Gallagher v QBSA

[2010] QCAT 383

CITATION: Gallagher v Queensland Building Services Authority [2010] QCAT 383

PARTIES:	Mr Dean John Gallagher
v
Queensland Building Services Authority

APPLICATION NUMBER:   QR155-07      

MATTER TYPE: General administrative review matters

HEARING DATE:      19 July 2010

HEARD AT:     Brisbane

DECISION OF: Mr Richard Oliver

DELIVERED ON: 18 August 2010

DELIVERED AT:       Brisbane

ORDERS MADE: 1. The decision of the respondent made on the 16 August 2007 is set aside.
2. The applicant be categorised as a permitted individual.
3. The application for an extension of time to review a decision granted.
4. The application to review the decision to categorise the applicant as an excluded individual is dismissed.
5. Application OCR092-10 and QR309-09 are to be consolidated into QR155-07.

CATCHWORDS :  Excluded individual and permitted individual; re-registration of a company for the for the purposes of winding up; whether the applicant was a director of the company within 12 months of the relevant event; whether winding up of company for the benefit of a creditor; consideration of “benefit”; whether reliance on generic advice provided by applicant’s accountant amounted to reasonable steps; the extent to which the respondent relied on the evidence of the applicant without corroboration in considering the application; distinction between reliance on evidence as opposed to submissions made to a court.

APPEARANCES and REPRESENTATION:

APPLICANT  :	Dean John Gallagher represented by Mr Fleming QC, of counsel instructed by Morgan Conley Solicitors
RESPONDENT:	Queensland Building Services Authority represented by Mr Robinson, solicitor of Forbes Dowling Solicitors

REASONS FOR DECISION

1. Mr Gallagher was a former Director of Dean Gallagher Developments Pty Ltd (“the company”).  The company carried on the business of building and developing principally commercial sites, tilt panel buildings and showrooms.

1. On 1 December 2006 the company was ordered to be wound up with liquidators appointed. As a consequence of this the applicant became an excluded individual pursuant to section 56AD(4) of the Queensland Building Services Authority Act (“QBSA Act”). He then applied to become a permitted individual pursuant to section 56AC. The Queensland Building Services Authority (the Authority) considered the application and refused to categorise him as a permitted individual.

1. This is an application to review that decision.

1. The applicant also filed an application to renew the Authority’s decision to categorise the applicant as an excluded individual in file OCR155-07.  As this application was out of time the applicant filed an application for an extension of time to file this review application.  Both these applications were considered during this hearing.

Background

1. In March 2004 the company ceased trading.  On 30 July 2004 the company lodged its final tax returns and on 9 September 2004 it lodged an application with the Australian Securities and Investment Commission to be deregistered.  At the time of the application to deregister there were no outstanding creditors and in particular, no notices from the Australian Tax Office (“ATO”) for outstanding tax. 

1. At all times during this process, Mr Gallagher said, and I accept, he relied on the advice and assistance of his accountant Mr Andrew Daley…