Buchanan v Queensland Building and Construction Commission - [2019] QCAT 354

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Buchanan v Queensland Building and Construction Commission [2019] QCAT 354

PARTIES:

CASEY BUCHANAN
(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO:

OCR121-17; OCR215-17

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

20 November 2019

HEARING DATE:

18 March 2019; 22 October 2019

HEARD AT:

Brisbane

DECISION OF:

Member Dr Collier

ORDERS:

In OCR121-17:

1.     The decision of the Respondent made on 16 May 2017 in respect of QUBE North is confirmed.

2.     The Respondent is to set a date which it deems appropriate from which the licences of the Applicant are to be cancelled for the period prescribed by law.

In OCR215-17:

1.   The decision of the Respondent made on 1 September 2017 in respect of QUBE Projects is set aside and of no effect.

CATCHWORDS:

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – interpretation of the Queensland Building and Construction Commission Act 1991 (Qld) – period of liability under s 56AC(2)(c)(ii) of the Queensland Building and Construction Commission Act 1991 (Qld) – excluded individual – permanently excluded individual – construction company – liquidation – relevant event – when two events are consequences flowing from what is, in substance, the one set of circumstances

Acts Interpretation Act 1954 (Qld), s 20(2), s 20(3), s 20C
Building Industry Fairness (Security of Payment) Act 2017, s 271
Professional Engineers and other Legislation Amendment Bill 2014 (Qld)
Queensland Building and Construction Commission Act 1991 (Qld), s 4AA(1), s 56AC, s 56AC(2)(c)(ii), s56AC(3), s56AC(4), s 56AC(5), s 56AF, s 56AF(3),
s 58, s 59(a)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24, s 24(2)(b)

D’Arro v Queensland Building and Construction Commission [2017] QCA 90
Dixie v Royal Columbian Hospital (1941) 2 DLR 138

Jensen v Queensland Building and Construction Commission [2017] QCAT 232

Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261
Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537
Paddon v Queensland Building and Construction Commission [2018] QCAT 100

Vickers v Queensland Building and Construction Commission & Ors [2019] QCA 66

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

M Robinson, solicitor

REASONS FOR DECISION

Casey Buchanan (‘Buchanan’) has many years of experience as a tradesman and builder and holds four Queensland Building and Construction Commission (‘QBCC’) licences:[1]
a)      Builder – low rise;
b)      Builder – open;
c)      Carpentry; and
d)      Plastering drywall.
[1]Licence number 1017837.
The records disclose that Buchanan had no entries in any category on his QBCC disciplinary record.
At various times Buchanan was an officeholder in two construction companies:
a) QUBE North Pty Limited ACN (‘QUBE North’);[2] and
b) QUBE Projects Pty Limited ACN (‘QUBE Projects’).[3]
[2]QUBE North was incorporated on 12 January 2016.
[3]QUBE Projects was incorporated on 15 April 2015.
Each of these companies had a liquidator appointed:
a) QUBE North on 3 April 2017; and
b) QUBE Projects on 24 May 2017.
Records of the Australian Securities and Investments Commission (‘ASIC’) and Victorian Building Authority suggest that Buchanan may have had a beneficial interest in…

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: [2019] QCAT 354
Decision Date: 20 November 2019

CaseChat Overview and Summary

Buchanan v Queensland Building and Construction Commission was a matter in which the Applicant, Mr Buchanan, sought a review of decisions made by the Queensland Building and Construction Commission (Commission) regarding his eligibility for a contractor's licence. The Commission had decided that Mr Buchanan was ineligible for a contractor's licence due to the insolvency of QUBE North and QUBE Projects, companies with which Mr Buchanan was associated. The case was heard in the Queensland Civil and Administrative Tribunal (QCAT).

The central legal issue in the case was whether the insolvency of QUBE North and QUBE Projects were separate events or a single set of circumstances that should be considered together for the purposes of determining Mr Buchanan's eligibility for a contractor's licence. The tribunal needed to interpret section 56AC(2)(c)(ii) of the Queensland Building and Construction Commission Act 1991 (Qld) to determine the period of liability and whether Mr Buchanan was a permanently excluded individual.

