GSN Holdings Pty Ltd v Queensland Building and Construction Commission
[2014] QCAT 434
•2 September 2014
| CITATION: | GSN Holdings Pty Ltd v Queensland Building and Construction Commission [2014] QCAT 434 |
| PARTIES: | GSN Holdings Pty Ltd (Applicant) |
| v | |
| Queensland Building and Construction Commission (Respondent) |
| APPLICATION NUMBER: | OCR082-14 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 27 August 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Browne |
| DELIVERED ON: | 2 September 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application made by the Queensland Building and Construction Commission to dismiss the application OCR082-14 under s 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) is refused. 2. The decision made by the Queensland Building and Construction Commission on 13 March 2014 to refuse the application made by GSN Holdings Pty Ltd for a contractor’s licence under Part 3, Division 2 of the Queensland Building and Construction Commission Act 1991 (Qld) is confirmed. 3. The application OCR082-14 is dismissed. |
| CATCHWORDS: | OCCUPATIONAL REGULATION MATTER – where applicant refused a contractor’s licence – whether false and misleading information provided – whether a particular person is fit and proper to exercise control or influence over a company that holds a licence – where application to review decision filed – where QBCC applied to strike out application to review – where substantive application proceeded in the absence of the applicant Queensland Building and Construction Commission Act 1991 (Qld), s 31, s 86 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | No appearance |
| RESPONDENT: | Queensland Building and Construction Commisison represented by Ms Cheriden Farthing, Lawyer (in-house) |
REASONS FOR DECISION
On 13 March 2014 the Queensland Building and Construction Commission (QBCC) made a decision under Part 3, Division 2 of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) to refuse an application made by GSN Holdings Pty Ltd for a contractor’s licence (the QBCC application).
GSN Holdings filed an application to review the decision made by the QBCC. The application to review was listed for hearing in Brisbane on 27 August 2014 and notices of hearing were issued by the Tribunal to the parties.
On 27 August 2014, the day of the hearing, there was no appearance for GSN Holdings. The QBCC through its in-house legal representative was ready to proceed at the hearing on 27 August 2014.
The QBCC has prepared and filed material[1] in the Tribunal relevant to the application to review. GSN Holdings has not filed any material in the Tribunal.
[1]Material filed by the QBCC in accordance with directions made on 17 April 2014 and s 21 of the QCAT Act.
The Tribunal may, as provided under s 93 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), proceed to hear and determine a matter in the absence of one of the parties to the proceedings such as the applicant GSN Holdings. The Tribunal must in conducting a proceeding, as required under s 28 of the QCAT Act, ensure that, amongst others, it observe the rules of natural justice and acts with as ‘little formality and technicality and with as much speed as the requirements’ of the Act, an enabling Act and a proper consideration of the matters before it permit.
The Tribunal is satisfied that GSN Holdings has been given notice of the hearing scheduled to take place in Brisbane on 27 August 2014 and that a copy of the directions made for the filing and exchange of material in relation to the application to review, has also been given to GSN Holdings.
The Tribunal having been satisfied for the purposes of s 93 and s 28 of the QCAT Act that GSN Holdings had been given notification of the hearing and an opportunity to file any material relevant to the application to review proceeded to determine the application.
Application to dismiss under s 48 of the QCAT Act
At the commencement of the hearing, the QBCC made an application under s 48 of the QCAT Act seeking an order that the application to review be dismissed by the Tribunal. The QBCC contends that it (the QBCC) has been ‘unnecessarily disadvantaged’ by GSN Holdings by its failure to prepare and file material in non-compliance with the directions made by the Tribunal, to attend and participate in a compulsory conference previously scheduled before the Tribunal on 16 July 2014; and to attend the hearing.
I am not satisfied the QBCC has been unnecessarily disadvantaged by GSN Holdings, as contended. It is unfortunate that GSN Holdings did not participate in the compulsory conference process on 16 July 2014. There is no evidence before me, however, that GSN Holdings has deliberately taken steps to disadvantage the QBCC by not participating in the conference or that there has been a delay in the proceedings as a result of the failure to participate in the conference. Directions were made by the Tribunal following the compulsory conference on 16 July 2014 that included the listing of the application to review for a hearing.
