Dancey v Queensland Building Services Authority - [2014] QCAT 173

CITATION:

Dancey v Queensland Building Services Authority [2014] QCAT 173

PARTIES:	Adam Lucas Dancey (Applicant)
v
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER:

OCR091-12

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

13 September 2013

HEARD AT:

Brisbane

DECISION OF:

Member F FitzPatrick

DELIVERED ON:

30 April 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

The decision of the Queensland Building Services Authority dated 14 February 2012 refusing to categorise Mr Dancey as a permitted individual is confirmed.

CATCHWORDS:

OCCUPATIONAL REGULATION – APPLICATION FOR CATEGORISATION AS PERMITTED INDIVIDUAL– where applicant was bankrupt – whether he took all reasonable steps to avoid the happening of the circumstances that resulted in his bankruptcy – where applicant did not take appropriate legal and financial advice – where applicant gave personal guarantees for company liabilities without adequate assets to cover them – where applicant did not make appropriate provision for his taxation debts

Queensland Building Services Authority Act 1991 s 56AD(8)
Queensland Civil and Administrative Tribunal Act 2009 ss 20, 24

Younan v QBSA [2010] QDC 158
Smith v Queensland Building Services Authority [2012] QCAT 58
Spedding v Queensland Building Services Authority [2012] QCAT 516
QBCC v Meredith [2014] QCA 62
McDonald v DG of Social Security (1984) 1FCR 354
Szbel v Minister for Immigration (2006) 228 CLR 152
Queensland Building and Construction Commission v Vadasz [2014] QCATA 001

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Adam Lucas Dancey represented by Ms Susan McNeil of Counsel instructed by Dillon Lawyers

RESPONDENT:

Queensland Building Services Authority represented by Mr Malcom Robinson of Robinson Locke Litigation Lawyers

REASONS FOR DECISION

Part 3A of the Queensland Building Services Authority Act 1991[1] is designed to exclude individuals from the building industry for a 5-year period if they demonstrate their “incapacity to manage”:[2]

a) their own finances; or
b) the finances of a company of which they are a director, secretary or influential person.

[1]As it was at the material time.

[2]Explanatory notes to Bill introducing part 3A.

The authority must not grant a licence to an excluded individual.[3] If an individual is twice excluded from holding a licence, they face permanent exclusion[4], on the basis that they are no longer a fit and proper person to hold a licence.[5]
[3]Queensland Building Services Authority Act 1991 (QBSAA) s 56AE.
[4]Ibid s 58.
[5]Ibid s 60. Where there are two bankruptcy events or two company events flowing from the one set of circumstances the Act only registers one exclusion event on each count-56AC 5) and 6). However there is no similar discounting provision in relation to successive company and bankruptcy events flowing from the one set of circumstances.

Mr Dancey was the sole director and shareholder of First Fire Protection Pty Ltd (FFP) at the time of a receiver and manager being appointed on 11 September 2007. The Queensland Building Services Authority sent a notice to Mr Dancey notifying him that he had become an “excluded individual” under s 56AC of the QBSAA as a result of the company event.

Mr Dancey…

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 173
Decision Date

CaseChat Overview and Summary

Adam Lucas Dancey applied to the Queensland Civil and Administrative Tribunal for a review of the Queensland Building Services Authority’s decision not to categorise him as a permitted individual for the purposes of the Queensland Building Services Authority Act 1991. The applicant sought to be categorised as a permitted individual in relation to two events: the first, the appointment of a receiver and manager to First Fire Protection Pty Ltd on 11 September 2007, and the second, his bankruptcy on 21 September 2009. The applicant has since withdrawn his application in relation to the company event. The Tribunal is required to consider whether the applicant took all reasonable steps to avoid the circumstances that resulted in his bankruptcy. The legislation provides that a person will not be categorised as a permitted individual unless the authority is satisfied, on the basis of the person’s application, that the action the person took with respect to the prescribed financial management responsibilities amounted to taking reasonable steps to avoid the circumstances leading to the bankruptcy event. The Tribunal is not satisfied that Mr Dancey took all reasonable steps to avoid the circumstances which resulted in the bankruptcy event, and so confirms the Authority’s decision to refuse the applicant’s application to be categorised as a permitted individual.

Orders