Lam v Queensland Building and Construction Commission - [2014] QCAT 512

CITATION:

Lam v Queensland Building and Construction Commission [2014] QCAT 512

PARTIES:	John Cristopher Lam (Applicant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER:

OCR012-14

MATTER TYPE:

Building matter

HEARING DATE:

15 September 2014

HEARD AT:

Brisbane

DECISION OF:

Member Gardiner

DELIVERED ON:

14 October 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the Authority dated 19 November 2013 refusing to categorise Mr Lam a permitted individual is set aside.

2. John Christopher Lam be categorised as a permitted individual.

CATCHWORDS:

PERMITTED INDIVIDUAL – Where the applicant was a director of a building company – Where a vehicle had been garaged and not used – Where an unforseen potential FBT debt arose – Where company had not made provision for unforseen potential debt – Where no assessment for FBT ever issued – Whether all reasonable steps taken

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

Younan v QBSA [2010] QDC 158 followed
QBCC v Jensen [2014] QCATA 028 referred
QBCC v Vadasz [2014] QCATA 001 referred
Armstrong v QBSA [2010] QCAT 486 referred

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr J Crowther, Solicitor represented Mr Lam

RESPONDENT:

Ms K Joyce, Solicitor represented the Commission

REASONS FOR DECISION

On 19 November 2013, the Queensland Building Services Authority (as it was then) refused an application by Mr John Christopher Lam to be categorised as a permitted individual under s 56AD(1) of the then Queensland Building Services Authority Act 1991.
Mr Lam is a licenced builder, holding a Queensland open licence and a low rise carpentry and joinery licence. Mr Lam was also a director of Outlook Projects Pty Limited.
On 2 November 2012, liquidators were appointed for Outlook Projects Pty Limited.
Under the current Queensland licensing system for builders, if a builder is a director or influential person in a company that has become insolvent, the builder is an excluded individual and the building licence is cancelled for 5 years[1].
[1]Queensland Building and Construction Commission Act 1991 s 56AC.
However an excluded builder can apply to be a permitted individual allowing him to retain his building licence if the builder can satisfy the that he took all reasonable steps to avoid the coming into existence of the circumstances that resulted in the happening of the relevant event, here the liquidation of Outlook Projects Pty Limited [2].
[2]Ibid s 56AD.
The Queensland Building and Construction Commission Act 1991 (the Commission Act) also sets out the matters the Commission (and therefore this Tribunal) must have regard to when examining any action by the excluded builder to show that he took all reasonable steps to avoid the coming into existence of the circumstances that resulted in the happening of the relevant event in this matter[3]. The Commission is also able to have regard to other matters when deciding if a builder took all reasonable steps[4].
[3]Ibid s 56AD(8A).
[4]Ibid s 56AD(8B).
The leading decision of Judge McGill in Younan v QBSA[5] identifies a four step process when…

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 512
Decision Date: 14 October 2014

CaseChat Overview and Summary

The case of Lam v Queensland Building and Construction Commission involved the applicant, John Christopher Lam, a director of a building company, contesting the decision of the Authority to not categorise him as a permitted individual. The crux of the dispute was whether Lam had taken all reasonable steps to prevent the company from engaging in illegal work, particularly in light of an unforeseen potential debt for fringe benefits tax (FBT) that arose from a garaged vehicle that had not been used. The Authority had found that since the company had not made provision for this potential FBT debt and no assessment for FBT was ever issued, Lam had not taken all reasonable steps to prevent the company from engaging in illegal work.

The central legal issue before the court was whether Lam had taken all reasonable steps to prevent the company from engaging in illegal work. This required an examination of the circumstances surrounding the unforeseen potential FBT debt and whether Lam's failure to make provision for this debt meant he had not taken all reasonable steps to prevent illegal work. The court also needed to consider whether the absence of an FBT assessment affected the conclusion that Lam had not taken all reasonable steps.

The court found that the Authority's decision was flawed in its assessment of the steps Lam had taken. The court held that the potential FBT debt was unforeseen and therefore not something that could reasonably have been provided for by Lam. Furthermore, the absence of an FBT assessment did not necessarily indicate that Lam had not taken all reasonable steps. The court was satisfied that Lam had acted reasonably in the circumstances, and thus the decision of the Authority was set aside. Consequently, Lam was categorised as a permitted individual.

Orders

Orders of the court

1. The decision of the Authority dated 19 November 2013 refusing to categorise Mr Lam a permitted individual is set aside.

2. John Christopher Lam be categorised as a permitted individual.

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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