Queensland Building and Construction Commission v Mudri - [2016] QCATA 183

CITATION:

Queensland Building and Construction Commission v Mudri [2016] QCATA 183

PARTIES:	Queensland Building and Construction Commission (Applicant/Appellant)
v
Miroslav Mudri (Respondent)
APPLICATION NUMBER:		APL474-15

MATTER TYPE:

Appeals

HEARING DATE:

21 June 2016

HEARD AT:

Brisbane

DECISION OF:

Justice Carmody
Member Gardiner

DELIVERED ON:

24 November 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT:

1. The appeal is allowed.

2. The tribunal decision dated 14 October 2015 is set aside and substituted with an order that the respondent is not a permitted individual.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – APPEALS – where the respondent was a director of a company – where the company was liable to pay an adjudicated amount – where the company was wound up for insolvency – where the company failed to pay the adjudicated amount relying on its claim in Supreme Court proceedings – whether or not paying the adjudicated amount constitutes a reasonable step for the purposes of s 56AD(8) – where the tribunal found the respondent had taken all reasonable steps to avoid the winding up

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – SUBSTITUTED VERDICT OR JUDGMENT – where a review tribunal held that the respondent was a permitted individual within the meaning of the Queensland Building and Construction Commission Act 1991 (Qld) s 56AD – where the appeal tribunal allowed the appeal – where the appeal tribunal found the respondent had not taken all reasonable steps to avoid the happening of the relevant event – where the appeal tribunal remitted the matter for rehearing “according to law and the findings disclosed in these reasons for judgment” – where the rehearing tribunal reached a different conclusion to the appeal tribunal – whether the rehearing tribunal erred in law

Judicial Review Act 1991 (Qld) Parts 3, 5

Building and Construction Industry Payments Act 2004 (Qld) ss 29, 31, 100, 26

Queensland Building and Construction Commission Act 1991 (Qld) ss 31, 56AC, 56AD, 56AE

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 146, 147

Anisminic v Foreign Compensation Commission [1969] 2 AC 147

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139

Brodyn Pty Ltd t/as Time Cost and Quality v Davenport (2004) 61 NSWLR 421

Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389

Craig v State of South Australia (1995) 184 CLR 163

Intero Hospitality Projects Pty Ltd v Empire Interior (Australia) Pty Ltd & Anor [2008] QCA 83

Mudri v Queensland Building and Construction Commission [2014] QCAT 222

Mudri v Queensland Building and Construction Commission [2015] QCAT 412

Queensland Building and Construction Commission v Mudri [2015] QCATA 78

APPEARANCES and REPRESENTATION (if any):

APPLICANT/APPELLANT Mr R Anderson QC of Counsel instructed by Robinson Locke Litigation Lawyers
RESPONDENT Mr M Mudri

REASONS FOR DECISION

At issue in this appeal is the legal status of the respondent as a ‘permitted individual’ under the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) which, in turn, hinges…

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: [2016] QCATA 183
Decision Date: 24 November 2016

CaseChat Overview and Summary

The Queensland Building and Construction Commission appealed against the decision of the Queensland Civil and Administrative Tribunal (QCAT) which had set aside a penalty imposed on the respondent, Mr. Mudri, for his company’s failure to pay an adjudicated amount. The QCAT had found that Mr. Mudri was a permitted individual within the meaning of section 56AD(8) of the Queensland Building and Construction Commission Act 1991, and had taken all reasonable steps to avoid the winding up of his company. The Commission argued that the QCAT had erred in finding that Mr. Mudri had taken all reasonable steps to avoid the winding up of the company and that it should not have remitted the matter for rehearing.

The legal issues before the appeal tribunal included whether paying the adjudicated amount constituted a reasonable step for the purposes of section 56AD(8) of the Act, and whether the QCAT had erred in law in setting aside the penalty and remitting the matter for rehearing. The tribunal found that the QCAT had erred in finding that Mr. Mudri had taken all reasonable steps to avoid the winding up of his company, and that it should not have remitted the matter for rehearing. The tribunal held that paying the adjudicated amount was not a reasonable step for the purposes of section 56AD(8) of the Act, and that Mr. Mudri had not taken all reasonable steps to avoid the winding up of his company.

The appeal tribunal set aside the QCAT’s decision and substituted it with an order that Mr. Mudri was not a permitted individual. The tribunal held that the QCAT had erred in law in finding that Mr. Mudri had taken all reasonable steps to avoid the winding up of his company, and that it should not have remitted the matter for rehearing. The tribunal found that paying the adjudicated amount was not a reasonable step for the purposes of section 56AD(8) of the Act, and that Mr. Mudri had not taken all reasonable steps to avoid the winding up of his company. The tribunal allowed the appeal and set aside the QCAT’s decision, substituting it with an order that Mr. Mudri was not a permitted individual.

Orders

Orders of the court

IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT:

1. The appeal is allowed.

2. The tribunal decision dated 14 October 2015 is set aside and substituted with an order that the respondent is not a permitted individual.

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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