| CITATION: | Arthurs v Queensland Building and Construction Commission [2014] QCATA 155 |
| PARTIES: | Michael James Arthurs (Applicant/Appellant) |
| v | |
| Queensland Building and Construction Commission (Respondent) |
| APPLICATION NUMBER: | APL349-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 30 April 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Oliver, Presiding Member Member Howe |
| DELIVERED ON: | 2 June 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The time for filing the application for leave to appeal or appeal is extended to 16 August 2013 2. The decision of the Tribunal dated 17 May 2013 confirming that the applicant is an excluded individual in relation to the liquidation of MTS Developments Pty Ltd is set aside. 3. The decision of the Commission made on 28 September 2011 that the applicant is an excluded individual for that relevant event is set aside. |
| CATCHWORDS: | INFLUENTIAL PERSON – where applicant a 50% shareholder in a company – whether in a position to control or substantially influence the conduct of the company's affairs – where applicant promoter of a company – where no evidence of control or substantial influence Queensland Building and Construction Commission Act 1991 (Qld), s 56AC |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Bowden of Counsel instructed by Quinn and Scattini Lawyers |
| RESPONDENT: | Ms Heyworth-Smith of Counsel instructed by Robinson Locke, Litigation Lawyers. |
REASONS FOR DECISION
Mr Arthurs is a registered builder. In 2011 he was a 50% share holder in a company, MTS Developments Pty Ltd (‘MTS’). The company was incorporated for the specific purpose of developing two blocks of land it owned by constructing two project homes on them and then their sale. Quite independently of the company, Mr Arthurs was the builder who built the houses for MTS. After the houses were sold, for some inexplicable reason, the company was put into liquidation under a Creditor’s Voluntary Winding-Up, rather than simply deregistered.
The appointment of the liquidator triggered s 56AC of the Queensland Building and Construction Commission Act 1991 (Qld) (‘the Act’) which automatically categorises a director or secretary or ‘influential person’, as an excluded individual. The effect of being so categorised is that the individual’s building licence is automatically cancelled. The Commission contends that by virtue of Mr Arthurs’ 50% shareholding in MTS and applying the definition of ‘influential person’ under the Act, he is an excluded individual.
Mr Arthurs applied to review the Commission’s decision in the Tribunal essentially on the grounds that in all the circumstances he was not an influential person and did not fall within the definition of ‘influential person’ under the Act. Merely because he held 50% of the shares in MTS did not mean, ipso facto, that he was an influential person.
A hearing was conducted on 2 October 2012. The Tribunal delivered its decision on 17 May 2013 and confirmed the Commission’s decision that Mr Arthurs was an excluded individual because he was a person who was in a position to substantially influence the conduct of the company’s affairs.
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- Case
- [2014] QCATA 155
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether Arthurs, as a 50% shareholder, was in a position to control or substantially influence the conduct of MTS Developments' affairs, thereby rendering him an influential person under the Act. The court had to determine if Arthurs' shareholding and role as a promoter of the company was sufficient to establish his influence over the company's affairs. Additionally, the court had to consider whether there was any evidence that Arthurs exercised control or had the capacity to substantially influence the company's decisions.
In its judgment, the court held that Arthurs did not have the control or substantial influence over MTS Developments Pty Ltd as required to be considered an influential person. The court found that while Arthurs was a 50% shareholder, there was no evidence that he exercised control or had the capacity to substantially influence the company's decisions. The court noted that the term "influential person" required more than just shareholding, and that there needed to be evidence of actual control or influence. As such, the court set aside the decisions of both the Tribunal and the Commission, ruling that Arthurs was not an excluded individual in relation to the liquidation of MTS Developments Pty Ltd.
The court extended the time for filing the application for leave to appeal or appeal to 16 August 2013, and set aside the decisions of the Tribunal and the Commission that excluded Arthurs from participating in the reconstruction of MTS Developments Pty Ltd.
Orders
Orders of the court
1. The time for filing the application for leave to appeal or appeal is extended to 16 August 2013
2. The decision of the Tribunal dated 17 May 2013 confirming that the applicant is an excluded individual in relation to the liquidation of MTS Developments Pty Ltd is set aside.
3. The decision of the Commission made on 28 September 2011 that the applicant is an excluded individual for that relevant event is set aside.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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