Ernst v Building Services Authority - [2011] QCATA 155

CITATION:

Ernst v Building Services Authority [2011] QCATA 155

PARTIES:	Mr Victor Andrew Ernst
v
Queensland Building Services Authority

APPLICATION NUMBER:

APL235-10

MATTER TYPE:

Appeals

HEARING DATE:

19 May 2011

HEARD AT:

Brisbane

DECISION OF:

Hon James Thomas, Judicial Member
Ms Kerrie O’Callaghan, Senior Member

DELIVERED ON:

27 June 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

[1] Leave to appeal granted.

[2] The appeal is allowed.

[3] The decision of the Tribunal made on 8 September 2010 is set aside.

[4] On rehearing of the matter, the decision of the Queensland Building Services Authority is confirmed and Mr Ernst’s application to become a “permitted individual” is refused.

CATCHWORDS:

APPEAL – where respondent conceded mixed questions of law and fact and that appeal should proceed – alleged denial of natural justice – where member alleged to have attributed admissions to appellant when admissions not made

REHEARING – where Tribunal decision set aside – where decision in same terms substituted

REVIEW – Queensland Building Services Authority Act 1991 section 56AD – “excluded individual” – group of companies under sole control of appellant, one of which went into administration – whether applicant took all reasonable steps to avoid coming into existence of the circumstances relating to the relevant event

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr Victor Andrew Ernst was represented by Mr Dowd, Solicitor of Dowd and Company Lawyers
RESPONDENT:	Queensland Building Services Authority was represented by Mr Andriatidis, counsel instructed by Forbes Dowling Lawyers

REASONS FOR DECISION

This is an appeal by Mr Ernst against a decision of a QCAT member dated 8 September 2010.

The right to bring such an appeal is subject to the provision of sections 26 and 142 of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act).

It is conceded by the Respondent that questions of law or mixed questions of fact and law arise, and it is appropriate to proceed with the appeal and the arguments that are raised in the submissions.

Background facts

Mr Ernst was at material times the sole director and controller of the following companies:

Freehold Homes Pty Ltd (“Freehold Homes”);

Freehold Constructions Pty Ltd;

V & ME Constructions Pty Ltd (“V & ME Constructions”);

V & ME Pty Ltd;

V & ME (Tas) Pty Ltd;

V & ME Civil Pty Ltd;

Move Homes Pty Ltd.

They are collectively known as the V & ME group.

Through the V & ME group Mr Ernst undertook property development, construction with steel house frames and truss manufacturing activities. The main vehicle for performance of construction work at material times was V & ME Constructions, for which Mr Ernst was the nominee builder’s licence holder.

In April 2009 Freedom Homes became insolvent and entered into a voluntary deed of company arrangement under the administration of Messrs Hambleton and Murphy.

In May 2009 the Queensland Building Services Authority (“QBSA”) advised Mr Ernst that it considered him to be “excluded individual” under section 56AC of the Queensland Building Services Authority Act 1991 (“QBSA Act

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: [2011] QCATA 155
Decision Date: 27 June 2011

CaseChat Overview and Summary

In the appeal of Ernst v Building Services Authority, the parties involved were Ernst, the appellant, and the Building Services Authority, the respondent. The dispute centred around the respondent’s decision to refuse Ernst's application to become a "permitted individual" under the Queensland Building Services Authority Act 1991. Ernst challenged the decision in the Administrative Appeals Tribunal, which was ultimately set aside and replaced with a similar decision upon rehearing. Ernst sought further review, but his application was dismissed.

The court was tasked with determining whether the Tribunal had the authority to review the respondent’s decision on mixed questions of law and fact, and if Ernst had been denied natural justice by the respondent attributing admissions to him that he did not make. Furthermore, the court had to decide whether Ernst, as the controlling individual of a group of companies, had taken all reasonable steps to avoid the circumstances that led to the refusal of his application.

The court found that the Tribunal did have the jurisdiction to review the mixed questions of law and fact inherent in the respondent's decision. It also concluded that Ernst had not been denied natural justice, as the attributed admissions were not pivotal to the decision. The court further determined that Ernst had not taken all reasonable steps to avoid the circumstances that resulted in the refusal of his application. Consequently, the appeal was allowed, the Tribunal's decision was set aside, and the respondent's decision was confirmed on rehearing, refusing Ernst's application to become a "permitted individual".

Orders

Orders of the court

[1] Leave to appeal granted.

[2] The appeal is allowed.

[3] The decision of the Tribunal made on 8 September 2010 is set aside.

[4] On rehearing of the matter, the decision of the Queensland Building Services Authority is confirmed and Mr Ernst’s application to become a “permitted individual” is refused.

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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