| 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 |
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
Mr Polidano was a director of Elite Building Services Pty Ltd (“the Company”). The Company carried on business performing building repairs and renovations.
On 9 December 2009 liquidators were appointed to the Company.
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”).
This is an application by Mr Polidano to review the Authority’s decision.
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
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
Mr Polidano relies upon the affidavit of Todd William Kelly sworn 15 November 2010. Mr Kelly is a liquidator of the Company.
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”…
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- Case
- [2011] QCAT 117
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the tribunal were whether Mr Polidano was indeed an excluded individual and, if so, whether the winding up of a company for the benefit of a creditor constituted a members' voluntary winding up for the purposes of determining his status. The tribunal had to interpret the relevant provisions of the Security of Payment Act and related case law to determine the meaning of "benefit" in the context of a company being wound up for the benefit of a creditor.
In reaching its decision, the tribunal examined the legislative framework and relevant case law. It concluded that Mr Polidano was an excluded individual as defined in the Security of Payment Act. The tribunal found that the winding up of the company for the benefit of a creditor did not constitute a members' voluntary winding up, as the benefit was not to the members of the company but to a creditor. The tribunal's interpretation of the term "benefit" was pivotal in affirming the Authority's decision. The application for review was dismissed on the basis that the Authority's decision was supported by the evidence and the applicable law.
The tribunal's final orders were to affirm the Authority's decision and dismiss Mr Polidano's application for review, leaving the determination of his status as an excluded individual unchanged.
Orders
Orders of the court
[1] The Authority’s decision is affirmed.
[2] The application for review of the decision that Mr Polidano is an excluded individual is dismissed.
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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