Jasch v Queensland Building and Construction Commission - [2014] QCAT 98

CITATION:

Jasch v Queensland Building and Construction Commission [2014] QCAT 098

PARTIES:	Mr Gregory John Jasch (Applicant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER:

OCR022-11

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

26 November 2013

HEARD AT:

Brisbane

DECISION OF:

Member Allen

DELIVERED ON:

20 March 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Mr Gregory John Jasch is categorised as a permitted individual in respect of the bankruptcy event of 2 September 2010.

CATCHWORDS:

OCCUPATIONAL REGULATION – REVIEW – Permitted Individual – bankruptcy – directors guarantees – prior company event – reasonable steps required where individual also subject to being an excluded individual as result of the same circumstances

Queensland Building and Construction Commission Act 1991 ss 56AC, 56AD, 58, 59

Younan v Queensland Building Services Authority [2010] QDC 158
Smith v Queensland Building Services Authority [2012] QCAT 58

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr Gregory John Jasch was represented by Mr Frigo of Counsel instructed by Pott’s Lawyers.
RESPONDENT:	The Queensland Building and Construction Commission was represented by Mr Cole, in-house lawyer

REASONS FOR DECISION
Introduction

Mr Jasch was a successful builder in the Mackay region who operated through his family company Beckwith Constructions Pty Ltd. In 2009 the company got into financial difficulty and ultimately went into liquidation, administrators first having been appointed on 19 October 2009. Following the failure of the company several creditors pursued Mr Jasch under director’s guarantees to recover monies owed to them by the company. This lead to a sequestration order being made against Mr Jasch in the Federal Magistrates Court on 2 September 2010.
There are provisions in the legislation which regulate the construction industry to ensure that where an individual[1] or company[2] has been subject to an insolvency event that individual or in relation to the company event an individual who was a director, secretary or influential person of the company is excluded from holding a licence unless they can show they should be a permitted individual.[3] If an individual becomes an excluded individual as a result of a company event the company becomes an excluded company.[4]
[1]Queensland Building and Construction Commission Act 1991 s 56AC(1).
[2]Queensland Building and Construction Commission Act 1991 s 56AC(2).
[3]Queensland Building and Construction Commission Act 1991 s 56AD.
[4]Queensland Building and Construction Commission Act 1991 s 56AC(7).
Mr Jasch was advised by the Commission that he was considered to be an excluded individual as a result of Beckwith Constructions going into administration on 20 October 2009. He made an application to the Commission to be classified as a permitted individual on 24 November 2009 which was refused by the Commission on 26 November 2009. He then made an application to the Tribunal to review that decision. He subsequently withdrew his application to review on the basis that he be granted a site supervisors licence.
Mr Jasch remains an excluded individual in respect of the company event and was not eligible to hold a builders licence for a five…

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 98
Decision Date

CaseChat Overview and Summary

The case of Jasch v Queensland Building and Construction Commission involved Mr Gregory John Jasch, a builder, who sought a review of the Commission's decision to refuse his application to be categorised as a permitted individual in respect of his personal bankruptcy. The Commission had earlier refused his application to be categorised as a permitted individual in respect of the company event and he had withdrawn his application to review that decision.

The key legal issues were whether Mr Jasch had taken all reasonable steps to avoid the circumstances that resulted in the happening of the relevant event and whether the Tribunal should consider the same issues as those considered in respect of the company event. The Tribunal noted that the matters relating to the business carried on by Beckside Constructions had already been considered by the Commission and refused as grounds for him being a permitted individual in respect of the company event. The Tribunal considered the relevant matters under s 56AD(8A) of the Act which were seeking appropriate financial or legal advice, guarantees, and provision for income tax.

The Tribunal found that Mr Jasch had taken all reasonable steps to avoid the circumstances that led to his personal bankruptcy. The Tribunal ordered that Mr Jasch be categorised as a permitted individual in respect of the bankruptcy event of 2 September 2010.

The final orders made by the Tribunal were that Mr Gregory John Jasch is categorised as a permitted individual in respect of the bankruptcy event of 2 September 2010.

Orders