Doyle v Queensland Building Services Authority

[2010] QCAT 98

CITATION: Doyle v Queensland Building Services Authority [2010] QCAT 98

PARTIES:   Phillip John Doyle

V

Queensland Building Services Authority

APPLICATION NUMBER:            OCR017-10

MATTER TYPE:   

HEARING DATE:   29 January 2010

HEARD AT:   Brisbane

DECISION OF:   C Endicott, senior member

DELIVERED ON:   29 January 2010

DELIVERED AT:   Brisbane

ORDERS MADE:   Stay application granted

CATCHWORDS: Application for stay – section 22 of Queensland Civil and Administrative Tribunal Act 2009

APPEARANCES and REPRESENTATION (if any):

The hearing took place on the papers in the absence of parties.

REASONS FOR DECISION

HISTORY OF THE APPLICATION

1. An application was made to the Queensland Civil and Administrative Tribunal on 18 January 2010 by Phillip John Doyle (the applicant) seeking a review of a decision of the Queensland Building Services Authority (the respondent) made on 21 December 2009 to suspend the applicant’s licence number 77678. The applicant has sought a stay of the decision under review. 

ISSUES AND THE LEGISLATION

1. Under section 22 of the Queensland Civil and Administrative Tribunal Act 2009 (the Act), the Tribunal can make an order to stay a decision only if it considers it desirable after having regard to the interests of any person whose interests may be affected by the making of, or declining of, a stay order, having regard to any submissions made to the Tribunal by the decision maker and having regard to the public interest.   

2. The respondent is a statutory body established by the Queensland Building Services Authority Act 1991. That Act establishes the statutory insurance scheme administered by the respondent. 

3. Section 111(c) of the Queensland Building Services Authority Act 1991 provides that a director of a company is liable to pay to the Queensland Building Services Authority the amount owed by the company for a payment made by the Authority on a claim under the insurance scheme.

4. Section 48 of the Queensland Building Services Authority Act 1991 provides the power for the Queensland Building Services Authority to suspend a licence if the licensee owes an amount to the Authority and fails to comply with a demand to discharge the debt.       

SUBMISSIONS

6. The applicant made written submissions that it was unreasonable to suspend his licence in circumstances where the company of which he was a director had not been given the opportunity to assess the scope of work to rectify the alleged defects, where the applicant was not given the opportunity to rectify the work, where details of the amount claimed for rectification had not been given to the applicant and where he has an ability to pay the debt.     
7. The respondent made written submissions on the issue of a stay order.  The respondent opposes the making of a stay order.  The respondent submitted that the company of which the applicant was a director had been provided with an opportunity to rectify the work and was sent four scope of works between 2 July 2009 and 22 October 2009.
8. The respondent submitted that the applicant had been notified by letter dated 4 November 2009 of the amount of payment made under the insurance scheme and that he had not discharged the debt by the date of the decision under review. 
9. The respondent submitted that there is no serious issue to be tried in the application for review of the respondent’s decision as the applicant has conceded that the company had carried out defective work, he had inspected the defective work and had made no attempt at rectification.   It was submitted that the applicant has not denied the existence of the debt but merely challenges the amount of the debt.
10. It was further submitted by the respondent that the balance of convenience does not favour a stay of the decision.  It was submitted that a preliminary view could be reached that the applicant does not meet the requirements for holding a licence as he is unable to pay the debt, he is at risk of being unable to pay debts to other licensees and suppliers, his actions may unfairly place other licensees at risk, and the applicant’s ability to earn an income will not be irretrievably lost if a stay were not granted as he could earn an income as an employee.     

CONCLUSION

11. The Tribunal has had regard to the submissions made by the applicant which in effect dispute the timing of the actions of the respondent and   the amount of the debt clamed by the respondent. The applicant has not taken the opportunity in the submissions about his stay application to address any issue as to how his interests will be affected in the event that a stay of the decision is not made.  However it is not unreasonable in the view of the Tribunal to draw an inference that the applicant is likely to suffer economic loss as a result of the suspension of his licence.  
12. The Tribunal notes that the essence of the submissions made by the respondent is that the usual elements that would support discretionary relief such as a stay order are not present in this case.  The respondent submits that concessions made by the applicant dispose of any triable issue in the review and that deleterious impacts on other persons would ensue if a stay were to be granted in this case.      
13. Although the submissions made by the respondent are more relevant to the issues generally considered in a stay application than the submissions made by the applicant, the Tribunal considers that the respondent’s submissions on the absence of any issues left to be tried may have oversimplified the case put by the applicant in his review application.  
14. It appears to the Tribunal that the applicant is not merely disputing the amount of the debt but he is also disputing the probity of the actions of the respondent in suspending his licence in circumstances where he alleges that he had not been provided with an adequate opportunity to rectify any defective work carried out by his company and where there was a mistaken belief that he was unable to pay the amount claimed.  The Tribunal is satisfied that the review calls into consideration some serious issues to be tried.  
15. The applicant submits that he does have the financial capacity to pay the debt claimed by the respondent. The Tribunal has no information to reject that submission as the liquidation of a company brought about by insolvency factors does not inevitably mean that its directors are unable to pay their debts.     
16. On the basis that the Tribunal accepts the submissions made by the applicant that he can pay the amount claimed against him, the submissions made by the respondent on the balance of convenience are not sustainable.  The Tribunal is not satisfied that granting the stay will deleteriously impact on the interests of other persons.    
17. For the purposes of the stay application, the Tribunal should have regard to the public interest.  The Tribunal recognises that there is considerable advantage to the public in having a statutory insurance scheme in the building industry that is effective and fair both to the consumer and to the builder.  The Tribunal should be reluctant to implement an outcome that would expressly or inadvertently undermine the integrity of the scheme in a case where an applicant has not provided sufficient cogent information in support of a stay application.    
18. However in this case the Tribunal is not satisfied that granting a stay would tend to undermine the insurance scheme having found that there are sufficient triable issues in the review application. It would be consistent with the reasonable expectations of the public that a builder is permitted to carry on with his income earning activities while a review is undertaken of the basis for the decision made by the respondent to suspend his licence when serious triable issues have been raised.     
19. The Tribunal is satisfied that it is desirable to grant a stay of the decision until the review in this case is completed.   
20. The application for a stay of the decision of the respondent made on 21 December 2009 is allowed and a stay is granted until the review of that decision is completed by the Tribunal.