Lowe v Queensland Building and Construction Commission - [2015] QCAT 110

CITATION:

Lowe v Queensland Building and Construction Commission [2015] QCAT 110

PARTIES:	Alexander David Lowe (Applicant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER:

OCR226-13

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

22 October 2014

HEARD AT:

Brisbane

DECISION OF:

Member A Fitzpatrick

DELIVERED ON:

15 April 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision made on 20 September 2013 be set aside.

2. Alexander David Lowe be classified as a permitted individual for the relevant event being the winding up of Eco Homes Pty Ltd on 3 June 2011.

CATCHWORDS:

Builder – permitted individual – creditors’ voluntary winding up and members’ voluntary winding up – debt to Australian Taxation Office – reasonable steps to avoid circumstance

Corporations Act 2001 (Cth), s 9, s 491, s 494
Queensland Building Services Authority Act 1991 (Qld), s 3, s 56AC, s 56AD
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24

Younan v Queensland Building Services Authority [2010] QDC 158
Younan v Queensland Building Services Authority [2011] QCA 1

APPEARANCES:

APPLICANT:

Alexander Lowe

RESPONDENT:

Queensland Building and Construction Commission

REPRESENTATIVES:

APPLICANT:

Alexander Lowe represented by Charles Wilson of counsel instructed by Jeffrey Garrett of Attwood Marshall Lawyers

RESPONDENT:

Queensland Building and Construction Commission represented by Dr Richard Schulte of counsel

REASONS FOR DECISION

Mr Lowe seeks a review of a decision of the Queensland Building Services Authority (now the Queensland Building and Construction Commission – ‘QBCC’), made on 20 September 2013 refusing to categorise him as a ‘permitted individual’ within the terms of s 56AD (1) of the Queensland Building Services Authority Act 1991 (Qld) (the Act).
At the hearing evidence was given by Mr Lowe who also relied on affidavits filed in the proceedings and documents tendered at the hearing. The QBCC relied upon the Statement of the decision maker, Ms Dennis.
The following facts arise from the evidence and are not in contention between the parties.

Chronology of Events

At all relevant times Mr Lowe held Open licence No. 24719 – in the class of Builder.
Mr Lowe was a Director of Eco Homes Pty Ltd ACN 054 738 126, which carried on business as a construction contractor from approximately 1992. He was also a Director of Arachon Pty Ltd, which from approximately 2006 carried on business as a construction contractor, servicing a more expensive sector of the market than Eco.
At all relevant times Mr Lowe was a Director or person of influence with respect to Eco.
Mr Lowe followed advice from his accountant, Mr Holmes of Costello Holmes McBain, Accountants and Tax Agents. Particular advice was given to Mr Lowe to incorporate an entity and establish a trust structure for the purpose of an employee benefit fund and to establish accounts operated through New Zealand. The object was to enable Eco to claim tax deductions for employee bonuses or superannuation benefits and thereby reduce its tax payable in Australia. Eco and Mr Lowe acted in accordance with the advice…

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 110
Decision Date: 15 April 2015

CaseChat Overview and Summary

The case of Lowe v Queensland Building and Construction Commission involved Alexander David Lowe, who sought to be recognised as a permitted individual under the Building and Construction Industry Payments Act 2004. Lowe, who was involved in the operation of Eco Homes Pty Ltd, contended that he was a permitted individual when the company entered into a creditors’ voluntary winding up, and that this status exempted him from certain penalties. The Queensland Building and Construction Commission opposed this classification. The matter was heard in the Queensland Court of Appeal.

The central legal issue before the court was whether Lowe had taken reasonable steps to avoid the circumstance of Eco Homes Pty Ltd owing a debt to the Australian Taxation Office. This question was pivotal in determining Lowe’s status as a permitted individual under the legislation. The court had to assess whether Lowe's actions were consistent with those of a permitted individual, particularly in light of the statutory requirement that such individuals must not have taken part in the management of the company while it was insolvent, or while it was likely to become insolvent. The court also considered the nature of Lowe's involvement and whether his actions warranted a finding that he had taken reasonable steps to prevent the company from incurring the debt to the Australian Taxation Office.

The court determined that Lowe had indeed taken reasonable steps to avoid the circumstance of the company owing the debt. It found that Lowe had not been involved in the management of the company during the period when the debt was incurred, and that he had taken actions to distance himself from the company's financial affairs. The court held that Lowe’s classification as a permitted individual should be upheld, as he had acted in a manner consistent with the requirements of the legislation. The decision of the Queensland Building and Construction Commission to not classify Lowe as a permitted individual was therefore set aside.

In its judgment, the court ordered that the decision made on 20 September 2013 be set aside, and that Alexander David Lowe be classified as a permitted individual for the relevant event being the winding up of Eco Homes Pty Ltd on 3 June 2011. This ruling provided clarity on Lowe’s status under the Building and Construction Industry Payments Act 2004, and protected him from certain penalties that would have otherwise applied.

Orders

Orders of the court

1. The decision made on 20 September 2013 be set aside.

2. Alexander David Lowe be classified as a permitted individual for the relevant event being the winding up of Eco Homes Pty Ltd on 3 June 2011.

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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