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Laidlaw v Queensland Building Services Authority

Laidlaw v Queensland Building Services Authority

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Case Copied 26 February 2010 32 min read

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CITATION:Laidlaw v Queensland Building Services Authority [2010] QCAT 70

PARTIES: WILLIAM EDWARD LAIDLAW

v
QUEENSLAND BUILDING SERVICES AUTHORITY

APPLICATION NUMBER: QR217-07

MATTER TYPE: General administrative review matters

HEARING DATE: 22 January 2010

HEARD AT: Brisbane

DECISION OF: Michelle Howard, member

DELIVERED ON: 26 February 2010

DELIVERED AT: Brisbane

ORDERS MADE: The decision of the QBSA dated 14 November 2007 to refuse to categorise the applicant as a permitted individual be set aside.

The applicant be categorised as a permitted individual.

CATCHWORDS: permitted individual- Part 3A section 56AD-Queensland Building Services Authority Act 1991 - onus in review jurisdiction- consideration of extrinsic material a matter of law

APPEARANCES and REPRESENTATION (if any):

Mr G Thomson of Counsel on behalf of the applicant and Ms S Afzal, Legal Officer on behalf of the respondent.

REASONS FOR DECISION

History and Application

What follows is a cautionary tale highlighting potential pitfalls for those who may consider investing in business as a minority share or interest holder, while taking on the responsibilities of a director. Mr Laidlaw (“Laidlaw or the applicant”) was a director of an earth moving/plant hire company, Grace McFadyen Pty Ltd (“Grace McFadyen”) when liquidators were appointed for it on 27 March 2007.

Following, and as a result of, the appointment of a liquidator, the Queensland Building Services Authority (“QBSA or the Authority”) notified the applicant that it considered him to be an ‘excluded individual’ for a relevant company event within the meaning of section 56AC of the Queensland Building Services Authority Act 1991 (“the QBSA Act”). The appointment of a liquidator for the benefit of a creditor is a relevant company event under the section. An individual is an excluded individual if the person was when a relevant company event happened, a director or secretary of, or an influential person for, the company. A company is an excluded company if, among others, a director for the company is an excluded individual for a relevant event.

An excluded individual may apply to the QBSA to be categorised as a permitted individual for the relevant event under section 56AD of the QBSA Act. Under Part 3A Division 3, the QBSA must not grant a licence to an excluded individual or an excluded company and must cancel the licence of a person who is not successful on an application to be categorised as a permitted individual. There is very practical consequence for the applicant of being an excluded individual. The applicant is now a director of KISS Graphics Pty Ltd (“KISS Graphics”) which designs manufactures and installs signs. Kiss Graphics holds a licence from QBSA which enables it to install the signs.

The applicant made an application to the QBSA to be categorised as a permitted individual for the relevant company event, in this case, the appointment of a liquidator of Grace McFadyen. His application was refused in a decision of the QBSA. The applicant filed an application to review the decision of that QBSA in the Commercial and Consumer Tribunal (“CCT”).

The…

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: [2010] QCAT 70
Decision Date: 26 February 2010

CaseChat Overview and Summary

William Laidlaw applied to the Queensland Building Services Authority (QBSA) for a determination that he was a permitted individual under Part 3A of the Queensland Building Services Authority Act 1991 (QBSA Act). The QBSA refused his application. He sought review of the QBSA's decision by the Queensland Civil and Administrative Tribunal (QCAT). QCAT was required to conduct a fresh hearing on the merits. The evidence before the Tribunal established that Mr Laidlaw was a minority shareholder in Grace McFadyen Pty Ltd. When the company went into liquidation, he was deemed to be an excluded individual under the QBSA Act. He sought to be categorised as a permitted individual under section 56AD of the QBSA Act. The Tribunal found that Mr Laidlaw took all reasonable steps to avoid the circumstances which led to the company's liquidation. In particular, the Tribunal found that the decision to liquidate the company was made by the majority shareholders and Mr Laidlaw could not prevent it. The Tribunal set aside the decision of the QBSA and categorised Mr Laidlaw as a permitted individual.

Orders