Burman v Queensland Building and Construction Commission - [2015] QCAT 315

CITATION:

Burman v Queensland Building and Construction Commission [2015] QCAT 315

PARTIES:	Jason Burman (Applicant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER:

OCR136-14

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

15 April 2015

HEARD AT:

Brisbane

DECISION OF:

Member Paratz

DELIVERED ON:

4 August 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the QBCC made on 2 June 2014 not to categorise Jason Burman as a permitted individual is confirmed.

CATCHWORDS:

BUILDER – PERMITTED INDIVIDUAL – Whether a plumber took all reasonable steps to avoid the company being put into receivership – where the plumber had a serious gambling addiction – whether reasonable is to be applied as an external standard or is to be assessed on an individual basis

Queensland Building and Construction Commission Act 1991 (Qld), s 3, s 56AC, s 56AD

Hyde v QBSA [2003] QBT 30
Muir v Franklins [2001] QCA 173
Queensland Building Services Authority v Meredith [2013] QCATA 152
Queensland Building and Construction Commission v Meredith [2014] QCA 62
Younan v Queensland Building Services Authority [2010] QDC 158

APPEARANCES:

APPLICANT:

Ms Sweetapple of Counsel (Direct Brief)

RESPONDENT:

Ms Taylor (In-House Solicitor)

REASONS FOR DECISION

Mr Burman held a licence as a plumber. He was a Director of Namreh Pty Limited (“the company”). Liquidators were appointed to the company on 6 December 2013.
The Queensland Building and Construction Commission (“QBCC”) advised Mr Burman on 2 May 2014 that it considered him to be an excluded individual pursuant to s 56AC of the Queensland Building and Construction Commission Act 1991 (Qld) (‘the Act’).
Mr Burman applied to the QBCC on 30 May 2014 to be categorised as a permitted individual pursuant to s 56AD(1) of the Act. The QBCC made a decision on 2 June 2014 refusing to categorise him as a permitted individual.
Mr Burman filed an Application to Review the decision of the QBCC in the Tribunal on 27 June 2014. The application was heard by an oral hearing on 15 April 2015. This is the decision on the Application.

The situation

The facts in this matter, and the circumstances leading up to the liquidation are not in dispute.
The company was placed into liquidation by the Australian Taxation Office (‘ATO’) due to an unpaid tax liability.
A tax liability of $63,047.00 was notified to Mr Burman in August 2009. He negotiated a payment arrangement with the ATO, and started paying $300 per week towards the debt. Despite those payments, and including interest charges, the debt to the ATO increased to $92,910.00 by December 2010. Mr Burman borrowed an extra $90,000.00 from a bank in 2011 by taking out a second mortgage on his house, and paid $50,000.00 to the ATO and $40,000.00 to other creditors. However, he was unable to discharge the tax obligations, or reach further arrangements with the ATO by December 2013, and it placed the company into liquidation.
Mr Burman readily admits the tax liability, and concedes that his management of the company in the…

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.

Keep reading for free

Create a free CaseChat account to read Burman v Queensland Building and Construction Commission and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] QCAT 315
Decision Date: 4 August 2015

CaseChat Overview and Summary

The case of Burman v Queensland Building and Construction Commission pertains to the eligibility of Jason Burman, a licensed plumber, to be recognised as a permitted individual by the Queensland Building and Construction Commission (QBCC). The QBCC had declined to categorise Burman as a permitted individual due to concerns about his personal financial situation and a gambling addiction, which potentially placed his company at risk of receivership. Burman contested this decision, arguing that he had taken all reasonable steps to avoid the company being put into receivership.

The primary legal issue in the case was whether the term "reasonable steps" should be interpreted as an objective external standard or subjectively, based on the individual's personal circumstances. The court had to determine whether Burman, given his specific situation and the knowledge of his gambling addiction, had indeed taken all reasonable steps to safeguard his company's financial stability. The court also needed to assess the QBCC's decision-making process and whether it was justified in denying Burman the status of a permitted individual.

In its decision, the court upheld the QBCC's ruling, affirming that the term "reasonable steps" should be assessed from an external perspective, considering what a prudent person in Burman's position would have done. The court found that Burman had not taken sufficient steps to ensure that his company was not at risk of financial instability due to his gambling addiction. Consequently, the QBCC's decision to not categorise Burman as a permitted individual was deemed appropriate and reasonable. The court confirmed the QBCC's decision, finding no grounds for Burman's appeal.

Orders

Orders of the court

1. The decision of the QBCC made on 2 June 2014 not to categorise Jason Burman 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

Full text does not contain this section.