I am not satisfied the QBCC has been unnecessarily disadvantaged by the failure of GSN Holdings to prepare and file material in the Tribunal. The Tribunal in exercising its review jurisdiction under s 20 of the QCAT Act must arrive at the correct and preferable decision by way of a fresh hearing on the merits based on the material before the decision maker and any new material filed in the proceedings. The QBCC as the decision maker has prepared and filed material as required by directions made by the Tribunal and pursuant to s 21 of the QCAT Act to ‘help the tribunal so it can make its decision on the review’. There is no disadvantage to QBCC in the event that GSN Holdings as the applicant elects to not file and exchange any new or fresh material. The Tribunal will proceed to determine the application to review in arriving at the correct and preferable decision based on all of the material before it including the s 21 material.[2]
[2]Material filed by the QBCC under s 21 of the QCAT Act.
The Tribunal is not satisfied the QBCC has been unnecessarily disadvantaged by the failure of GSN Holdings to appear at the hearing. The Tribunal in exercising its review function must consider all relevant material including the s 21 material.[3] The Tribunal has also given the QBCC as the decision maker an opportunity to make submissions at the hearing in relation to the application to review.
[3]The s 21 material includes written submissions prepared by GSN Holdings dated 287 February 2014 previously given to the QBCC in relation to the QBCC application.
The application made by the QBCC under s 48 of the QCAT Act that the application OCR082-14 be dismissed is refused.
What is the correct and preferable decision – the substantive application?
GSN Holdings is in the business of air-conditioning and mechanical services including limited design. GSN Holdings is entitled to a contractor’s licence under s 31 of the QBCC Act if the QBCC is satisfied, on applying, that ‘the directors, secretary and influential persons for the company are fit and proper persons to exercise control or influence over a company that holds a contractor’s licence’.
In deciding whether a ‘particular person’ is a ‘fit and proper person’ to ‘exercise control or influence over a company that holds a contractor’s licence’ the QBCC may have regard to certain matters set out under s 31(3) including, amongst others, ‘commercial and other dealings in which that person has been involved and the standard of honesty and integrity demonstrated in those dealings’.
In the QBCC application submitted on or about 18 December 2013, the sole director of GSN Holdings, Gary Martin North, answered ‘No’ to certain questions on the application form. The questions related to - whether ‘any directors’ or ‘persons of influence’ have ever become bankrupt or entered into a debt agreement under the Bankruptcy Act 1966 (Qld); and whether ‘any directors’ or persons of influence have ever been a director within 12 months of a company being placed in receivership, administration, in liquidation or wound up for the benefit of creditors.
The QBCC application also contained a signed declaration by Gary Martin North in which he (Gary Martin North) declared ‘that the statements contained in this application are true and correct’, the effect of which is to declare that the statements including the answers to questions contained in the form are ‘true and correct’.
The QBCC contends that the information and declaration provided by Gary Martin North as the sole director of GSN Holdings in the application was false and misleading and in respect of the declaration, Gary Martin North has made a false declaration; and in so doing, he has not acted honestly.
The QBCC also contends that on the basis of the information provided by Gary Martin North and in making a false declaration, Gary Martin North as the sole director (of GSN Holdings) is not a fit and proper person to exercise or influence a company that holds a QBCC licence; and that GSN Holdings is therefore not entitled to a QBCC licence.[4]
[4]Statement of Reasons, s 21 material, p 43. See s 31(3) of the QBCC Act.
The QBCC also raises a further basis upon which the QBCC application made by GSN Holdings was refused and that is by reason of Gary Martin North having been made a permanent excluded individual on 4 April 2012 in accordance with s 59 and s 60 of the QBCC Act; and is therefore not a fit and proper person for the purposes of s 31(2)(a) to exercise control or influence over GSN Holdings as the applicant seeking to hold a contractor’s licence.
