Mudri v Queensland Building and Construction Commission - [2014] QCAT 222

CITATION:

Mudri v Queensland Building and Construction Commission [2014] QCAT 222

PARTIES:	Miroslav Mudri (Applicant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER:

OCR229-13

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

12 May 2014

HEARD AT:

Brisbane

DECISION OF:

Senior Member Oliver

DELIVERED ON:

21 May 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the respondent dated 15 August 2013 is set aside.

2. The applicant be categorised as a permitted individual.

CATCHWORDS:

PERMITTED INDIVIDUAL – where the applicant was a director of a company – where the company was liable to make a payment to a third party under the Building and Construction Industry Payments Act 2004 (Qld) – liability to pay as a matter of law – where applicant commenced proceedings against the third party – whether not paying the adjudicated amount constitutes a reasonable step for the purposes of s 56AD(8) amounts to reasonable step

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr Watson of counsel instructed by Cranston McEachern Lawyers

RESPONDENT:

Mr Robinson, solicitor of Robinson Locke Litigation Lawyers.

REASONS FOR DECISION

Mr Mudri is a registered builder. He was a director of a company through which he operated a building business, Bridgeport Constructions Pty Ltd (‘Bridgeport’). He resigned as a director of Bridgeport in April 2013. On 30 May 2013, a company with which Bridgeport had a business relationship with in 2008, V & ME Constructions Pty Ltd (‘V & ME’), filed an application to wind up Bridgeport on the grounds of insolvency. Bridgeport failed to satisfy an enforcement warrant taken out as a result of an adjudication made in favour of V & ME for $613,025 on 16 December 2008 under the Building and Construction Industry Payments Act 2004 (Qld).
The application for winding up proceeded and liquidators were appointed to Bridgeport on 21 June 2013. There was no contest that Mr Mudri was an influential person in respect of the affairs of Bridgeport. Because of the appointment of liquidators, Mr Mudri immediately was categorised as an excluded individual under s 56AC of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’). To avoid loosing his building licence, even though categorised as an excluded individual, he applied to be categorised as a permitted individual. The Commission rejected his application on 15 August 2013. He then applied to the Tribunal for a review of that decision on the 12 September 2013.
The Tribunal’s power to review a decision of an administrative body is contained in s 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) which requires the Tribunal, on the review application, to produce the correct and preferable decision by way of a rehearing on the merits. That means, that the Tribunal stands in the shoes of the decision-maker and has regard to all of the evidence that was before the decision-maker and any further evidence that is filed in the proceeding.
The test to be applied in deciding whether an individual should be categorised 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: [2014] QCAT 222
Decision Date: 21 May 2014

CaseChat Overview and Summary

The applicant, Mr. Mudri, a director of a company, was involved in a dispute with the Queensland Building and Construction Commission regarding his classification as a permitted individual under the Building and Construction Industry Payments Act 2004 (Qld). The company was obligated to pay a third party, but Mr. Mudri, as the director, commenced proceedings against the third party to avoid making the payment. This led to the Commission deeming Mr. Mudri’s non-payment of the adjudicated amount as not constituting a reasonable step under s 56AD(8). Mr. Mudri sought to have the Commission’s decision reviewed, arguing that he should be classified as a permitted individual.

The primary legal issue before the court was whether Mr. Mudri, by initiating proceedings against the third party to avoid paying the adjudicated amount, had taken a reasonable step as required by s 56AD(8) of the Act. The court had to determine if Mr. Mudri’s actions were justifiable and whether they constituted a reasonable step within the meaning of the legislation. Another consideration was whether Mr. Mudri’s status as a director of the company should exempt him from being liable for the payment under the Act.

The court held that Mr. Mudri’s actions in initiating proceedings against the third party could be considered a reasonable step under s 56AD(8) of the Act. The court found that the initiation of legal proceedings was a legitimate step taken by Mr. Mudri to contest the validity of the payment. Consequently, the court determined that Mr. Mudri should be categorised as a permitted individual, thereby exempting him from liability to pay the adjudicated amount. The court set aside the respondent's decision dated 15 August 2013 and ordered that Mr. Mudri be categorised as a permitted individual.

The court's decision resulted in the annulment of the Commission's previous decision and the reclassification of Mr. Mudri as a permitted individual, thus relieving him from the obligation to make the payment in question. This ruling provided clarity on the interpretation of "reasonable step" under the Building and Construction Industry Payments Act 2004 (Qld) and affirmed the court’s authority to review and set aside administrative decisions when they are deemed to be erroneous or unjust.

Orders

Orders of the court

1. The decision of the respondent dated 15 August 2013 is set aside.

2. The applicant be 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

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Ratio Decidendi

Legal Principle Established

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