Brunner v Queensland Building and Construction Commission - [2015] QCAT 513

CITATION:

Brunner v Queensland Building and Construction Commission [2015] QCAT 513

PARTIES:	Ben Raymond Brunner (Applicant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER:

OCR022-15

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

8 December 2015

HEARD AT:

Brisbane

DECISION OF:

Member Gardiner

DELIVERED ON:

10 December 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the Authority dated 22 January 2015 refusing to categorise Mr Brunner a permitted individual is set aside.

2. Ben Raymond Brunner is categorised as a permitted individual.

CATCHWORDS:

PERMITTED INDIVIDUAL – where the applicant was a director of a building company – where a substantial debt arose to ATO over a number of years – where applicant says debt arose because of reliance on wife as book-keeper in circumstances of marital breakdown – where company also not licensed for work undertaken – where second company incorporated licensed – whether all reasonable steps taken – whether a licensee can place full reliance on another person

Queensland Building and Construction Commission Act 1991 (Qld), ss 56AC, 56AD

Jones v Dunkel (1959) 101 CLR 298
Mair v QBCC [2014] QCAT 566
Meredith v QBSA [2012] QCAT 146
QBCC v Meredith [2014] QCA 62
QBCC v Jensen [2014] QCATA 028
Younan v QBSA [2010] QDC 158

APPEARANCES:

APPLICANT:

Mr Cooke of Counsel represented Mr Brunner

RESPONDENT:

Ms Guiney, Lawyer represented the Queensland Building and Construction Commission

REASONS FOR DECISION

On 22 January 2015, the Queensland Building and Construction Commission refused an application by Ben Raymond Brunner to be categorised as a permitted individual under s 56AD(1) of the then Queensland Building and Construction Commission Act 1991 (‘Commission Act’).
Ben Brunner has been in the building industry as a plasterer since finishing his apprenticeship. He says until now he has run a profitable business, first as a sole trader, on his marriage to Julia, in a partnership and then from 2008, under the auspices of the company Brun Pty Ltd, of which he was the sole director and secretary. Mr Brunner is licenced, holding a Queensland licence in the class of Plastering Solid.
On 25 September 2014, Brun Pty Ltd went into voluntary liquidation and liquidators were appointed. This resulted under the Commission Act in Mr Brunner being deemed to be an “excluded individual”[1] and his licence being cancelled for five years.
[1]Queensland Building and Construction Commission Act 1991 (Qld), s 56AC.
Julia Brunner has long experience in book-keeping and accounting. She had worked in an accounting firm and undertaken training in this field. During their 15 year relationship, Mr Brunner handed over the responsibility for the accounting side of their partnership and then the company, to his wife. She was (she says herself) primarily responsible for the maintenance of accounting software, tax compliance and liaising with Noyes Partners – the company’s accountants.[2]
[2]Letter to the ATO from Julia Brunner dated 5 September 2014; Exhibit 2, page 316 (red).
Mr Brunner says he completely trusted his wife with these responsibilities – he had no reason…

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 513
Decision Date: 10 December 2015

CaseChat Overview and Summary

Ben Raymond Brunner brought proceedings against the Queensland Building and Construction Commission, challenging the Commission’s refusal to categorise him as a permitted individual under the Building and Construction Industry Security of Payment Act 1999 (Qld). The applicant, a director of a building company, claimed that he was unable to manage the company's financial affairs due to a marital breakdown and had relied on his wife, who was the company's bookkeeper, to manage these matters. This reliance, he argued, resulted in a substantial debt to the Australian Taxation Office (ATO). Furthermore, the company was not licensed for the type of work it undertook, although a second company, later incorporated, was licensed. The central issues were whether all reasonable steps had been taken to prevent the debt and whether a licensee could reasonably rely on another person in such circumstances.

The court examined whether Mr Brunner had taken all reasonable steps to prevent the debt to the ATO and whether it was reasonable for him to rely on his wife for financial management. The court found that Mr Brunner had not taken all reasonable steps to prevent the debt, as he had not ensured that his wife, who was managing the finances, was adequately supported or supervised in her role. However, the court also acknowledged the extenuating circumstances of the marital breakdown. The court concluded that it was reasonable for Mr Brunner to rely on his wife for financial management given the personal and family circumstances at the time. Consequently, the court found that the Commission’s decision to refuse to categorise Mr Brunner as a permitted individual was flawed.

The decision of the Commission dated 22 January 2015 was set aside, and Ben Raymond Brunner was categorised as a permitted individual. The court ordered that the Commission’s decision be quashed and that Mr Brunner be recognised as a permitted individual under the Building and Construction Industry Security of Payment Act 1999 (Qld). This outcome reflects the court’s consideration of both the applicant's personal circumstances and the statutory requirements for categorisation as a permitted individual.

Orders

Orders of the court

1. The decision of the Authority dated 22 January 2015 refusing to categorise Mr Brunner a permitted individual is set aside.

2. Ben Raymond Brunner is categorised as a permitted individual.

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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