Jensen v Queensland Building Services Authority - [2013] QCAT 121

CITATION:

Jensen v Queensland Building Services Authority [2013] QCAT 121

PARTIES:	Jan Boss Jensen (Applicant)
v
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER:

OCR161-11

MATTER TYPE:

General administrative review matters

HEARING DATE:

28 February 2013

HEARD AT:

Brisbane

DECISION OF:

Bevan Hughes, Member

DELIVERED ON:

25 March 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the Queensland Building Services Authority dated 16 June 2011 to refuse to categorise Jan Boss Jensen as a permitted individual is set aside; and

2. Jan Boss Jensen is categorised as a permitted individual pursuant to section 56AD of the Queensland Building Services Authority Act 1991

CATCHWORDS:

GENERAL ADMINISTRATIVE REVIEW – PERMITTED INDIVIDUAL – relevant event – circumstances – insolvency – harassment and proposal to cancel licence – insulation scheme – non-payment by debtors – reasonable steps – previous proposal to cancel licence

Queensland Building Services Authority Act 1991
Queensland Civil and Administrative Tribunal Act 2009
Benz v Queensland Building Services Authority [2010] QCAT 625, applied
FAI Insurances Ltd v Winneke (1981) 151 CLR 342, cited
Papallo v Queensland Building Services Authority [2012] QCAT 59, applied
Vadasz v Queensland Building Services Authority [2013] QCAT 84, applied
Younan v Queensland Building Services Authority [2010] QDC 158, applied
Younan v Queensland Building Services Authority [2011] QCA 1, applied

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Jan Jensen represented by Dr Andrew Greinke of Counsel, instructed by Morgan Conley Solicitors

RESPONDENT:

Queensland Building Services Authority represented by Robinson Locke Litigation Lawyers

REASONS FOR DECISION

What is this Application about?

On 22 June 2011, Mr Jensen applied to the Tribunal to review the Authority’s decision not to categorise him as a permitted individual.
Mr Jensen is a licensed builder and a director of his own company, JAD Building and Constructions Pty Ltd.
On 4 May 2010, Mr Jensen appointed a liquidator to his company.
On 20 May 2010, the Queensland Building Services Authority proposed to cancel his licence. This is because Mr Jensen was a director of the company when the liquidator was appointed. He is therefore an ‘excluded individual’.[1] This cancels his licence unless the Authority decides to categorise him as a ‘permitted individual’.[2]
[1] Section 56AC of the Queensland Building Services Authority Act 1991.
[2] Section 56AD of the Queensland Building Services Authority Act 1991.
On 5 May 2011, Mr Jensen applied to the Authority to be categorised as a permitted individual.
On 16 June 2011, the Authority decided not to categorise Mr Jensen as a permitted individual. This means that Mr Jensen cannot perform work as a licensed builder for five years.

What does the Tribunal do?

In a review application, the Tribunal’s purpose is to produce the correct and preferable decision by way of a fresh hearing on the merits.[3]
[3] Section 20 of the Queensland Civil and Administrative Tribunal Act 2009.
The Tribunal must therefore decide whether Mr Jensen should be categorised as a permitted individual.

What does the Tribunal consider?

The Tribunal must consider whether Mr…

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: [2013] QCAT 121
Decision Date

CaseChat Overview and Summary

Jan Boss Jensen, a licensed builder, sought to have the Queensland Building Services Authority (QBSA) reverse its decision to not categorise him as a permitted individual, a designation that would allow him to continue operating as a licensed builder. The QBSA's refusal to categorise Mr Jensen as a permitted individual was predicated on his company's liquidation on 4 May 2010, which occurred after the QBSA proposed to cancel his licence on 9 March 2010. The Tribunal was required to determine whether Mr Jensen took all reasonable steps to avoid the circumstances that led to the relevant event, which would allow the Tribunal to exercise its discretion to classify him as a permitted individual. The Tribunal found that the relevant event was the appointment of a liquidator to Mr Jensen's company. The circumstances that resulted in the relevant event were the proposal by the QBSA to cancel his licence, the failure of the federal government's insulation scheme, and two debtors refusing to pay the company. Mr Jensen took all reasonable steps to avoid the coming into existence of these circumstances. The Tribunal found that the QBSA's decision to refuse to categorise Mr Jensen as a permitted individual was set aside, and that he is categorised as a permitted individual.

Orders