Haack v Queensland Building and Construction Commission - [2014] QCAT 415

CITATION:

Haack v Queensland Building and Construction Commission [2014] QCAT 415

PARTIES:	Darren Anthony Haack (Applicant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER:

OCR304-13

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

8 August 2014

HEARD AT:

Brisbane

DECISION OF:

Member Howard

DELIVERED ON:

28 August 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the Queensland Building and Construction Commission dated 14 November 2013 that Darren Anthony Haack is an excluded individual is confirmed.

CATCHWORDS:

OCCUPATIONAL REGULATION – EXCLUDED INDIVIDUAL – INFLUENTIAL PERSON – where person is not a director, secretary or beneficial shareholder – where person was nominee builder – where person was employed as project manager – where person held 100% shareholding as trustee for discretionary family trust – whether person in a position to control or substantially influence the conduct of the company’s affairs

Queensland Building and Construction Commission Act 1991 (Qld), s 56AC
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24

Arthurs v Queensland Building and Construction Commission [2014] QCATA 155
McClintock v Queensland Building Services Authority [2011] QCATA 310

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Ms K Schwede, solicitor of Lawyers Qld Pty Ltd, represented Mr Haack.

RESPONDENT:

Mrs K Joyce, in-house solicitor, Queensland Building & Construction Commission appeared for the Queensland Building & Construction Commission.

REASONS FOR DECISION

Following the liquidation of CPR Solutions Pty Ltd on 8 November 2013, Queensland Building and Construction Commission (QBCC) advised Darren Anthony Haack that it considered him to be an excluded individual for a relevant company event (that is, the appointment of the liquidator for the benefit of creditors on 8 November, 2013). It made this determination on the basis that he was an influential person for CPR, as provided for in s 56AC of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act).
Mr Haack has applied for review of the decision that he is an excluded individual.
The purpose of the review is to produce the correct and preferable decision.[1] For the review, the Tribunal stands in the shoes of the decision-maker (that is, in this case, the QBCC) and makes the decision afresh.[2] The Tribunal’s decision is then taken to be a decision of the decision-maker.[3]
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) s 20.
[2]Ibid s 20.
[3]Ibid s 24(2).
It is uncontroversial that there was a relevant company event for the purposes of the s 56AC. The parties agree that the real issue for determination by the Tribunal is whether Mr Haack was an influential person at the time of the liquidation or within the previous one year period.[4] If he was, then he is an excluded individual.[5]
[4]QBCC Act s 56AC(2), esp s 56AC(2)(c)(ii).
[5]Ibid s 56AC(4).
An influential person is defined. It means an individual other than a director or secretary,
who is in a position to control or substantially influence the conduct of the company’s affairs, including, for example, a shareholder with a significant shareholding, a…

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: [2014] QCAT 415
Decision Date

CaseChat Overview and Summary

The case of Haack v Queensland Building and Construction Commission involves Darren Anthony Haack, who applied for a review of the decision by the Queensland Building and Construction Commission (QBCC) that he was an excluded individual. The QBCC had determined that Mr Haack was an influential person for CPR Solutions Pty Ltd, a relevant company event triggering the exclusion. The primary issue before the Tribunal was whether Mr Haack was an influential person at the time of the liquidation or within the previous one year period. An influential person, as defined by the Queensland Building and Construction Commission Act 1991, is someone other than a director or secretary who can control or substantially influence the conduct of the company’s affairs.

Mr Haack was the sole shareholder of CPR through the Haack Family Trust, where he acted as trustee. He was also employed by CPR as its project manager and nominee builder. His wife, Nichole Haack, was the sole director and secretary of CPR. The evidence showed that while Ms Haack managed the company’s day-to-day operations and administrative tasks, Mr Haack was responsible for obtaining work, quoting on projects, supervising the work done, and determining profitability. He also dealt with clients and creditors regularly.

The QBCC argued that Mr Haack’s 100% shareholding, his control over the company’s work, and his role as nominee builder made him an influential person. In contrast, Mr Haack contended that his position as project manager did not confer upon him the ability to control or substantially influence the company’s affairs. He also argued that his role as nominee builder only involved providing technical expertise.

The Tribunal found that Mr Haack’s significant involvement in obtaining, quoting, executing, and supervising the work, along with his acknowledged role in determining profitability, established that he was in a position to substantially influence the conduct of the company’s affairs. The Tribunal concluded that Mr Haack was indeed an influential person and confirmed the QBCC’s decision.

The final orders of the Tribunal were to confirm the decision of the QBCC that Darren Anthony Haack is an excluded individual.

Orders