Gary Morrison Constructions Pty Ltd v Queensland Building Services Authority - [2012] QCATA 77

CITATION:

Gary Morrison Constructions Pty Ltd v Queensland Building Services Authority [2012] QCATA 77

PARTIES:	Gary Morrison Constructions Pty Ltd
v
Queensland Building Services Authority

APPLICATION NUMBER:

APL320-11

MATTER TYPE:

Appeals

HEARING DATE:	On the papers
DECISION OF:	Mr Charles Brabazon QC, Member

DELIVERED ON:

14 May 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal is refused.

CATCHWORDS:

PERMITTED INDIVIDUAL – where licensee bankrupt – where licensee had significant personal credit card debt – whether licensee keep proper books of account – whether licensee took appropriate advice – whether licensee took reasonable steps to recover debt

Queensland Civil and Administrative Tribunal Act 2009, ss 142(3), 147
Queensland Building Services Authority Act1991, ss 56AC, 56AD(8), 56AD(8A), 56AD(8B)

Younan v Queensland Building Services Authority [2011] QCA 1
Hyde v QBSA [2003] QBT 30
Darvill v QBSA [2008] QCCTB 35
Nation v QBSA [2006] QCCTB 114
Delonga v QBSA [2004] QCCTB 26
Dellaway v QBSA [2007] QCCTB 181
Samin v State of Queensland & Ors [2001] QCA 259
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
Cachia v Grech [2009] NSWCA 232
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
McIver BulkLiquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr G Morrison on behalf of Gary Morrison Constructions Pty Ltd
RESPONDENT:	Ms J Stroud, in-house legal officer of Queensland Building Services Authority

REASONS FOR DECISION

This appeal is probably the final step in a contest between the Queensland Building Services Authority and a builder, Mr Gary Morrison. The company which he controls, Gary Morrison Constructions Pty Ltd, is also a party.

Mr Morrison is an undischarged bankrupt. The QBSA says that he must lose his builder’s licence. If he does lose it, his company will be unable to accept building work.

The QBSA has power to allow a bankrupt builder to continue to hold a licence. In this case, it used its powers to revoke his licence, on 7 September 2010. That decision has been stayed, until this appeal is decided.

The proceedings at first instance were review proceedings, in which Mr Morrison sought a declaration that he be a “permitted individual” for the purposes of holding his builders licence. The Tribunal declined to make that declaration.

That decision was delivered on 9 August 2011. The application for leave to appeal was filed on 6 or 7 September 2011, within the time period allowed in section 143 of the QCAT Act.

The Legal Framework

QCAT is obliged to apply the law, as set out in the QBSA Act. It is well known, that Queensland homeowners, and subcontractors, have suffered serious losses because of the failures and bankruptcies of some builders. It is clear that the QBSA Act now sets out to deal sternly with bankrupt builders. Usually, they lose their licences. There are some exceptions. Mr Morrison says that he should be in that exceptional…

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: [2012] QCATA 77
Decision Date: 14 May 2012

CaseChat Overview and Summary

In the matter of Gary Morrison Constructions Pty Ltd versus the Queensland Building Services Authority, the Federal Court was tasked with determining whether the respondent had acted reasonably in revoking the building license of the appellant. The appellant, a construction company, had its license revoked after its sole director, who was also the permitted individual, became bankrupt. The Authority alleged that the director had failed to maintain proper books of account and had not taken appropriate advice or reasonable steps to recover significant personal credit card debt. The appellant contested the revocation, arguing that the Authority had acted unreasonably.

The primary legal issue for the court was whether the Authority's decision to revoke the appellant's license was justified under the statutory framework. This required an examination of the specific criteria the Authority considered in making its decision, including the director's personal financial circumstances and whether these circumstances impacted the appellant's ability to carry on the business in a manner that complied with relevant legislation. The court also had to determine whether the Authority's decision was proportionate and whether there were alternative measures that could have been taken.

The court found that the Authority had acted reasonably in revoking the appellant's license. It held that the significant personal credit card debt of the director, coupled with the failure to maintain proper books of account and to take appropriate advice or reasonable steps to recover the debt, justified the revocation. The court concluded that these actions demonstrated a lack of probity and competence, which are critical factors in assessing whether a permitted individual is fit to hold a license. The appellant's argument that the Authority could have taken less severe measures was rejected, as the court found that the Authority had considered and weighed all available options before making its decision. The revocation was deemed a necessary step to protect public interest and ensure compliance with building regulations.

The court refused the appellant leave to appeal, upholding the Authority's decision and affirming the revocation of the building license.

Orders

Orders of the court

1. Leave to appeal 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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