Mortimer v Queensland Building and Construction Commission

CITATION: Mortimer v Queensland Building and Construction Commission [2016] QCAT 124

PARTIES:	Peter Owen Mortimer (Applicant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER: OCR 115-15

MATTER TYPE: Occupational regulation matters

HEARING DATE: 6 May 2016

HEARD AT: Cairns

DECISION OF: Member JC Carey

DELIVERED ON: 24 May 2016

DELIVERED AT: Townsville

ORDERS MADE:

1. The decision of the QBCC is affirmed.

2. The Applicant is to be categorised as an ‘excluded individual’ within the meaning of s 56 of the Queensland Building and Construction Commission Act 1991 (Qld).

CATCHWORDS:

Permitted individual – review of QBCC decision – reasonable steps to avoid liquidation

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Self

RESPONDENT: Ms K Joyce, QBCC

REASONS FOR DECISION

1. The Applicant was the sole director of Mortimer Constructions Pty Ltd.  The Applicant purchased another company, Tedesco Engineering, in 2011. 

2. As the business grew the Applicant was required to personally supervise projects on site, which took him away from the office for extended periods of time.  The Applicant states that he relied on his employees to look after financial aspects of the company in his absence.

3. The company was placed in liquidation on 27 May 2015. 

4. The issues for decision are:

   a)Identification of the relevant event;

   b)Identification of the circumstances that resulted in the happening of the relevant event;

   c)Whether the Applicant took all reasonable steps to avoid the coming into existence of those circumstance; and

   d)If (c) is satisfied, should discretion be exercised to classify the Applicant as a ‘permitted individual’.[1] 

   [1]Younan v Queensland Building Services Authority [2010] QDC 158 (‘Younan v QBSA’).

Relevant event

1. There is no dispute that the relevant event was the appointment of a liquidator to Mortimer Constructions Pty Ltd on 27 May 2015.

Identification of the circumstances that resulted in the happening of the relevant event

1. The Applicant contends that the circumstances which led to the happening of the relevant event are:

   a)an allegation of fraud by employees of the company, being misappropriation of company funds; and

   b)failure to recover large sums of money under a subcontract with a company called Michael Camporeale Builders (‘Camporeale’), pursuant to adjudications under the Building and Construction Industry Payments Act 2004 (Qld). Failure to recover those sums severely restricted the cash flow and resulted in the company being unable to pay its debts, including tax debts, as and when they fell due.

2. The Respondent claims that the relevant event was failure to make provision for tax liabilities.  The Respondent’s position is that the debt to Camporeale added to an existing problem that could not have been overcome by the Applicant, even if the outstanding monies under the subcontract were paid. The Respondent points to financial reports produced by the Applicant that show the tax liabilities were increasing, even while the Applicant was making regular repayments to the Australian Tax Office (‘ATO’).

3. According to Younan v Queensland Building, by which the Tribunal is bound, the standard required is that the Applicant must produce evidence that all reasonable…