NTL Constructions Pty Ltd v Queensland Building and Construction Commission - [2022] QCAT 239

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

NTL Constructions Pty Ltd v Queensland Building and Construction Commission [2022] QCAT 239

PARTIES:

NTL CONSTRUCTIONS PTY LTD

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR487-19

MATTER TYPE:

General administrative review matters

DELIVERED ON:

30 June 2022

HEARING DATE:

30 June 2022

HEARD AT:

Brisbane

DECISION OF:

A/Senior Member Traves

ORDERS:

No order made

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where application to strike out application to review on basis applicant is deregistered – effect of deregistration – whether application to review should be dismissed

Corporations Act 2001 (Cth), s 9, s 601AB, s601AD, s 601AH

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47

Amcus Pty Ltd v Hurst Rentals Pty Ltd (No 2) (2010) 77 ACSR 550

Lomas v Veescorp Pty Ltd [2011] QCATA 290.
Stergiou v City Bank Savings Ltd [2005] ACTA 15
Total Eden Pty Ltd v Pipeline Properties Pty Ltd (1990) 8 ACLC 1075
United Service Insurance Co Ltd (in liq) v Lang (1935) 35 SR (NSW) 487

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

On 10 December 2019 NTL Constructions Pty Ltd (NTL) applied to the Tribunal for a review of the decision by the Queensland Building and Construction Commission dated 14 November 2019 about a scope of works for defective work at a property in Pimpama.
On 16 May 2022 the Commission filed an application to dismiss the proceedings pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) on the basis that NTL was deregistered on 22 November 2021.
NTL was deregistered by ASIC on 22 November 2021 pursuant to s601AB of the Corporations Act 2001 (Qld) (Corporations Act).
The effect of deregistration is that the company ceases to exist: Corporations Act, s 601AD(1). Because the company ceases to exist, it is not a legal entity and it cannot institute or continue legal proceedings brought by it before deregistration.[1] All proceedings brought by or against a deregistered company are a nullity.[2]
[1]United Service Insurance Co Ltd (in liq) v Lang (1935) 35 SR (NSW) 487.
[2]Stergiou v City Bank Savings Ltd [2005] ACTA 15 at [20], per Crispin P citing International Bulk Shipping & Services Ltd v Minerals & Metals Trading Corporation of India[1996] 1 All ER 1017.
All of the property of a deregistered company vests in ASIC on deregistration: s 601AD(2). “Property” is defined in s 9 of the Corporations Act as including a “thing in action”. It is likely, in my view, that the right to review a decision of the Commission, is a chose in action and therefore part of NTL’s property, which has now vested in ASIC. No submissions were directed to this point.
The consequence of deregistration is that no step taken in these proceedings can be…

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: [2022] QCAT 239
Decision Date

CaseChat Overview and Summary

NTL Constructions Pty Ltd sought a review of a decision by the Queensland Building and Construction Commission regarding a scope of works for defective work at a property in Pimpama. The Commission filed an application to dismiss the proceedings on the basis that NTL was deregistered. NTL was deregistered by ASIC on 22 November 2021, and as a result, it ceased to exist as a legal entity and could not institute or continue legal proceedings brought by it before deregistration. The Commission argued that the review proceeding should be dismissed because it was lacking in substance, an abuse of process, and ultimately destined to fail, due to NTL's deregistration.

The Tribunal considered the effect of deregistration on proceedings and the appropriate course of action. Deregistration resulted in the company's property, including the right to review the decision, vesting in ASIC. The consequences of deregistration meant that no step taken in these proceedings could be taken by or against NTL unless the company was reinstated. The Tribunal noted that authorities existed suggesting the proceedings could be dismissed in such circumstances, but also considered authorities suggesting the proceedings could be adjourned or that nothing should be done except refraining from proceeding further.

The Tribunal concluded that the appropriate course was not to dismiss the proceedings but to refrain from taking any further steps in the proceedings. The cause of action remained vested in ASIC, and the Tribunal directed the Registry to close the file. The Tribunal made no further order for the reasons stated.

This decision highlights the importance of considering the effect of a company's deregistration on proceedings and the appropriate course of action in such circumstances. The Tribunal's decision not to dismiss the proceedings but to refrain from taking any further steps may provide guidance for future cases involving deregistered companies.

Orders