McClintock v Queensland Building Services Authority
[2010] QCATA 68
•10 November 2010
| CITATION: | McClintock v Queensland Building Services Authority [2010] QCATA 68 |
| PARTIES: | Mr Peter Cyril McClintock (Appellant) |
| V | |
| Queensland Building Services Authority (Respondent) |
| APPLICATION NUMBER: | APL165-10 |
| MATTER TYPE: | Appeal |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Fleur Kingham, Deputy President Richard Oliver, Senior Member |
| DELIVERED ON: | 10 November 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: |
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| CATCHWORDS : | Application to extend time; where two matters arising out of the same factual circumstances are consolidated; consolidation not taken into account in the exercise of discretion. QCAT Act section 142 Hunter Valley Developments Pty Ltd 3 FCR 344 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | The applicant self represented assisted by Aherns, Chartered Accountants |
| RESPONDENT: | Forbes Dowling solicitors for the respondent. |
REASONS FOR DECISION
Judge Kingham, Deputy President
[1] Mr McClintock’s appeal is on the basis that the learned member’s discretion miscarried. That raises a question of law. Because that decision, in effect, finally disposed of Mr McClintock’s application to review the Building Services Authority’s decision to categorise him as an “excluded individual”, leave to appeal was not required[1].
[2] I have had the benefit of reading the reasons prepared by Mr Oliver in this matter. I agree with the order proposed and his reasons for making them.
Richard Oliver, Senior Member
[1] QCAT Act section 142
On 4 January 2010 Mr McClintock filed an application in QCAT seeking to review a decision of the Queensland Building Services Authority (“the Authority”) to categorise him as an “excluded individual” pursuant to section 56AC of the Queensland Building Services Authority Act (“QBSA Act”). The basis for the categorisation is that he was an influential person[2] in Crescent Couriers Pty Ltd (“the company”) when a relevant company event happened, that is the appointment of an Administrator to the company on 16 July 2008.
[2] QBSA Act section 56AC(2)(c)
Mr McClintock was advised of the Authority’s decision in a letter dated 16 July 2008. It is clear that his application for review is out of time as it was not filed in QCAT within 28 days.[3] To overcome this difficulty Mr McClintock filed an application to extend the time for bringing his review application.[4]
[3] QCAT Act section 33(3)
[4] QCAT Act section 61(1)(b)
The application to extend time was considered by QCAT, and a decision was made, on 14 July 2010, refusing to grant an extension of time. Mr McClintock now appeals from that decision.
The granting of an extension of time is discretionary. In exercising that discretion the usual principles apply and the learned member quite properly had regard to the accepted principles to be considered on such an application, these are:
a)whether there has been an reasonable explanation of the delay in filing the application for review
b)a consideration of whether the granting of the extension of time would be fair and reasonable in all the circumstances
c)whether there has been any prejudice suffered as a result of the delay; and
d)whether the substantive application has merit.[5]
[5] Re Hunter Valley Developments Pty Ltd 3 FCR 344
The above list is not exhaustive and it is also necessary to consider the particular circumstances that relate to the matter under consideration. Those matters include the fact that by reason of his categorisation as an excluded individual Mr McClintock applied to the Authority to be categorised as a permitted individual to maintain his licence. His application was refused by the Authority and he then sought a review of that decision.
In the review of the permitted individual application, the factual circumstances pertaining to the appointment of the administrator, being the relevant company event, are relevant insofar at the applicant needs to satisfy the tribunal, on review, that he took all reasonable steps to avoid the coming into existence of the circumstances that resulted in the happening of the relevant event.[6] Therefore it is immediately apparent that the determination of the permitted individual issue will necessarily involve a consideration of the same facts and circumstances pertaining to the excluded individual review.
[6] QBSA Act section 56AD(8)
Recognising the commonality of issues QCAT made a direction on 8 April 2010 that application GAR006-10 (“the excluded individual application”) be consolidated with application GAR127-09 (“the permitted individual application”) for the purposes of the hearing so that the evidence in one is evidence in the other.
