Beerepoot v Queensland Building and Construction Commission - [2015] QCAT 524

CITATION:

Beerepoot v Queensland Building and Construction Commission [2015] QCAT 524

PARTIES:	Paul Antony Everard Beerepoot (Applicant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER:

OCR219-14

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

26 August 2015

HEARD AT:

Brisbane

DECISION OF:

Member Hanly

DELIVERED ON:

4 December 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the Queensland Building and Construction Commission dated 29 August 2014, which refused to categorise Paul Antony Everard Beerepoot as a permitted individual, is confirmed.

CATCHWORDS:

Application to be categorised as a permitted individual; Queensland Building and Construction Commission Act 1991, s56AD

APPEARANCES:

APPLICANT:

Mr Beerepoot appeared on his own behalf

RESPONDENT:

Queensland Building and Construction Commission was represented by Mr Malcolm Robinson, of Robinson Locke Litigation Lawyers

REASONS FOR DECISION

Mr Beerepoot was a licenced builder. He entered into bankruptcy under the Bankruptcy Act 1966 on 2 November 2010.
On 25 August 2014, Mr Beerepoot applied to the Queensland Building and Construction Commission (QBCC) to be categorised as a permitted individual.[1]
[1]S56AD(1) Queensland Building and Construction Commission Act 1991 (QBCC Act)
QBCC refused Mr Beerepoot’s application on 29 August 2014. He then sought a review of that decision. This Tribunal is required to consider the matter afresh, and to determine it on its merits. In doing so, the Tribunal is required to make “the correct and preferable decision”.[2]
[2]S20 Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act)
The Tribunal may categorise Mr Beerepoot as a permitted individual only if it is satisfied that he “took all reasonable steps to avoid the coming into existence of the circumstances that resulted in the happening of the relevant event.”[3] The “relevant event” referred to in section 56AD(8) refers to the relevant event set out in section 56AC.
[3]S56AD(8) QBCC Act
It is necessary, therefore, for the Tribunal to decide the following issues:
a)    What is the “relevant event”?
b)    What were the circumstances that resulted in the happening of the relevant event?
c)    Did Mr Beerepoot take all reasonable steps to avoid the coming into existence of those circumstances?
d)    If the threshold issue is satisfied, should the Tribunal exercise its discretion to classify Mr Beerepoot as a permitted individual?
In determining what those reasonable steps are, the Tribunal must make that assessment “by reference to what was known by (Mr Beerepoot) at the time, without the benefit of hindsight.”[4] It is also not a question of whether Mr Beerepoot did everything possible to prevent the circumstances from arising, or whether they would have arisen if he had acted differently.[5]
[4]Younan v QBSA [2010] QDC 158 at para [26]
[5]ibid
What is the “relevant event”?
The “relevant event” is Mr Beerepoot’s bankruptcy.
What were the circumstances that resulted in the happening of the relevant event?
Mr Beerepoot stated in the Statement of Affairs lodged with his Debtor’s petition [BOD p112] that the cause of his bankruptcy was business related, because there was an “inability to collect debts due to disputes, faulty work…

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: [2015] QCAT 524
Decision Date: 4 December 2015

CaseChat Overview and Summary

In the case of Beerepoot v Queensland Building and Construction Commission, the applicant, Paul Antony Everard Beerepoot, sought a review of the Commission's decision to refuse to categorise him as a permitted individual under the Queensland Building and Construction Commission Act 1991. The dispute involved whether Mr Beerepoot had taken all reasonable steps to avoid his bankruptcy, particularly in light of his involvement in business activities and financial transactions prior to his insolvency.

The central legal issue before the court was whether Mr Beerepoot had complied with section 56AD(8A) of the Act, which requires that an individual must have taken all reasonable steps to avoid bankruptcy. The court had to consider the evidence presented regarding Mr Beerepoot's financial decisions and actions, including his preferential payments, guarantees, and the advice he received from solicitors. The court also needed to assess whether Mr Beerepoot had taken appropriate steps to ensure that his guarantees were backed by sufficient assets and if he had sought adequate financial or legal advice before entering into various financial and business arrangements.

The court examined the evidence and found that Mr Beerepoot had not taken all reasonable steps to avoid his bankruptcy. His actions, such as making preferential payments to his wife and family trust, entering into guarantees without ensuring sufficient assets to cover liabilities, and incurring substantial legal fees by resisting liquidator claims, demonstrated a lack of due diligence. The court concluded that Mr Beerepoot's decisions and actions contributed directly to his insolvency and that he failed to seek appropriate advice or ensure his guarantees were adequately backed. Consequently, the Tribunal confirmed the Commission's decision to refuse to categorise Mr Beerepoot as a permitted individual.

Orders

Orders of the court

1. The decision of the Queensland Building and Construction Commission dated 29 August 2014, which refused to categorise Paul Antony Everard Beerepoot as a permitted individual, is confirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Mr Beerepoot also gave evidence that, although the amount owed to his creditors was $77,381.00, his wife owed considerably more to her creditors. He decided that he did not want his wife to be the only one to go into bankruptcy, so he thought that he should show marital solidarity by doing the same. However, the ramifications for Mr Beerepoot were considerably more serious in terms of his future livelihood. Further factors for consideration under s.56AD(8A) Mr Beerepoot obviously gave guarantees from time to time (Macquarie Equipment Rentals being one), but there was no evidence provided by him as to the precise nature of those guarantees, nor whether there were sufficient assets to cover the liabilities under the guarantees. Ultimately, when called upon to honour the guarantees, he was unable to do so. Mr Beerepoot also obtained advice from at least two solicitors after AMS went into liquidation, and before he entered bankruptcy. He also gave evidence that when he first set up the business he was given erroneous advice, which caused him to establish the business in one way, only to be told later by the (then) Queensland Building Services Authority that it needed to be changed. He did not give much detail about the particulars of this change, other than to say that it entailed, amongst other things, a transfer of the family home from the family trust to Mrs Beerepoot’s name. That transfer cost him a significant sum in stamp duty, which in turn made him decide not to transfer assets owned by the family trust to the business, to avoid having to pay more stamp duty. Mr Beerepoot gave scant evidence about the advice given at the time of the company event and the relevant event. The actions taken by the first firm of solicitors to resist the claims of the liquidators seems to fly in the face of the evidence, which was that Mr Beerepoot acknowledged that he had made the preferential payments, and also that the company had traded whilst insolvent, however belatedly Mr Beerepoot had come to that realisation. By resisting the claims, Mr Beerepoot ran up almost $25,000.00 in fees, which he then could not pay. This history indicates that Mr Beerepoot failed to take certain steps, such as :a)Obtaining appropriate financial or legal advice before entering into the various financial or business arrangements he conducted, such as making payments from the company to his wife and the family trust, andb)Ensuring that the guarantees he provided were covered by sufficient assets to cover the liability under the guarantees, and thatc)Mr Beerepoot entered into the financial arrangements that led directly to his bankruptcy by the making of preferential payments to his wife and the family trust, which were used for personal living expenses and dissipated, so that when demand was made on him by the liquidator, he was unable to reimburse the monies. Considering all of the evidence, the Tribunal is satisfied that Mr Beerepoot did not take all reasonable steps to avoid his bankruptcy.Is the Tribunal required to exercise its discretion?