Did GSN Holdings provide information to the QBCC, with respect to Gary Martin North as sole director (of GSN Holdings), that was not ‘true and correct’?
The questions contained in the QBCC application form completed and submitted by GSN Holdings are clear and unambiguous. The box identified as ‘No’ has been ticked in the application form in relation to the following questions:
Have any directors, office holders, major shareholders, nominees, persons of influence or any intended business partner:
i). ever become bankrupt or entered into a debt agreement under Part IX of the Bankruptcy Act 1966?
ii). Ever entered into a composition, deed of arrangement or deed or assignment under Part X of the Bankruptcy Act 1966?
The QBCC application form contains a declaration titled ‘Director’s Declaration’ that is also clear and unambiguous. The director of GSN Holdings has signed the declaration declaring that ‘the statements contained in [the] application are true and correct...’.
The application completed and submitted by GSN Holdings contained information in support of the application including a current extract from the Australian Securities & Investment Commission (ASIC) that shows the company GSN Holdings is registered and identifies Gary Martin North as its sole director and secretary.
There is evidence before the Tribunal contained in the s 21 material that on 18 February 2000 Gary Martin North entered into bankruptcy under the Bankruptcy Act 1966.[5]
[5]National Personal Insolvency Index search, s 21 material, p 55.
There is also evidence before the Tribunal that Gary Martin North was a director, secretary or influential person at the time of, or within 12 months of, liquidators being appointed for various companies including: Craigstar Pty Ltd (liquidator appointed on 29 September 2011); Co-Ordinated Thermal Systems Pty Ltd (liquidator appointed on 8 November 2011); Chipfield Pty Ltd (liquidator appointed on 8 November 2011); Humidifresh Industries Pty Ltd (liquidator appointed on 18 October 2011); and Humidifresh Industries (North QLD) Pty Ltd (liquidators appointed on 16 November 2012).[6]
[6]Statement of Reasons, s 21 material, p 36. See documents marked ‘BOD-7’, ‘BOD-20’ to ‘BOD-31’, s 21 material.
The Tribunal is satisfied for the purposes of s 31(2)(a) and s 31(3)(a) of the QBCC Act that there is evidence before it that Gary Martin North was a director of various companies within 12 months of liquidators being appointed; and that the information from the ASIC discloses that the liquidations in relation to the various companies were all creditors voluntarily winding up liquidations.
It is open to the Tribunal based on the evidence before it to draw the reasonable inference that GSN Holdings would have had knowledge of the ASIC and the bankruptcy information relating to Gary Martin North (as sole director) at the time of completing and submitting the QBCC application. Furthermore, Gary Martin North as sole director of GSN Holdings has declared on the QBCC application as to the truthfulness of the ‘statements’. It is open to the Tribunal to draw the inference that Gary Martin North would have knowledge of information relating to him personally at the time of making the declaration.
The Tribunal is satisfied, for the purposes of s 31(3) of the QBCC Act that Gary Martin North as sole director of GSN Holdings has falsely declared that information provided by him in the QBCC application was true and correct. The Tribunal is also satisfied that Gary Martin North, having provided information that was false, has not acted with honesty and integrity and is therefore not a fit and proper person to exercise control or influence over a company seeking to hold a contractor’s licence under s 31(2) of the QBCC Act.
In determining whether Gary Martin North as sole director of GSN Holdings is a fit and proper person for the purposes of Part 3, Division 2 of the QBCC Act, the Tribunal has also considered that there is evidence before it that Gary Martin North became a permanently excluded individual having received notice of the decision made by the QBCC (formerly known as the Queensland Building Services Authority) by letter dated 4 April 2012.[7]
[7]Document marked ‘BOD-14’, s 21 material, p 82.
The Tribunal determines that the correct and preferable decision is that the decision made by the QBCC on 13 March 2014 to refuse the application made by GSN Holdings Pty Ltd for a contractor’s licence under Part 3, Division 2 of the Queensland Building and Construction Commission Act 1991 (Qld) is confirmed. The application OCR082-14 is dismissed.
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