Halstead v Queensland Building & Construction Commission - [2015] QCAT 324

CITATION:

Halstead v Queensland Building & Construction Commission [2015] QCAT 324

PARTIES:	Richard Alfred Halstead (Applicant)
v
Queensland Building & Construction Commission (Respondent)

APPLICATION NUMBER:

OCR049-13 and OCR031-14

MATTER TYPE:	Building matters
HEARING DATE:	22 and 23 April 2015

HEARD AT:

Brisbane

DECISION OF:

Member King-Scott

DELIVERED ON:

18 August 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Order that pursuant to s 56AD(8) of the Queensland Building Construction Commission Act 1991 the Applicant be categorised as a permitted individual for the relevant event being the appointment of liquidators on 7 December 2012 to Clipstar (Melb) Pty Ltd.

2. Order that pursuant to s 56AD(8) of the Queensland Building Construction Commission Act 1991 the Applicant be categorised as a permitted individual in relation to the relevant bankruptcy event his having signed on 2 October 2013 an authority pursuant to s. 188 of the Bankruptcy Act 1966.

CATCHWORDS:

Application to be categorised as a permitted individual - two events, relevant company and bankruptcy events – affect of amendment to s.56AC (5) Queensland Building and Construction Commission Act 1991 treating the both events as arising from the one set of circumstance - whether amendment retrospective - cause of events failure to set aside statutory demand by negligent solicitor and intervention of company’s bank freezing all accounts

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr B J Saal (Solicitor) of Saal and Associates Lawyers

RESPONDENT:

Mr M Robinson (Solicitor) of Robinson Locke Litigation Law

REASONS FOR DECISION

Mr Richard Halstead was notified on 20 December 2012 by the Queensland Building Services Authority (“QBSA”) as it was then known, that he had been categorised as a excluded individual following the appointment of liquidators to Clipstar (Melb) Pty Ltd on 17 January 2013. He applied to the QBSA on 17 January 2013 pursuant to s.56AD (1) of the Queensland Building Services Authority Act 1991 (Qld) to be categorised as a permitted individual. The Authority refused that application on 24 January 2013. Mr Halstead has applied, in Matter OCR049-13, to review that decision.
On 2 October 2013, Mr Halstead entered into a Part X agreement under the Bankruptcy Act 1966. He was notified by the QBSA on 19 November 2013 that he was considered an excluded individual pursuant to s.56AC of the QBSA Act. On 23 December 2013, Mr Halstead applied to be categorised as a permitted individual. The Commission refused that application on 21 February 2014. Mr Halstead then sought review of that decision in application OCR031-14.
An earlier decision had been made by the Tribunal on 9 December 2014 in relation to the insolvencies of Clipstar Pty Ltd and Fortress Knight Pty Ltd and the Commission’s decision not to categorise Mr Halstead as a permitted individual in respect of those insolvencies was set aside as the insolvency arose from the one set of circumstances.
The power to review decisions was conferred upon the Tribunal by s.87 of the Queensland Building and Construction Commission Act 1991 (Qld). In particular, s.86(1)(j) specifically provides that a decision not…

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: [2015] QCAT 324
Decision Date: 18 August 2015

CaseChat Overview and Summary

In the matter of Halstead v Queensland Building & Construction Commission, the court addressed an application by the applicant to be categorised as a permitted individual under section 56AD(8) of the Queensland Building and Construction Commission Act 1991. The applicant contended that two events, namely the appointment of liquidators to a relevant company and a personal bankruptcy, should be considered as arising from the same set of circumstances, and thus should not disqualify him from being a permitted individual. The Queensland Building & Construction Commission opposed the application, arguing that the events were distinct and the statutory amendments did not apply retrospectively.

The central legal issue before the court was whether the amendment to section 56AC(5) of the Act, which treated certain events as arising from the same set of circumstances, applied retrospectively. Additionally, the court had to determine if the applicant's failure to set aside a statutory demand due to the negligence of his solicitor, and the subsequent freezing of his accounts by the company’s bank, constituted a single set of circumstances warranting the categorisation as a permitted individual. The court examined the legislative history and the intent behind the amendments to ascertain whether they were intended to have retrospective effect.

The court held that the amendment to section 56AC(5) did not apply retrospectively and thus the events in question were not to be treated as arising from the same set of circumstances. However, the court found that the applicant’s failure to set aside the statutory demand and the subsequent intervention by the bank were part of a continuous chain of events that could be considered as a single set of circumstances. Consequently, the applicant met the criteria to be categorised as a permitted individual in relation to the relevant event of the company's liquidation. The court also found that the applicant was eligible to be categorised as a permitted individual in relation to his personal bankruptcy, as the signing of the authority under the Bankruptcy Act 1966 did not disqualify him.

The court made orders that the applicant be categorised as a permitted individual in relation to the relevant event of the company's liquidation and the personal bankruptcy. These orders were made pursuant to section 56AD(8) of the Queensland Building Construction Commission Act 1991.

Orders

Orders of the court

1. Order that pursuant to s 56AD(8) of the Queensland Building Construction Commission Act 1991 the Applicant be categorised as a permitted individual for the relevant event being the appointment of liquidators on 7 December 2012 to Clipstar (Melb) Pty Ltd.

2. Order that pursuant to s 56AD(8) of the Queensland Building Construction Commission Act 1991 the Applicant be categorised as a permitted individual in relation to the relevant bankruptcy event his having signed on 2 October 2013 an authority pursuant to s. 188 of the Bankruptcy Act 1966.

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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