A consideration of whether Mr McClintock did take all reasonable steps will require a determination of whether he was an “influential person” such that he had the ability to make decisions or recommendations about how the company conducted it’s affairs. Also, whether he exercised any influence over the decision to appoint the administrator. Another issue aligned with this is his status as a creditor of the company. These two matters are obviously relevant on the excluded individual application.
Firstly, Mr McClintock contends that the appointment of an administrator was not for the “benefit of a creditor” within the meaning of section 56AC(2). Secondly, Mr McClintock argues he was not an “influential person” for the purposes of section 56AC(2)(c)(i). The learned member did make summary findings as to both of these matters in determining whether the substantive application had merit. These finding were clearly open on the evidence put before the member, as the applicant was a substantial shareholder of the company and, in the books of the company, he was a creditor of the company. As the merits of the application is one of the matters to be taken into account in the exercise of discretion, the member found that as these criteria had been satisfied the application had little merit and was dismissed. She was also not satisfied that there had been a sufficient explanation of delay and that prejudice would be occasioned by delay due to the necessity of the excluded individual matter having to be heard before the permitted individual matter.
[10] On the delay point, it seems the fact that both applications had been consolidated was overlooked. The effect of this is that the hearing of the permitted individual application will not be delayed by the progress of the excluded application. Therefore there will be no delay to the prejudice of the respondent.
[11] In the submissions filed in this appeal by Mr McClintock the issues of whether he was a creditor or an influential person have been further addressed. It does seem arguable that, at a final hearing, both of these criteria may not be satisfied by the Authority. Mr McClintock was not a director of the company within 12 months of the appointment of the Administrator and therefore, prima facie, had no control over the company’s affairs, even though a director is answerable to shareholders. By reason of his substantial shareholding it was considered he was in a position to exercise control over the director of the company, it remains a question of fact as to whether he did actually exercise independent control of the company. Also of importance are the particular circumstances of the company and its relationship with its shareholders. Mr McClintock explores this relationship in his affidavit and submissions, and denies he had any influential control over the company. In the face of this denial, he should not be denied the opportunity to present his case in support of this contention.
[12] In a similar vein he sets out in his further submissions the basis upon which the company was put into administration. The appointment of an administrator was only one of a number of ways to wind up the affairs of the company. The applicant says, and it is supported by the evidence from his accountant, that this offered the best method of protection to the director Damon Hughes. Importantly there were no other creditors, and as principal shareholder and only creditor, can it confidently be said that the appointment of the administrator was for the benefit of creditors consistent with intent of the operation of that phase in section 56AD, even though the applicant did receive a benefit. He would have received the same benefit if the company had been dissolved or deregistered by some other means to realise the assets of the company. The applicant held a fixed and floating charge over all of the assets and undertaking of the company. As submitted by the applicant this was not a phoenix company being wound up to rise again from the ashes which is the mischief the section addresses. It is appropriate that this be explored at a hearing rather than on a summary basis.
[13] Although these matters are not decisive of this appeal they are relevant when considering the overall exercise of discretion where the applications are consolidated.
[14] The fact that both the excluded individual application and the permitted individual application were consolidated was either not put to or considered by the member. Nor was it submitted that the determination of the excluded individual application could be decided on essentially the same facts as those relevant to the permitted individual application. This issue was not, therefore specifically addressed as one of the discretionary factors to be taken into account. If fact, quite the contrary occurred. The member took the view that if the extension of time application was granted, it would have the effect of delaying the hearing of Mr McClintock’s permitted individual application. Again this is not the case because both applications are consolidated they will be heard together.
[15] On information before the member at the time of her decision there is no suggestion that the discretion did miscarry. However there were matters, that had she been appraised of, might have led to a different decision.
[16] That, coupled with the reservations expressed about the learned member’s summary conclusions about whether Mr McClintock was an influential person, and whether the appointment of an administrator was for the benefit of creditors, we have come to the decision that the discretion should now be exercised in favour of the applicant and the extension of time be granted.
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