McClintock v Queensland Building Services Authority - [2012] QCAT 366

CITATION:

McClintock v Queensland Building Services Authority [2012] QCAT 366

PARTIES:	Peter Cyril McClintock (Applicant)
v
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER:

GAR006-10

MATTER TYPE:

General administrative review matters

HEARING DATE:

8 December 2011

HEARD AT:

Brisbane

DECISION OF:

Dr B Cullen, Member

DELIVERED ON:

10 August 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Mr McClintock’s application to become a permitted individual is dismissed.

2. The decision of the Queensland Building Services Authority refusing to categorise Mr McClintock as a permitted individual is confirmed.

CATCHWORDS:

OCCUPATIONAL REGULATION – Application to Queensland Building Services Authority to be categorised as apermitted individual – refusal – review – Applicant did not take all reasonable steps to avoid relevant event – decision of the Authority confirmed

Queensland Building Services Authority Act 1991, s 56AD(1)

McClintock v Queensland Building Services Authority [2011] QCATA 310

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr M J Taylor, Counsel, instructed by Hallett Legal Pty Ltd

RESPONDENT:

Mr G Thomson, Counsel, instructed by Robinson Locke Litigation Lawyers Pty Ltd

REASONS FOR DECISION

Procedural History

The Applicant, Peter McClintock, is a registered builder, and was a former director of Crescent Couriers Pty Ltd (“Crescent”), a company that manufactured lattice, and did both fencing and residential construction work.
Mr McClintock resigned his directorship of Crescent on 15 April 2007, leading to his commencing applications for review of two decisions made by the Queensland Building Services Authority (“QBSA”) – (1) a review of the decision that Mr McClintock was an influential person vis-à-vis Crescent and therefore an “excluded individual”; and (2) a review of the decision of the QBSA refusing to categorise Mr McClintock as a “permitted individual”.

Basic chronology of events:

June 2006 Mr McClintock began having marital problems

June/September 2006 Crescent ceased trading

January 2007 Marital separation

31 March 2007 Mr McClintock says that all trade creditors of Crescent were paid by this date

15 April 2007 Mr McClintock resigned as director of Crescent; appointment of new director, Mr Damon Hughes

March-April 2008 ATO issue arose

May 2008 Family Court property settlement

1 July 2008 Appointment of administrator (Mr Jonathan Paul McLeod) to Crescent

Excluded Individual Matter (QR127-09)

On 16 July 2008, the Queensland Building Services Authority (“QBSA”) proposed to cancel Mr McClintock’s QBSA license, as the QBSA considered him to be an “excluded individual” within the meaning of s 56AF of the Queensland Building Services Authority Act 1991 (“the Act”). The QBSA’s basis for the proposed exclusion was that Mr McClintock was “a director, secretary or influential person” at the time of, or within one year of, an Administrator being appointed for Crescent.
In his application for review of the QBSA’s excluded individual decision, Mr McClintock asserted that he was not an influential person at the time or within one year of the event, and that ASIC records clearly demonstrate this to be the case. The excluded individual matter has already been heard and determined by the Tribunal. On appeal[1], the Tribunal affirmed the decision made by Member…

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: [2012] QCAT 366
Decision Date

CaseChat Overview and Summary

Peter McClintock, a registered builder and former director of Crescent Couriers Pty Ltd, applied to the Queensland Civil and Administrative Tribunal (QCAT) for review of the Queensland Building Services Authority’s (QBSA) decision not to categorise him as a permitted individual. The QBSA had refused to categorise Mr McClintock as a permitted individual on the basis that he had not taken all reasonable steps to avoid the circumstances that resulted in the appointment of an administrator to Crescent. The primary legal issue before the Tribunal was whether Mr McClintock had taken all reasonable steps to avoid the coming into existence of the circumstances that resulted in the happening of the relevant event, being the appointment of an administrator to Crescent.

Dr B Cullen, QCAT Member, found that Mr McClintock had not taken all reasonable steps to avoid the circumstances that led to the appointment of an administrator to Crescent. Dr Cullen was not satisfied with Mr McClintock’s evidence and found him to be an entirely unhelpful and unbelievable witness. Dr Cullen was also unpersuaded by the evidence of Mr McClintock’s accountant, Mr Ian Ahrens, who was found to be anything but neutral and to have an agenda to assist his long-term client, Mr McClintock. Dr Cullen found that Mr McClintock had not taken any reasonable steps to avoid the circumstances that resulted in the appointment of an administrator to Crescent, and that the obvious reasonable step for Mr McClintock to have taken would have been to waive the unpaid entitlements drawn up in his favour. Dr Cullen concluded that Mr McClintock had not demonstrated that he took all reasonable steps to avoid the appointment of an administrator to Crescent.

Mr McClintock’s application to become a permitted individual was dismissed, and the decision of the QBSA refusing to categorise Mr McClintock as a permitted individual was confirmed.

Orders