| CITATION: | Mudri v Queensland Building and Construction Commission [2015] QCAT 412 |
| PARTIES: | Miroslav Mudri (Applicant) |
| v | |
| Queensland Building and Construction Commission (Respondent) |
| APPLICATION NUMBER: | OCR229-13 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Gordon |
| DELIVERED ON: | 14 October 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Queensland Building and Construction Commission dated 15 August 2013 that Miroslav Mudri is not a permitted individual is set aside. 2. Miroslav Mudri is categorised as a permitted individual. |
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REPRESENTATIVES:
| APPLICANT: | Glyn James Watson (counsel) instructed by Cranston McEachern Lawyers |
| RESPONDENT: | Malcolm Robinson of Robinson Locke Litigation Lawyers |
REASONS FOR DECISION
This application has been remitted back to the Tribunal by the appeal Tribunal for reconsideration.
It concerns a company (Bridgeport Constructions Pty Ltd) which was wound up in insolvency by the Supreme Court. Mr Mudri, the applicant, was a former director of the company and was an “influential person” for the company. Therefore, because of the winding up, he became an “excluded individual” with the effect that his building licence stood to be cancelled by the Queensland Building and Construction Commission (QBCC).
He applied to the QBCC to be categorised a “permitted individual” in an attempt to retain his building licence. On 15 August 2013 the QBCC refused this application. Mr Mudri then applied to the Tribunal to review this decision. On 21 May 2014 on review, the Tribunal set…
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Details
- Case
- [2015] QCAT 412
- Decision Date
CaseChat Overview and Summary
In the Supreme Court of Queensland, the case of Mudri v Queensland Building and Construction Commission was heard, involving a dispute regarding the classification of Miroslav Mudri as a permitted individual under the Building and Construction Industry Payments Act 2004. The Queensland Building and Construction Commission had previously decided that Mudri was not a permitted individual, a determination that impacted the insolvency proceedings of a company he was associated with. This ruling was pivotal as it influenced the company's inability to pay a judgment debt stemming from an adjudicator's decision, which eventually led to the company's liquidation. The central issue before the court was whether the Commission's decision correctly categorised Mudri and what implications this had on the company's financial obligations and subsequent insolvency.
The court had to consider the legal framework provided by the Building and Construction Industry Payments Act 2004, particularly how judgments based on adjudications differ from final court orders. The court noted that while adjudication decisions must be paid, they do not conclusively determine the rights and obligations of the parties. This understanding was crucial in assessing whether the company's failure to pay the judgment, despite being insolvent, was justified or unreasonable. The court also examined whether the company had taken all reasonable steps to avoid the circumstances leading to its insolvency and whether the Commission's decision was properly made.
In its reasoning, the court found that the Commission's decision to categorise Mudri as not a permitted individual was flawed and set it aside. The court determined that Mudri should indeed be considered a permitted individual, which had significant implications for the company's obligations. The court emphasised that while the company's insolvency was unfortunate, it was not solely due to the failure to pay the adjudication judgment. Instead, it was the result of a complex interplay of factors, including the company's financial management and the Commission's oversight. The court's decision recognised the nuanced nature of adjudications under the 2004 Act and the importance of correctly identifying permitted individuals to prevent unjust outcomes.
The court's final orders were to set aside the Commission's decision that Mudri was not a permitted individual and to reclassify him as such. This decision had the effect of altering the landscape of the company's insolvency proceedings and potentially reopening avenues for resolving the financial disputes that led to the company's collapse.
The court had to consider the legal framework provided by the Building and Construction Industry Payments Act 2004, particularly how judgments based on adjudications differ from final court orders. The court noted that while adjudication decisions must be paid, they do not conclusively determine the rights and obligations of the parties. This understanding was crucial in assessing whether the company's failure to pay the judgment, despite being insolvent, was justified or unreasonable. The court also examined whether the company had taken all reasonable steps to avoid the circumstances leading to its insolvency and whether the Commission's decision was properly made.
In its reasoning, the court found that the Commission's decision to categorise Mudri as not a permitted individual was flawed and set it aside. The court determined that Mudri should indeed be considered a permitted individual, which had significant implications for the company's obligations. The court emphasised that while the company's insolvency was unfortunate, it was not solely due to the failure to pay the adjudication judgment. Instead, it was the result of a complex interplay of factors, including the company's financial management and the Commission's oversight. The court's decision recognised the nuanced nature of adjudications under the 2004 Act and the importance of correctly identifying permitted individuals to prevent unjust outcomes.