The tribunal held that the liquidation of QUBE North and QUBE Projects were two separate events and not consequences flowing from the same set of circumstances. This interpretation was based on the fact that the liquidation of QUBE North was the result of its own financial difficulties and insolvency, whereas the liquidation of QUBE Projects was due to the insolvency of its parent company, QUBE Holdings. Therefore, the tribunal concluded that the insolvency of QUBE Projects was not a consequence of the same set of circumstances that led to the insolvency of QUBE North. Consequently, the decision regarding QUBE North was upheld, but the decision regarding QUBE Projects was set aside as it was based on an incorrect interpretation of the relevant legislation.

The tribunal ordered that the decision of the Respondent made on 16 May 2017 in respect of QUBE North be confirmed, and the Respondent was to set a date which it deemed appropriate from which the licences of the Applicant were to be cancelled for the period prescribed by law. Additionally, the decision of the Respondent made on 1 September 2017 in respect of QUBE Projects was set aside and of no effect.

Orders

Orders of the court

In OCR121-17:

1. The decision of the Respondent made on 16 May 2017 in respect of QUBE North is confirmed.

2. The Respondent is to set a date which it deems appropriate from which the licences of the Applicant are to be cancelled for the period prescribed by law.

In OCR215-17:

1. The decision of the Respondent made on 1 September 2017 in respect of QUBE Projects is set aside and of no effect.

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

The liquidation of QUBE North and QUBE Projects did not flow from what is, in substance, the one set of circumstances.Decision The decision of the Respondent made on 16 May 2017 in respect of QUBE North is confirmed. The Respondent is to set a date which it deems appropriate from which the licences of the Applicant are to be cancelled for the period prescribed by law. The decision of the Respondent made on 1 September 2017 in respect of QUBE Projects is set aside and of no effect.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Buchanan v Queensland Building and Construction Commission [2019] QCAT 354
PARTIES:	CASEY BUCHANAN (applicant)
v
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent)
APPLICATION NO:	OCR121-17; OCR215-17
MATTER TYPE:	Occupational regulation matters
DELIVERED ON:	20 November 2019
HEARING DATE:	18 March 2019; 22 October 2019
HEARD AT:	Brisbane
DECISION OF:	Member Dr Collier
ORDERS:	In OCR121-17: 1. The decision of the Respondent made on 16 May 2017 in respect of QUBE North is confirmed. 2. The Respondent is to set a date which it deems appropriate from which the licences of the Applicant are to be cancelled for the period prescribed by law. In OCR215-17: 1. The decision of the Respondent made on 1 September 2017 in respect of QUBE Projects is set aside and of no effect.
CATCHWORDS:	STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – interpretation of the Queensland Building and Construction Commission Act 1991 (Qld) – period of liability under s 56AC(2)(c)(ii) of the Queensland Building and Construction Commission Act 1991 (Qld) – excluded individual – permanently excluded individual – construction company – liquidation – relevant event – when two events are consequences flowing from what is, in substance, the one set of circumstances Acts Interpretation Act 1954 (Qld), s 20(2), s 20(3), s 20C Building Industry Fairness (Security of Payment) Act 2017, s 271 Professional Engineers and other Legislation Amendment Bill 2014 (Qld) Queensland Building and Construction Commission Act 1991 (Qld), s 4AA(1), s 56AC, s 56AC(2)(c)(ii), s56AC(3), s56AC(4), s 56AC(5), s 56AF, s 56AF(3), s 58, s 59(a) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24, s 24(2)(b) D’Arro v Queensland Building and Construction Commission [2017] QCA 90 Dixie v Royal Columbian Hospital (1941) 2 DLR 138 Jensen v Queensland Building and Construction Commission [2017] QCAT 232 Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537 Paddon v Queensland Building and Construction Commission [2018] QCAT 100 Vickers v Queensland Building and Construction Commission & Ors [2019] QCA 66
APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
Respondent:	M Robinson, solicitor