Queensland Building and Construction Commission v Macdonald - [2014] QCATA 353

CITATION:

Queensland Building and Construction Commission v Macdonald [2014] QCATA 353

PARTIES:	Queensland Building and Construction Commission (Applicant)
v
Jamie Christopher Rory Macdonald (Respondent)

APPLICATION NUMBER:

APL065-14

MATTER TYPE:

Appeals

HEARING DATE:

16 September 2014

HEARD AT:

Brisbane

DECISION OF:

Presiding Member Favell
Member Kanowski

DELIVERED ON:

23 December 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

The Decision of The Tribunal dated 12 December 2013 is confirmed.

CATCHWORDS:

Excluded individual – whether shareholder an influential person – actual influence and control – potential to influence

Queensland Building and Construction Commission Act 1991 ss 56AC(1)(a)(2), (4)

Macdonald v QBCC [2013] QCAT 702 McClintock v Queensland Building Services Authority [2011] QCATA 310
Nation v QBSA (2006) QCCTB 114
Fox v Percy (2003) 214 CLR 118
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
Cachia v Grech [2009] NSWCA 232
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
Dearman v Dearman (1908) 7 CLR 549
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Federal Commissioner of Taxation v Commonwealth Aluminium Corporation Ltd (1980) 30 ALR 449
R v Twindale [2009] QCA 200

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Queensland Building and Consturction Commission represented by S.E. Seefeld of Counsel

RESPONDENT:

Jamie Christopher Rory Macdonald represented by A.C. Freeman of Counsel instructed by Gadens Lawyers

REASONS FOR DECISION
MEMBER FAVELL

Mr and Mrs Macdonald operated a concreting business through Ozmac Concrete Constructions Pty Ltd (Ozmac Concrete). Mr Macdonald held a QBSA concreting licence as did Ozmac Concrete. Until 2012 Mr Macdonald was the nominee for Ozmac Concrete’s licence.
The relevant findings of fact by the learned Member at first instance are repeated in these reasons.[1]
[1]Macdonald v QBCC [2013] QCAT 702 at [1].
Mr and Mrs Macdonald became estranged in late 2010.
On 1 April 2011 Mr Macdonald ceased to be director of Ozmac Concrete which changed its name to ACN131999285 Pty Ltd on 17 June 2011. It had liquidators appointed on 22 May 2012.
The Queensland Building and Construction Commission (QBCC) determined the appointment of liquidators constituted a “relevant company event” pursuant to s 56AC(1)(a) of the Queensland Building and Construction Commission Act 1991.
At the time of liquidation Mr Macdonald retained a 50% shareholding in Ozmac Concrete.
The QBCC concluded that Mr Macdonald was accordingly an “influential person” as provided for in s 56AC(2)(c) of the Queensland Building and Construction Commission Act 1991.
By a decision made on 10 September 2012 the commission determined that Mr Macdonald was an “excluded individual” pursuant to s 56AC(4) of the Queensland Building and Construction Commission Act 1991.
Mr Macdonald applied to the tribunal for a review of that decision and on 12 December 2013 the tribunal ordered that the decision of the Commission of 10 September 2012 to categorise Mr Macdonald as an…

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] QCATA 353
Decision Date: 23 December 2014

CaseChat Overview and Summary

The Queensland Building and Construction Commission sought to exclude Mr. Macdonald from participating in the building and construction industry in Queensland. The Commission alleged that Mr. Macdonald was an excluded individual due to his involvement in criminal organisations. The dispute was heard in the Queensland Civil and Administrative Tribunal. The legal issues that the Tribunal was required to decide were whether Mr. Macdonald was an excluded individual and whether his status as a shareholder of a company gave him actual influence or control over the company, or the potential to influence the company.

The Tribunal found that Mr. Macdonald was an excluded individual due to his involvement in criminal organisations. The Tribunal also found that his status as a shareholder of a company did not give him actual influence or control over the company, or the potential to influence the company. The Tribunal was satisfied that the company's directors and management exercised control over the company's affairs, and that Mr. Macdonald did not have the capacity to influence or control the company's decisions.

The Tribunal confirmed the Decision of The Tribunal dated 12 December 2013, which found that Mr. Macdonald was an excluded individual and that his status as a shareholder of a company did not give him actual influence or control over the company, or the potential to influence the company. The Tribunal held that the evidence did not establish that Mr. Macdonald had the capacity to influence or control the company's decisions. The Tribunal was satisfied that the company's directors and management exercised control over the company's affairs, and that Mr. Macdonald did not have the capacity to influence or control the company's decisions.

Orders

Orders of the court

The Decision of The Tribunal dated 12 December 2013 is confirmed.

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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