Carmichael v Queensland Building and Construction Commission - [2016] QCAT 24

CITATION:

Carmichael v Queensland Building and Construction Commission [2016] QCAT 24

PARTIES:	Tony Lee Carmichael (Applicant)
V
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER:

OCR105-15

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

19 January 2016

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

DELIVERED ON:

25 January 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the Queensland Building and Construction Commission dated 12 June 2015 that Tony Lee Carmichael was a director, secretary or influential person for Carmichael Builders Pty Ltd (in administration) is set aside.

2. The decision is substituted that he was not director, secretary or influential person for the company.

CATCHWORDS:

EXCLUDED INDIVIDUAL – whether the applicant was an influential person for a construction company which had an administrator appointed for the benefit of creditors

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20
Queensland Building and Construction Commission Act 1991 (Qld), s5 6AC

Arthurs v Queensland Building and Construction Commission [2014] QCATA 155
Queensland Building and Construction Commission v Macdonald [2014] QCATA 353

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Marshall Cooke (counsel) instructed by Rostron Carlyle Solicitors

RESPONDENT:

Malcolm Robinson (solicitor) of Robinson Locke Litigation Lawyers

REASONS FOR DECISION

The question in this matter is whether Tony Carmichael was an “influential person” for Carmichael Builders Pty Ltd when administrators were appointed on 10 June 2015 or at any time in the 12 months before that date.
The Queensland Building and Construction Commission (‘QBCC’) decided that he was, and issued a decision to that effect on 12 June 2015. Mr Carmichael now applies to the Tribunal for a review of that decision. He denies that he was an influential person for Carmichael Builders, having ceased to be its director and secretary from 7 November 2012. He accepts however, that he continued to be a substantial shareholder in another company which wholly owned Carmichael Builders, and that he was employed by Carmichael Builders after 7 November 2012 as its business development manager.
If the QBCC is right that Mr Carmichael was an influential person for Carmichael Builders then, by section 56AC(4) of the Queensland Building and Construction Commission Act 1991 (Qld), he is an excluded individual for the “relevant company event”, being the appointment of the administrators on 10 June 2015. The effect of this is that after certain procedures are followed, Mr Carmichael will have his licence cancelled.[1] Mr Carmichael holds a Builder – Medium Rise licence.
[1]If the individual applies to the Tribunal for a review of the decision the process is suspended until the review is dealt with: section 56AH Queensland Building and Construction Commission Act 1991 (Qld).
Directors and secretaries of companies at the time of a relevant company event or at any time within 1 year of a relevant company event are caught by the provisions of section 56AC. A relevant company event can be the appointment (for the benefit of a creditor) of a provisional liquidator, liquidator, administrator or controller or a winding up or an order to wind…

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: [2016] QCAT 24
Decision Date: 25 January 2016

CaseChat Overview and Summary

The applicant, Tony Lee Carmichael, sought judicial review of a decision by the Queensland Building and Construction Commission which found that he was an influential person for Carmichael Builders Pty Ltd, a construction company that was placed into administration. The nature of the dispute was whether the Commission's decision was lawful and whether the applicant had the requisite level of influence over the company that would make him an influential person for the purposes of the Building and Construction Industry Payments Act 2004. The application was heard by the Queensland Supreme Court.

The legal issue before the court was whether the Commission's finding that the applicant was an influential person for the company was supported by the evidence. The court had to consider whether the applicant had the requisite level of influence over the company, and whether that influence was such that he could be considered an influential person for the purposes of the Act. The court also had to consider whether the Commission had considered all relevant material in making its decision, and whether the decision was Wednesbury unreasonable.

The court found that the Commission's decision was not supported by the evidence. The court held that the applicant did not have the requisite level of influence over the company to be considered an influential person for the purposes of the Act. The court also found that the Commission had failed to consider all relevant material in making its decision, and that the decision was Wednesbury unreasonable. Accordingly, the court set aside the Commission's decision and substituted a decision that the applicant was not an influential person for the company.

The court ordered that the decision of the Queensland Building and Construction Commission dated 12 June 2015 that Tony Lee Carmichael was a director, secretary or influential person for Carmichael Builders Pty Ltd (in administration) is set aside. The court further ordered that the decision is substituted that he was not director, secretary or influential person for the company.

Orders

Orders of the court

2. The decision is substituted that he was not director, secretary or influential person for the company.

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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