Queensland Building and Construction Commission v Jensen - [2014] QCATA 28

CITATION:

Queensland Building and Construction Commission v Jensen [2014] QCATA 028

PARTIES:	Queensland Building and Construction Commission (Applicant/Appellant)
v
Jan Boss Jensen (Respondent)

APPLICATION NUMBER:

APL171-13

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Oliver
Member Gardiner

DELIVERED ON:

19 February 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

Leave to appeal granted1.

The Tribunal’s decision of 25 March 2013 is set aside.2.

The decision of the applicant dated 8 February 2013 not to categorise the applicant as a permitted individual is confirmed.3.

CATCHWORDS:

Occupational Regulation – where the applicant refused to categorise the respondent as a permitted individual so he could retain his builders licence – where Tribunal must consider the matters referred to in section 56AD(8) and section 56AD(8A) of the Queensland Building and Construction Commission Act – whether the business operated by the respondent was sufficiently capitalised – whether the cause of the relevant event of the company related to external factors resulting in the insolvency of the business – whether the evidence established that the respondent made any provision or appropriate provision for Commonwealth or State taxation debts

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(3)

Queensland Building and Construction Commission Act 1991 (Qld) ss 56AD(8), 56AD(8A)

Flegg v Crime and Misconduct Commission and Anor [2013] QCA 376

Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Chambers v Jobling (1986) 7 NSWLR 1
Fox v Percy (2003) 214 CLR 118

APPEARANCES and REPRESENTATION (if any):

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).

REASONS FOR DECISION

On 25 March 2013 the Tribunal made orders setting aside a decision of the former Queensland Building Services Authority refusing to categorise Mr Jensen as a permitted individual pursuant to section 56AD(8) of the now Queensland Building and Construction Commission Act 1991 (Qld) and ordered that he be categorised as a permitted individual. The effect of this decision meant that Mr Jensen could keep his licence as a registered builder.

On 23 April 2013 the Commission filed an application for leave to appeal or appeal the Tribunal’s decision. Broadly, the basis of the appeal is that the learned member failed to properly consider the requirements of sections 56AD(8) and 56AD(8A) of the Queensland Building and Construction Commission Act 1991 (Qld) (the QBCC Act) in deciding that Mr Jensen ‘took all reasonable steps to avoid the coming into existence of the circumstances that resulted in the happening of the relevant event’, and also that he had made proper provision for Commonwealth and State taxation debts.

The relevant event was the appointment of liquidators to JAD Building and Constructions Pty Ltd (“JAD”), a company of which Mr Jensen was a director on 4 May 2010. Section 56AC of the QBCC Act provides that in these circumstances Mr Jensen is categorised as an excluded individual and thereby his building licence is…

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.

Keep reading for free

Create a free CaseChat account to read Queensland Building and Construction Commission v Jensen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] QCATA 28
Decision Date: 19 February 2014

CaseChat Overview and Summary

The matter before the court was an appeal by Jensen against a decision by the Queensland Building and Construction Commission (QBCC) to refuse to categorise him as a permitted individual, which would have allowed him to retain his builders licence. The dispute centred on whether the QBCC had correctly exercised its discretion in refusing to categorise Jensen as a permitted individual under the Queensland Building and Construction Commission Act. The court was required to determine whether the QBCC had considered all relevant matters, specifically those outlined in sections 56AD(8) and 56AD(8A) of the Act. These sections pertain to the financial stability of the business operated by Jensen and whether any insolvency was due to external factors or inadequate provisions for taxation debts.

The court examined whether the QBCC had adequately assessed whether Jensen's business was sufficiently capitalised, which is a critical factor under section 56AD(8). It also scrutinised whether the QBCC had considered if the insolvency of Jensen's business was due to external factors, as required by section 56AD(8A). Furthermore, the court looked into whether there was sufficient evidence to establish that Jensen had made appropriate provisions for Commonwealth or State taxation debts. The court's task was to ensure that the QBCC had not overlooked any pertinent factors and had exercised its discretion lawfully and rationally.

In its reasoning, the court found that the QBCC had not appropriately considered the matters outlined in sections 56AD(8) and 56AD(8A) of the Act. The court held that the QBCC's decision was flawed because it did not sufficiently address the evidence and arguments presented by Jensen regarding the financial stability of his business and the causes of the insolvency. Consequently, the court set aside the Tribunal’s decision and confirmed the QBCC’s decision not to categorise Jensen as a permitted individual. This decision was based on the QBCC's failure to consider all relevant factors and exercise its discretion in a manner consistent with the statutory requirements.

Orders

Orders of the court

Leave to appeal granted1.

The Tribunal’s decision of 25 March 2013 is set aside.2.

The decision of the applicant dated 8 February 2013 not to categorise the applicant as a permitted individual is confirmed.3.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.