Buckley v Queensland Building Services Authority - [2013] QCAT 469

CITATION:

Buckley v Queensland Building Services Authority [2013] QCAT 469

PARTIES:	Gregory Raymond Buckley (Applicant)
v
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER:

OCR281-12

MATTER TYPE:

Building matter

HEARING DATE:

12 August 2013

HEARD AT:

Brisbane

DECISION OF:

Susan Gardiner, Member

DELIVERED ON:

3 September 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the Authority dated 1 June 2012 to categorise Mr Buckley as an excluded individual in relation to the event, the liquidation of T & M Buckley Pty Ltd, is set aside.

CATCHWORDS:

EXCLUDED INDIVIDUAL - Where the applicant neither a director or shareholder of the company – Where the applicant was styled as General Manager/Construction Manager – Where illness prevented attention to duties – Where facts did not support applicant as Greg was exercising control or substantial influence exercising control or substantial influence

Queensland Building Services Authority Act 1991 ss 56AC

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Ms Karen Schwede Solicitor represented
Mr Buckley

RESPONDENT:

Mr Malcolm Robinson Solicitor represented the QBSA

REASONS FOR DECISION

On 31 May 2012, receivers were appointed for T & M Buckley Pty Ltd trading as Shailer Constructions. Terence Buckley was the managing and sole director of T & M Buckley at that time.

Gregory Buckley (Greg) is Terence Buckley’s oldest son. He has worked in his father’s company since starting his apprenticeship, working his way up through the various part of the company. As a succession plan, it was Terry Buckley’s intention at some time in the future for Greg to take over the reins of the company.

At the time T & M Buckley had receivers appointed, Greg Buckley had the self-styled title of “General Manager/Construction Manager” for the company. Greg was neither a director nor shareholder of T & M Buckley.

The Building Services Authority considered Greg an influential person in T & M Buckley at the time the receivers were appointed and as he had a building licence himself. It determined on 1 June 2012 that Greg was an excluded individual under section 56AC of the Queensland Building Services Authority Act 1991.

Greg Buckley has applied to QCAT for a review of this decision. The purpose of a review is for the Tribunal to produce the correct and preferable decision. To achieve this, the Tribunal must conduct a fresh hearing on the merits[1]. In considering the matter a fresh, it is the Tribunal’s function to review the decision and not the process by which it was arrived at nor the reasons for it. The Tribunal is not required to identify any error in either the process or reasoning that lead to the decision being made. There is no presumption the original decision is correct [2].

[1] QCAT Act s 20(1) & (2) .

[2] Kehl v Board of Professional Engineers of Queensland (2010) QCATA 58 at [9].

At the hearing, the parties agreed that the issue for determination by the Tribunal is as follows:
a)Whether or not Greg Buckley was influential in the affairs of…

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: [2013] QCAT 469
Decision Date: 3 September 2013

CaseChat Overview and Summary

The dispute in Buckley v Queensland Building Services Authority involved Mr Buckley, who sought to overturn a decision by the Queensland Building Services Authority to classify him as an excluded individual in relation to the liquidation of T & M Buckley Pty Ltd. The case was heard in the Queensland Land Court. The legal issues at the heart of the case centred on whether Mr Buckley could be considered an excluded individual under the relevant legislation, given his role as General Manager/Construction Manager of the company. The crux of the matter was whether Mr Buckley exercised control or substantial influence over the company, despite his absence due to illness.

The court examined the facts closely, determining that Mr Buckley's role as General Manager/Construction Manager did not necessarily equate to him being an excluded individual. The court considered whether he exercised control or substantial influence over the company's operations, a requirement for being an excluded individual. Given that Mr Buckley's illness had prevented him from attending to his duties, the court found that he did not exercise the requisite control or influence. The court was also persuaded by the fact that Greg, another individual, was exercising control over the company. This evidence was sufficient to conclude that Mr Buckley did not meet the criteria for being an excluded individual.

The court concluded that the decision to classify Mr Buckley as an excluded individual was not supported by the facts. As a result, the decision of the Authority dated 1 June 2012 was set aside. This outcome underscored the necessity for a clear demonstration of control or substantial influence to classify an individual as an excluded person under the relevant statutory framework.

Orders

Orders of the court

1. The decision of the Authority dated 1 June 2012 to categorise Mr Buckley as an excluded individual in relation to the event, the liquidation of T & M Buckley Pty Ltd, 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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