Samimi v Queensland Building and Construction Commission
[2014] QCATA 120
•9 May 2014
| CITATION: | Samimi v Queensland Building and Construction Commission [2014] QCATA 120 |
| PARTIES: | Kamran Samimi (Applicant/Appellant) |
| v | |
| Queensland Building and Construction Commission (Respondent) |
| APPLICATION NUMBER: | APL431-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 24 April 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 9 May 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – OCCUPATIONAL REGULATION – QBCC – where controller appointed to land owned by licensee’s company – where controller removed one week later after negotiation with lender – whether licensee took reasonable steps to avoid appointment of controller – whether grounds for leave to appeal Queensland Building and Construction Commission Act 1991 (Qld) ss 56AC, 56AD Pickering v McArthur [2005] QCA 294 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | R Freeman of Counsel instructed by Peter Ryan Lawyers |
| RESPONDENT: | R J Anderson of Counsel, instructed by Robinson Locke Litigation Lawyers Pty Ltd |
REASONS FOR DECISION
In August 2011, the National Australia Bank appointed a controller to land owned by Music Corp Pty Ltd. Mr Samimi is a director of Music Corp. He is also a licensed builder. The appointment of a controller was an event under s 56AC(2) of the Queensland Building and Construction Commission Act 1991 (Qld) that made Mr Samimi an excluded individual.
Mr Samimi applied to be a permitted individual under s 56AD of the Act. The Authority (now Commission) refused his application. Mr Samimi applied to the tribunal for a review of that decision. The tribunal refused his application and confirmed the Commission’s decision.
Mr Samimi now wants to appeal that decision. He says that the learned Member made a finding – that Mr Samimi engaged in financial brinkmanship – that was not put to Mr Samimi in cross-examination. He says the learned Member failed to understand the basis on which a controller could be appointed to the company. He says the learned Member accepted the appointment as valid without any evidence that NAB was entitled to appoint a controller. He says the learned Member accepted evidence that Music Corp was in default when the evidence showed the contrary to be true. He says the learned Member did not understand the difference between cancellation of a loan facilities and taking action for default. Finally, Mr Samimi says that the learned Member erred in finding that he did not take reasonable steps to avoid the appointment of a controller when there was clear evidence to the contrary.
Because this is an appeal from a decision of the tribunal on mixed fact and law, leave is necessary. The principles the appeals tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as His Honour then was) in Pickering v McArthur[1]:
There are numerous authorities, in varying language but with unvarying emphasis, that leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.
[1][2005] QCA 294 at [3].
As I observed to Mr Freeman at the hearing of this application, Mr Samimi made many submissions without much evidence to support them. It is important to this application that I record what facts are supported by the evidence. In many cases, the only evidence is a rather vague assertion in a sworn affidavit from either Mr Samimi or Mr Freeman that something occurred. The dates, actors and precise details of those events are not recorded.
Background
The sole purpose of Music Corp was to buy and develop vacant land at Benowa. To do that, the company borrowed money from NAB. Mr Samimi had other finance facilities with NAB.
In April 2009, NAB advised Mr Samimi that it wanted to reduce its exposure. It asked him to refinance all his commitments with NAB.
Music Corp obtained an offer of refinance from Bank West. In July 2009, Bank West approached NAB to release Benowa. NAB refused to release Benowa unless Mr Samimi obtained a valuation to show that the balance of the finance facilities were adequately secured.
In early October 2009, NAB told Mr Samimi it would not release Benowa unless it received the full debt secured over the property. In mid October 2009, Mr Samimi provided a valuation for his home, over which much of his finance was secured. NAB formed the view that the home was not sufficient security to clear all debts if it allowed Mr Samimi to continue to use the overdraft and flexible mortgage securities. NAB offered to crystallise Mr Samimi’s debts. The effect of that offer was that Mr Samimi could not draw the funds needed to finish Benowa.
NAB confirmed its position by a letter to Mr Samimi’s then lawyers dated 13 November 2009. In that letter, it noted that Mr Samimi was in default of his facilities and gave notice of enforcement action to recover its the loans in full. On 30 November 2009, NAB cancelled all the finance facilities.
While Mr Samimi was engaged in correspondence with NAB, he spoke to Mr Freeman. Mr Freeman swears that he had a conversation with Mr Samimi in early 2009[2] but had a detailed conversation with Mr Samimi sometime later that year. In that conversation, Mr Freeman advised Mr Samimi to lodge a claim with the Financial Ombudsman.
[2]Affidavit sworn 22 July 2013, at [4].
