Macdonald v Queensland Building Services Commission - [2013] QCAT 702

CITATION:

Macdonald v Queensland Building Services Commission [2013] QCAT 702

PARTIES:	Jamie Christopher Rory Macdonald (Applicant)
v
Queensland Building Services Commission (Respondent)

APPLICATION NUMBER:

OCR317-12

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

23 September 2013

HEARD AT:

Brisbane

DECISION OF:

Member Howe

DELIVERED ON:

12 December 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the Commission of 10 September 2012 to categorise Mr MacDonald as an “excluded individual” pursuant to s 56AC(2) and s 56AC(4) of the QBSA Act is set aside.

CATCHWORDS:

Excluded individual – whether a shareholder an influential person – actual influence and control – lack of influence or control – potential to influence

Queensland Building and Construction Commission Act 1991 ss 56AC(1)(a), 56AC(2) and (4)
Queensland Building and Construction Commission Regulation 2003 s 5
McClintock v Queensland Building Services Authority [2011] QCATA 310
Nation v QBSA (2006) QCCTB 114

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Ms AC Freeman of Counsel, instructed by Gadens Lawyers

RESPONDENT:

Mr Formby of Counsel for Queensland Building and Construction Commission

REASONS FOR DECISION

Background

Mr and Mrs Macdonald operated a concreting business through Ozmac Concrete Constructions Pty Ltd (Ozmac Concrete). Mr Macdonald held and holds a QBSA concreting licence, as too did Ozmac Concrete until 2012. Mr Macdonald was the nominee for Ozmac Concrete’s licence.
Mr and Mrs Macdonald say they became estranged in late 2010.
On 1 April 2011 Mr Macdonald ceased to be a director of Ozmac Concrete, which changed its name to “ACN 131 999 285 Pty Ltd” on 17 June 2011.
Ozmac Concrete had liquidators appointed on 22 May 2012.
The Commission determined the appointment of liquidators constituted a relevant company event pursuant to s 56AC(1)(a) of the Queensland Building and Construction Commission Act 1991 (the “QBCC Act”, at the time of hearing Queensland Building Services Authority Act 1991).
At the time of liquidation Mr Macdonald retained a 50% shareholding in Ozmac Concrete. The Commission concluded Mr Macdonald was accordingly an influential person as provided for in s 56AC(2)(c) of the QBCC Act.
By a decision made on 10 September 2012 the Commission accordingly determined Mr Macdonald was an “excluded individual” pursuant to s 56AC(4) of the QBCC Act.
Mr Macdonald has applied to the Tribunal for a review of that decision.

Findings

I have had the benefit of hearing Mr and Mrs Macdonald give evidence. I conclude they are truthful witnesses.
I find as to the following facts and sequence of events.
Mr and Mrs Macdonald did become estranged in late 2010[1]. For a number of years prior to that they ran a concreting business in which Mrs Macdonald attended to the “paperwork” and Mr Macdonald did the actual concreting work. Mr Macdonald did not involve himself in the “paperwork”.
[1] Ex10 annexure SJM-3; Ex8 annexure SM1.
Consequent to their estrangement they decided to run separate businesses. Mrs Macdonald kept Ozmac Concrete and arranged small concreting jobs under $3,300, which was under the threshold value of “building work”[2] and therefore outside regulation by 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: [2013] QCAT 702
Decision Date

CaseChat Overview and Summary

In this matter, the applicant, Jamie Christopher Rory Macdonald, sought a review of the Queensland Building Services Commission's decision to classify him as an "excluded individual" under the Queensland Building and Construction Commission Act 1991 (QBCC Act). The Commission had made this determination based on Macdonald's 50% shareholding in Ozmac Concrete, a company that had been placed into liquidation. The legal issue at the heart of the case was whether Macdonald was an influential person within the meaning of the QBCC Act during the 12 months prior to the company's liquidation, which would make him ineligible for a building services licence.

The court considered the definition of an influential person, which includes a shareholder with a significant shareholding, as well as other relevant case law. The Commission argued that Macdonald's shareholding meant he was in a position to control or influence the company's affairs, regardless of whether he actually exercised such control. However, Macdonald contended that he had no influence over the company's operations and that his estranged wife, who was the director of the company, had sole control.

The court found that the evidence presented by both Macdonald and his estranged wife indicated that she was the dominant figure in both their personal and business relationship. This conclusion was supported by several factors, including her decision to liquidate the company over Macdonald's objections and her exclusive handling of the company's affairs. The court emphasised that the definition of an influential person requires not only the potential for control but also the actual capacity to exercise such control. Given the circumstances, the court determined that Macdonald did not have the ability to influence or control the company's affairs during the relevant period. Therefore, the decision to classify Macdonald as an excluded individual was set aside.

The final orders of the tribunal were to set aside the decision of the Commission of 10 September 2012 to categorise Mr Macdonald as an "excluded individual" pursuant to s 56AC(2) and s 56AC(4) of the QBCC Act.

Orders