Queensland Building and Construction Commission v Vadasz - [2014] QCATA 1

CITATION:

Queensland Building and Construction Commission v Vadasz [2014] QCATA 001

PARTIES:	Queensland Building and Construction Commission (Applicant/Appellant)
v
Michael Christopher Vadasz (Respondent)

APPLICATION NUMBER:

APL127-13

MATTER TYPE:

Appeals

HEARING DATE:

4 November 2013

HEARD AT:

Brisbane

DECISION OF:

Senior Member Oliver
Dr Cullen, Member

DELIVERED ON:

10 January 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

The decision of the Tribunal dated 20 February is set aside.1.

The applicant’s decision refusing to categorise the respondent as a permitted individual is confirmed.2.

CATCHWORDS:

Occupational Regulation – where the applicant refused to categorise the respondent as a permitted individual so he could retain his builders license – where Tribunal must consider the matters referred to in section 56AD(8) and section 56AD(8A) of the Queensland Building and Construction Act – whether the evidence established that the respondent made any provision or appropriate provision for Commonwealth or State taxation debts – where a consideration of the meaning or “provision” – where error of mixed fact and law – where evidence of “provision” inadequate in the circumstances.

Queensland Civil and Administrative Tribunal Act 2009 s 142
Queensland Building Services Authority Act 1991 ss 56AD(8) and 56AD(8)(A)

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

Hyndman v Queensland Building Services Authority [2009] QCCTB 240

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

represented by Ms Heyworth-Smith of counsel instructed by Robinson Locke, Lawyers

RESPONDENT:

represented by Mr Wilson of CCS Legal, Lawyers

REASONS FOR DECISION

On 20 February 2013 the Tribunal made orders setting aside a decision of the former Queensland Building Services Authority, now the Queensland Building and Construction Commission, refusing to categorise Mr Vadasz as a permitted individual pursuant to section 56AD of the then Queensland Building Services Authority Act and ordered that he be categorised as a permitted individual. The effect of this decision meant that Mr Vadasz could keep his licence as a registered builder.

On 22 March 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 have proper regard to the requirements of sections 56AD(8) and (8A) of the Queensland Building Services Commission Act in deciding that Mr Vadasz ‘took all reasonable steps to avoid the coming into existence of the circumstances that resulted in the happening of the relevant event’, and that he made proper provision for Commonwealth and State taxation debts. The relevant event was the making of a sequestration order against Mr Vadasz on 7 December 2010.

Background

Mr Vadasz owned and operated a specialist pile driving business as a sole trader, known as Australian Piling Company, for many years. The business was very profitable and generated significant gross income for Mr Vadasz. A summary of the financial position of the business in the years preceding Mr Vadasz’s bankruptcy is as follows:

2005 financial year: there…

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 1
Decision Date: 10 January 2014

CaseChat Overview and Summary

The Queensland Building and Construction Commission brought proceedings against Vadasz, challenging the Tribunal’s decision to confirm the Commission’s refusal to categorise Vadasz as a permitted individual, which was a necessary step for him to retain his builders’ license. The basis of the refusal was Vadasz's inability to demonstrate "provision" for Commonwealth or State taxation debts, as required by the Queensland Building and Construction Act. The Court of Appeal was tasked with determining whether the Tribunal’s decision was legally sound, specifically considering whether the evidence presented adequately demonstrated that Vadasz had made appropriate provision for his taxation debts.

The legal issue at the heart of the appeal was whether the Tribunal correctly applied the statutory criteria when deciding that Vadasz had not made adequate provision for his taxation debts. The court examined the meaning of "provision" as outlined in the Act, and whether the evidence submitted to the Tribunal was sufficient to support a finding that Vadasz had made such provision. The Court of Appeal also assessed whether the Tribunal had correctly identified and considered all relevant matters, as required by sections 56AD(8) and 56AD(8A) of the Act.

The Court of Appeal found that the Tribunal had erred in its application of the statutory criteria. The Tribunal had made an error by mixing factual findings with legal conclusions, leading to an incorrect application of the law. Specifically, the Tribunal did not sufficiently consider the evidence regarding Vadasz’s arrangements with the Australian Taxation Office, which were relevant to the determination of "provision." The court concluded that the evidence provided was inadequate to establish that Vadasz had made appropriate provision for his taxation debts, as required by the Act. Therefore, the Tribunal’s decision was flawed and required correction.

The Court of Appeal set aside the Tribunal’s decision and confirmed the Commission’s decision not to categorise Vadasz as a permitted individual. This outcome means that Vadasz cannot retain his builders’ license unless he satisfies the statutory requirements for making appropriate provision for his taxation debts.

Orders

Orders of the court

The decision of the Tribunal dated 20 February is set aside.1.

The applicant’s decision refusing to categorise the respondent as a permitted individual is confirmed.2.

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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