual." This meant he could continue to work as a builder in Queensland.

The court found in favour of Mr Alahakone and ordered that the QBSA's decision excluding him be set aside. Mr Alahakone was ordered to be classified as a "permitted individual," allowing him to continue working as a builder in Queensland. The QBSA's complaints that Mr Alahakone failed to maintain proper financial records and separate company and personal affairs were rejected. The evidence showed that his wife, an accountant, had maintained the company's records and accounts. The court accepted Mr Alahakone's evidence that he had taken all reasonable steps to avoid Capricornia's insolvency, despite difficulties with two building projects and his own health issues.

Orders