The court's final orders were to set aside the Commission's decision that Mudri was not a permitted individual and to reclassify him as such. This decision had the effect of altering the landscape of the company's insolvency proceedings and potentially reopening avenues for resolving the financial disputes that led to the company's collapse.
Orders
Orders of the court
1. The decision of the Queensland Building and Construction Commission dated 15 August 2013 that Miroslav Mudri is not a permitted individual is set aside.
2. Miroslav Mudri is categorised as a permitted individual.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Failure to pay the judgment based on the adjudication decision. It is of course correct to say that if the company had paid the judgment then it would not have been wound up in the circumstances which later occurred. And it was submitted at the hearing that all judgments ought to be paid and therefore it was unreasonable not to do so, whatever the circumstances. This submission needs to be considered in the light of section 100 of the Building and Construction Industry Payments Act 2004. This provides that nothing done under Part 3 of the Act (the adjudication provisions) affects the contractual rights of the parties or any civil proceedings except that payment of an adjudicated amount must be taken into account. Indeed, subsection (3)(b) permits the court in civil proceedings to order restitution of an amount paid for an adjudicated amount if appropriate having regard to its decision in the proceedings. The effect of section 100 has been considered in a number of cases in the Supreme Court. In J Hutchinson Pty Ltd v Galform Pty Ltd & Ors [2008] QSC 205 Justice Chesterman said that a payment of a judgment entered following an adjudication decision was only a payment on account of a liability that will be finally determined in some other way. The judgment was however, conclusive final and binding, “unless and until a court pronounces judgment in a proceeding brought by virtue of the contractual rights preserved by s 100, which is inconsistent with the earlier judgment”. In principle it is the same as a judgment until that judgment is reversed on appeal.[29] [29]At paragraphs 43 to 45. As was pointed out by Muir JA in Intero Hospitality Projects P/L v Empire Interior (Australia) P/L & Anor [2008] QCA 83[30]:-.. the Act is intended to provide a mechanism by which claims for payment under construction contracts can be decided quickly, on an interim basis and by which payment can be enforced even though a dispute in respect of the right to payment is being litigated or is subject to an alternative dispute resolution process. It is apparent also that in making determinations under the Act adjudicators will often lack the evidence upon which and the time within which to make fully informed considered determinations. That does not matter in the scheme of things, as adjudicators’ determinations do not finally determine parties’ contractual rights. That is left to the courts or to alternative dispute resolution processes agreed upon by the parties. [30]At paragraph 51. A judgment obtained based upon an adjudication decision under the 2004 Act is therefore not the same as a judgment obtained by final court order. Although it must be paid, it is not conclusive of issues between the parties. Whilst there is no appeal from an adjudication decision, it can be challenged in other ways. Since it is an administrative decision, it can be the subject of judicial review in the Supreme Court.[31] In such proceedings the decision can be set aside or declared void for example where the adjudicator reached a conclusion on the wrong evidence[32], or on a basis that neither side had addressed[33], or failed to consider material submitted[34], or failed to consider something required by statute or decided something where there was no power to do so[35] or where the contract was illegal[36]. Upon payment into court, the claimant may be restrained from pursuing a judgment based on an adjudication decision where there is a serious challenge to it and if that challenge were successful the claimant would not be able to repay the money.[37] [31]Northbuild Construction P/L v Central Interior Linings P/L & Ors [2011] QCA 22.[32]Unifor Australia Pty Ltd v Katrd Pty Ltd atf Morshan Unit Trust t/as Beyond Completion Projects [2012] QSC 252.[33]David & Gai Spankie & Northern Investment Holdings Pty Ltd v James Trowse Constructions Pty Ltd & Ors (No. 2) [2010] QSC 166.[34]Northbuild Construction at [21].[35]BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd & Ors [2012] QSC 346 at [9].[36]Agripower Australia Ltd v Queensland Engineering & Electrical Pty Ltd [2015] QSC 268.[37]For example, BRB Modular Pty Ltd v AWX Constructions Pty Ltd & Ors [2015] QSC 222.
Ratio Decidendi
Legal Principle Established
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