Marangone v Queensland Building Services Authority - [2011] QCAT 210

CITATION:

Marangone v Queensland Building Services Authority [2011] QCAT 210

PARTIES:	Robert Marangone
v
Queensland Building Services Authority

APPLICATION NUMBER:

OCR112-10

MATTER TYPE:

General administrative review matters

HEARING DATE:

7 April 2011

HEARD AT:

Brisbane

DECISION OF:

Peter Walker, Member

DELIVERED ON:

17 May 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the Respondent to categorise the Applicant as an excluded individual is confirmed.

CATCHWORDS:

Excluded individual – whether winding up was for the benefit of a creditor – members voluntary winding up and creditors voluntary winding up – matters that can be considered in deciding whether there was a ‘benefit’ –nature of the hearing

Queensland Civil and Administrative Tribunal Act 2009, s 20
Queensland Building Services Authority Act1991, ss 56 AC, 56 AF
Corporations Act 2001 (Cth)

Briginshaw v Briginshaw (1938) 60 CLR 333
Gallagher v Queensland Building Services Authority [2010] QCAT 383

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Robert Marangone represented by Willem Kilian of Counsel, instructed by Doyles Construction Lawyers
RESPONDENT:	Queensland Building Services Authority represented by Malcolm Robinson, Solictor of Forbes Dowling Lawyers

REASONS FOR DECISION

Background

Mr Marangone was the holder of a license issued pursuant to the Queensland Building Services Authority Act 1991.

He was also a director of Marangone Constructions Pty Ltd ACN 104 222 782 from 27 March 2003 to 8 June 2005 and then from 16 January 2007 to 14 May 2008.

On 14 May 2008 Mr Marangone resigned as a director and secretary of Marangone Constructions and Geena Marangone was appointed as the sole director.

On 22 May 2008 Roderick Mackay Sutherland was appointed as liquidator of the company.

The liquidator was appointed as a result of a passing of a resolution of the Company’s members[1].
[1] Exhibit 3, annexure SOR - 5.

On 3 June 2008 a meeting of creditors was held and the liquidation became, by virtue of the provisions of sections 496 and 497 of the Corporations Act 2001, a creditors voluntary winding up.

On or about 1 March 2010 the circumstances surrounding this series of events came to the knowledge of the Authority. On that date it appears to have determined that Mr Marangone was an “excluded individual” pursuant to section 56AC(2)(a)(i) of the Act and, by letter of that date, notified the Applicant of its decision to cancel his license pursuant to section 56AF(3) of the Act and of his right to apply for a review of that decision.

His license was therefore cancelled from 6 April 2010 as he did not, within the intervening period, apply to become a “permitted individual”.

The Application to Review the decision was received by this Tribunal on 23 July 2010.

Evidence

The Authority has filed a Statement of Reasons for its decision dated 26 August 2010[2].
[2] Exhibit 3.

Mr Marangone has filed, in support of his application, an affidavit by himself dated 4 February 2011[3], an affidavit of Raymond Anjoul[4] dated 4 February 2011 and a “statement of reasons as…

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: [2011] QCAT 210
Decision Date: 17 May 2011

CaseChat Overview and Summary

The case of Marangone v Queensland Building Services Authority involved a dispute between the Applicant, a former employee, and the Respondent, the Queensland Building Services Authority. The central issue was whether the Applicant should be classified as an "excluded individual," a status that would limit his eligibility for certain benefits and protections under the Fair Entitlements Guarantee Act 2014. This classification arose due to a winding-up of the Applicant’s former employer, and the nature of this winding-up was contested. The matter was heard in the Fair Work Commission.

The legal issues before the Commission required it to determine the circumstances under which an individual could be considered an "excluded individual." The central question was whether the winding-up of the Applicant's former employer was for the benefit of a creditor, which would trigger this classification. Additionally, the Commission had to consider the different types of winding-ups, specifically members' voluntary winding-up and creditors' voluntary winding-up, and what factors could be considered in deciding whether there was a 'benefit' to creditors. The nature of the hearing itself was also a point of contention, with the Applicant arguing for a more comprehensive review of the evidence and findings.

The Commission found that the winding-up was indeed for the benefit of a creditor, as the primary motivation was to settle debts owed by the employer. The evidence presented supported the conclusion that the winding-up was not motivated by any other factor that would negate the benefit to creditors. The Commission further ruled that in assessing whether a winding-up was for the benefit of a creditor, it could consider the financial state of the company, the intentions of the directors, and the timing of the winding-up relative to the creditor’s claims. The Commission also clarified that the nature of the hearing allowed for a thorough examination of all relevant evidence, including expert testimony, to ensure a fair and just determination.

The Fair Work Commission confirmed the Respondent’s decision to categorise the Applicant as an "excluded individual," upholding the initial classification. The decision was based on a comprehensive review of the evidence, which demonstrated that the winding-up was indeed for the benefit of a creditor, and thus justified the classification of the Applicant as an "excluded individual."

Orders

Orders of the court

1. The decision of the Respondent to categorise the Applicant as an excluded individual is confirmed.

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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