Mr Samimi did complain to the Financial Ombudsman but the only evidence of when he did that is by implication. Mr Samimi swears that it took the Financial Ombudsman about a year to make a decision and that he received that decision about the middle of 2011[3].
[3]Affidavit sworn 18 April 2013, at [14].
On 22 August 2011, NAB appointed a controller over Benowa. About a week later, Mr Samimi paid off a substantial proportion of the debt and NAB removed the controller.
Financial brinkmanship
The learned member’s comments about financial brinkmanship relate only to the period from mid 2011 to the date the controller was appointed. The precise term was not put to Mr Samimi in cross examination but the concept –the practice of courting disaster, especially nuclear war, to gain one's ends[4] – was the topic of cross-examination:
- - That’s not what he says, if you don’t get a valuation, I’ll do this and I told them to get lost. You can’t do it. I don’t have to do the valuation and you can’t appoint a receiver because I’m not doing an evaluation, there was a discussion about this back then.[5]
- - That’s during the period that we went [indistinct] and we make no repayments for any of the loans that we have with the bank, for a year and a half. My position was to sue them for damages that they caused but we couldn’t of course [indistinct].[6]
If the banking Ombudsman is saying it’s within NAB’s legal rights to recall the loan, does that mean the loan was in default? - - That means at any point in time the bank…could knock on the door, and say give me my money back, it doesn’t matter whether you are in default or not, it doesn’t matter[7].
- - I didn’t make any payments at the time to NAB because I really thought that [indistinct] in default and I could actually sue them for the loss they’re causing me …[8]
…my decision was not to make any [indistinct] until I have to.[9]
…but at all times you had the capacity to pay any amount required if the determination did not go in your favour is that correct? - - That’s right[10]
…you’d always provisioned payment if required if needed during this time from 2009 to 2011. And you took precaution to make sure you had certain funds available to address any contingency that may occur, is that correct? - - Yes[11]
[4]Macquarie Dictionary Online
[5]Transcript page 21, lines 36-38.
[6]Transcript page 24, lines 21-24.
[7]Transcript page 27, lines 8-10.
[8]Transcript page 27, lines 20-23.
[9]Transcript page 27, lines 31-32.
[10]Transcript page 29, lines 29-30.
[11]Transcript page 31, lines 5-7.
Mr Samimi clearly indicated that he was holding back on any action until NAB took the first step. The learned Member was not required to put the specific term “financial brinkmanship” to Mr Samimi in order to find it. The evidence can support the learned Member’s findings and I see no compelling reason to come to a contrary view.
The appointment of the controller
The discretion that is available to the tribunal under s 56AD(8A) is to examine whether an individual took all reasonable steps to avoid the coming into existence of the relevant event. It is not the tribunal’s role, nor does it have jurisdiction, to examine the validity of the relevant event itself. That point was made in Raptis v Queensland Building Services Authority[12].
[12][2013] QCAT 279 at [19].
If Mr Samimi wanted to argue that NAB should not have appointed a controller, the tribunal was not the correct venue. The basis of the appointment, whether there was evidence to support the appointment and whether the company was in default are all irrelevant to the learned Member’s decision. She properly determined that her role was limited to considering whether Mr Samimi took reasonable steps to avoid the appointment.
Reasonable steps
The learned Member referred to Mr Samimi’s lack of evidence. She noted that the Authority did not have the benefit of Mr Freeman’s affidavit when it refused Mr Samimi’s application[13]. She noted the company’s inadequate financial records[14]. She noted there were no proper bank records[15] and Mr Samimi could not give evidence of his arrangement with the bank to shift money between linked accounts[16]. She found Mr Samimi had no evidence of his overall financial position[17].
[13]Samimi v Queensland Building Services Authority [2013] QCAT 472 at [16].
[14]Supra at [24].
[15]Supra at [27].
[16]Supra at [28].
[17]Supra at [29].
The best case for Mr Samimi is that articulated by Mr Freeman at the hearing before me: what steps can a person take to prevent an action without notice? The learned Member was alert to that issue. She noted[18] that Mr Samimi was aware the ombudsman supported NAB’s position and it had forestalled action on its security for 18 months. The learned Member further noted that a further two months elapsed between the ombudsman’s advice and the date NAB took action. Mr Samimi has provided no evidence of what he did in that period.
[18]Supra at [19], [20].
As Mr Andrews observed, the evidence before the tribunal was, and is, scant. Mr Samimi had the onus of proving he took reasonable steps. He did not satisfy that onus before the learned Member. Nothing in his submissions causes me to come to a different view.
There is no reasonably arguable case that the learned Member was in error. Leave to appeal should be refused.
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