Polidano v Queensland Building Services Authority

CITATION: Polidano v Queensland Building Services Authority [2011] QCAT 117

PARTIES:	Mr Richard Polidano
v
Queensland Building Services Authority

APPLICATION NUMBER:   GAR157-10

MATTER TYPE: General administrative review matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Sandra Deane, Member

DELIVERED ON: 5 April 2011

DELIVERED AT: Brisbane

ORDERS MADE:    

[1]    The Authority’s decision is affirmed.

[2]    The application for review of the decision that Mr Polidano is an excluded individual is dismissed.

CATCHWORDS: 

Excluded individual – whether winding up of company for the benefit of a creditor – consideration of “benefit” – whether winding up a members’ voluntary winding up

Queensland Building Services Authority Act 1991, s 56AC

McClintock v QBSA [2010] QCAT 340
Gallagher v QBSA [2010] QCAT 383

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

Background

1. Mr Polidano was a director of Elite Building Services Pty Ltd (“the Company”).  The Company carried on business performing building repairs and renovations.

1. On 9 December 2009 liquidators were appointed to the Company.

1. As a consequence, the Queensland Building Services Authority (“the Authority”) decided that Mr Polidano is an excluded individual pursuant to section 56AC of the Queensland Building Services Authority Act 1991 (‘QBSA Act”).

1. This is an application by Mr Polidano to review the Authority’s decision.

1. Mr Polidano submits that the liquidation was not “for the benefit of a creditor” within the meaning of section 56AC(2) of the QBSA Act and therefore section 56AC(4) of the QBSA Act does not apply so there is no basis for the Authority’s decision.

Legislation

1. Section 56AC of the QBSA Act relevantly provides:

“(2) This section also applies to an individual if—

(a) after the commencement of this section, a company, for the benefit of a creditor—

(i)   has a provisional liquidator, liquidator, administrator or controller appointed; or

(ii) is wound up, or is ordered to be wound up; and

(b) 5 years have not elapsed since the event mentioned in paragraph (a)(i) or (ii) (relevant company event) happened; and

(c) the individual—

(i)   was, when the relevant company event happened, a   director or secretary of, or an influential person for, the company;

…………

(4) If this section applies to an individual because of subsection (2), the individual is an excluded individual for the relevant company event.”

Evidence

1. Mr Polidano relies upon the affidavit of Todd William Kelly sworn 15 November 2010.  Mr Kelly is a liquidator of the Company.

1. Mr Kelly gave evidence that:

a)“At the time when the liquidation commenced, it appeared that the company may be insolvent, as the total of the claims against it appeared to be in excess of the value of its assets….the reason for this apparent insolvency was that the combined claims made by the two directors, Mr Campbell and the Applicant, and their respective related parties, exceeded the value of the assets of the company.  Non-related “trade”…