Cashen v Queensland Building and Construction Commission - [2014] QCAT 362

CITATION:

Cashen v Queensland Building and Construction Commission [2014] QCAT 362

PARTIES:	Mark Raymond Cashen ATF Cashen Family Trust (Applicant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER:

GAR387-13

MATTER TYPE:

General administrative review matters

HEARING DATE:

15 July 2014

HEARD AT:

Brisbane

DECISION OF:

Senior Member Oliver

DELIVERED ON:

29 July 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the respondent dated 8 October 2013 is set aside and in lieu thereof there be a decision that the applicant be categorised as a permitted individual.

CATCHWORDS:

PERMITTED INDIVIDUAL – where applicant declared bankrupt – where applicant contends the cause of the bankruptcy were the circumstances that developed to a marital breakdown – longstanding marriage – where building business deteriorated – where applicant took steps to liquidate assets to avoid bankruptcy

Queensland Building and Construction Commission Act 1991 (Qld), s 56AD
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20

Younan v Queensland Building and Services Authority [2010] QDC 158

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mark Cashen in person

RESPONDENT:

Ms Kaye Joyce, in-house legal officer

REASONS FOR DECISION

Mr Cashen holds a building licence, medium rise. On 19 October 2012 he entered into bankruptcy. As a consequence of his bankruptcy, the Queensland Building and Construction Commission (‘the Commission’) notified him on the 12 September 2013 that he was categorised as an excluded individual, meaning that his building licence would be cancelled. To avoid cancellation, he applied to the Commission on 2 October 2013 to be categorised as a permitted individual. On 8 October 2013 the Commission considered his application to be so categorised but was not satisfied that he took all reasonable steps to avoid the coming into existence of the circumstances that resulted in his bankruptcy. Mr Cashen then filed an application to review that decision on 5 November 2013.
The Tribunal’s function in a review proceeding is to produce the correct and preferable decision by way of a fresh hearing on the merits.[1] For Mr Cashen to be categorised as a permitted individual, he must satisfy the test set out in s 56AD(8) of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) which provides:
(8)The commission may categorise the individual as a permitted individual for the relevant event only if the commission is satisfied, on the basis of the application, that the individual took all reasonable steps to avoid the coming into existence of the circumstances that resulted in the happening of the relevant event.
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 20.
Section 56AD(8A) also sets out other matters that the decision-maker must have regard to in determining whether or not the applicant has taken all reasonable steps. Those matters are as follows:
(a)keeping proper books of account and financial records;
(b)seeking appropriate financial or legal advice before entering into financial or business arrangements or conducting business;
(c)reporting fraud or theft to the police;
(d)ensuring guarantees provided were covered by sufficient assets to…

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: [2014] QCAT 362
Decision Date

CaseChat Overview and Summary

The case of Cashen v Queensland Building and Construction Commission involved Mark Raymond Cashen, who held a building licence, and the Queensland Building and Construction Commission. The dispute arose from the Commission's decision to categorise Cashen as an excluded individual following his bankruptcy, which resulted in the potential cancellation of his building licence. Cashen applied to be categorised as a permitted individual, a status that would allow him to retain his licence despite his bankruptcy. The Tribunal was required to determine whether Cashen had taken all reasonable steps to avoid the circumstances that led to his bankruptcy.

The legal issue before the Tribunal was whether Cashen had fulfilled the criteria set out in section 56AD(8) of the Queensland Building and Construction Commission Act 1991, which mandates that an individual must have taken all reasonable steps to avoid the circumstances that led to their bankruptcy. The Tribunal considered the factors outlined in section 56AD(8A) and applied the test established in Younan v Queensland Building and Services Authority. The Tribunal found that Cashen's bankruptcy was primarily a result of the breakdown of his marriage and the subsequent financial difficulties he faced. Despite these challenges, Cashen took several steps to mitigate the financial impact, including seeking professional advice, arranging for payment holidays with his creditors, and attempting to sell his matrimonial home.

The Tribunal concluded that Cashen had taken all reasonable steps to avoid the circumstances that led to his bankruptcy. The breakdown of his marriage and the associated financial difficulties were unforeseen events that significantly impacted his ability to manage his business and meet his financial obligations. Given the circumstances, the Tribunal found that Cashen's actions were reasonable and that he had met the criteria for being categorised as a permitted individual.

In light of the Tribunal's findings, the decision of the respondent was set aside, and Cashen was categorised as a permitted individual. This outcome allowed Cashen to retain his building licence despite his bankruptcy.

Orders