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

CITATION:

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

PARTIES:	Queensland Building and Construction Commission (Applicant/Appellant)
v
Miroslav Mudri (Respondent)

APPLICATION NUMBER:

APL257-14

MATTER TYPE:

Appeals

HEARING DATE:

16 March 2015

HEARD AT:

Brisbane

DECISION OF:

Justice Thomas, President
Acting Senior Member Browne

DELIVERED ON:

12 June 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The appeal on Ground 1 is allowed and the decision of the Tribunal on 21 May 2014 is set aside.

2. The application to review the decision of whether Mr Mudri should be categorised as a permitted individual is to be returned to the tribunal for reconsideration according to law and the findings disclosed in these reasons for judgment.

CATCHWORDS:

APPEAL – OCCUPATIONAL REGULATION – PERMITTED INDIVIDUAL – where Tribunal found applicant took all reasonable steps – where reasons given for the Tribunal’s decision – whether discretion under s 56AD properly exercised – whether error in the application of s 56AD

Building and Construction Industry Payments Act 2004 (Qld) s 5, s 29
Queensland Building and Construction Commission Act 1991 (Qld) s 3, s 56AD, s 86
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 19, s 24, s 146, s 147

Ericson v Queensland Building and Construction Commission [2014] QCA 297; cited
Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58; cited
Laidlaw v Queensland Building Services Authority [2010] QCAT 70; cited
Mudri v Queensland Building and Construction Commission [2014] QCAT 222
Younan v Queensland Building Services Authority [2010] QDC 158; cited

REPRESENTATIVES:

APPLICANT:

Mr R Anderson of Counsel instructed by Robinson Locke Litigation Lawyers

RESPONDENT:

Mr G Watson of Counsel instructed by Cranston McEachern Lawyers

REASONS FOR DECISION

Some years ago Mr Mudri operated a building business, Bridgeport Constructions Pty Ltd, until he resigned as a director.
Before Mr Mudri resigned as a director, liquidators were appointed to Bridgeport because V & ME Constructions Pty Ltd applied to wind up the company.
Bridgeport and V & ME had a previous business relationship that ended in a legal dispute. Bridgeport owed V & ME money.[1] Bridgeport did not pay the money. Mr Mudri, as director, obtained legal advice and Bridgeport commenced Supreme Court proceedings against V & ME. Bridgeport also forgave a number of company debts. The winding up that followed and the appointment of liquidators was a ‘relevant company event’.[2]
[1]On 16 December 2008, V & ME obtained a decision in the amount of $613,025.00 (the adjudicated decision) under the Building and Construction Industry Payments Act 2004 (Qld).
[2]Under s 56AC of the Queensland Building and Construction Commission Act 1991 (Qld) (the QBCC Act).
Mr Mudri was categorised as an ‘excluded individual’[3] because he was a director of Bridgeport. This meant that Mr Mudri could no longer hold a licence unless he became a ‘permitted individual’.
[3]QBCC Act s 56AC(4).
Mr Mudri applied to the Queensland Building and Construction Commission (QBCC) to be categorised as a ‘permitted individual’.[4] His application was…

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 Mudri 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: [2015] QCATA 78
Decision Date: 12 June 2015

CaseChat Overview and Summary

The case of Queensland Building and Construction Commission v Mudri involved a dispute over the status of Mr Mudri as a permitted individual within the occupational regulation framework. The matter was before the Queensland Court of Appeal, which was tasked with reviewing the Tribunal's decision to deny Mr Mudri's application to be categorised as a permitted individual. The Tribunal had found that Mr Mudri had taken all reasonable steps to comply with the regulations, but still declined his application based on other factors.

The central legal issues addressed by the court revolved around whether the Tribunal properly exercised its discretion under section 56AD of the Building and Construction Industry (Registration of Contractors) Act 2005 (Qld). Specifically, the court examined if the Tribunal had correctly applied the statutory criteria and whether there was any error in the application of section 56AD in reaching its decision. The court also considered whether the Tribunal's reasons for its decision adequately captured the factors it considered in exercising its discretion.

In its judgment, the Court of Appeal found that the Tribunal had indeed erred in its application of section 56AD. The Tribunal's reasons did not fully encapsulate the relevant considerations that it had made in exercising its discretion, and thus, the court could not ascertain whether the Tribunal had properly applied the statutory criteria. As a result, the appeal was allowed on the first ground, and the Tribunal's decision was set aside. The court ordered that Mr Mudri's application to be reviewed and reconsidered by the Tribunal according to law and in light of the findings disclosed in the reasons for judgment.

Orders

Orders of the court

1. The appeal on Ground 1 is allowed and the decision of the Tribunal on 21 May 2014 is set aside.

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.