Arthurs v Queensland Building and Construction Commission

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
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 61

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

1. 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.

2. 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.

3. 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.

4. 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.