Spasevski v Queensland Building Services Authority - [2010] QCAT 121

CITATION:Spasevski v Queensland Building Services Authority [2010] QCAT 121

PARTIES: LJUBE SPASEVSKI
V

QUEENSLAND BUILDING SERVICES AUTHORITY

APPLICATION NUMBER: QR083-09

MATTER TYPE: General administrative review matters

HEARING DATE: 22 & 23 March 2010

HEARD AT: Brisbane

DECISION OF: S W Sheaffe

DELIVERED ON: 16 April 2010

DELIVERED AT: Brisbane

ORDERS MADE: The decision of the respondent dated 11 March 2009 refusing to categorise the applicant as a permitted individual is confirmed

CATCHWORDS: an application to categorize as a permitted individual and failure to make provision for taxation.

APPEARANCES and REPRESENTATION:

Mr K C Kelso (counsel) for the applicant Mr Robinson (solicitor) for the respondent

REASONS FOR DECISION

Introduction

Ljube Spasevski (“the applicant”) seeks an order to set aside the decision of the Queensland Building Services Authority (the respondent) refusing to categorise him as a permitted individual.

This application is made pursuant to section 56AD of the Queensland Building Services Authority Act (“the Act”) and Chapter 2, Part 1, Division 3 of the Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”).

The Tribunal has power pursuant to section 24 of the QCAT Act to confirm, set aside or substitute another decision and set aside the decision and return the matter to the state agency with such directions as the Tribunal considers appropriate,

Background

The applicant was a director of a building company, Diamond Homes and Marble Importers Pty Ltd (“Diamond Homes”) and was the holder of a builders licence.

On the 25 January 2008 an administrator was appointed to Diamond Homes and by order of the Federal Court on the 29 February 2008 the company went into liquidation and Mitchell Ball was the appointed liquidator. It was not disputed that the appointment of the administrator was the relevant company event as defined in section 56AC (2) of the Act

On the 10 November 2008 the applicant was informed by the respondent that he was classified as an excluded individual pursuant to section 56AC (2) & (4) of the Act.

On the 8 December 2008 the applicant applied to the respondent pursuant to section 56AD (1) of the Act that he be characterised as a permitted individual for the relevant company event.

On the 12 March 2009 the applicant received a copy of the respondent’s decision to refuse to categorize him as a permitted individual.

The test to be applied is that set out in section 56AD (8) & (8A), that is, whether the applicant took all reasonable steps to avoid the coming into existence of the circumstances that resulted in the administrators being appointed to Diamond Homes. It is clear the test is not the taking of steps to avoid the administrator being appointed but rather whether reasonable steps were taken to avoid the circumstances that resulted in the administrator being appointed.

Relevant legislation

10. The Act expressly provides, so far as relevant:

Section 56 AD of the QBSA Act provides:
(1)An individual may apply to the authority, in the form approved by the Board, to be…

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: [2010] QCAT 121
Decision Date: 16 April 2010

CaseChat Overview and Summary

Ljute Spasevski sought to challenge the Queensland Building Services Authority’s decision to refuse his application to be categorised as a permitted individual. The applicant argued that he had taken all reasonable steps to avoid the coming into existence of the circumstances that resulted in the administrators being appointed to Diamond Homes. The respondent argued that the applicant had failed to take reasonable steps to avoid the circumstances that resulted in the happening of the event. The legal issue was whether the applicant took all reasonable steps to avoid the coming into existence of the circumstances that resulted in the happening of the relevant event. The Tribunal found that the applicant had failed to take all reasonable steps to avoid the coming into existence of the circumstances that resulted in the happening of the relevant event. The Tribunal found that the applicant was well aware of the businesses cash needs, as he regularly borrowed money and was also well aware that the company was required to pay GST, PAYG and income tax at approximately 30%. The applicant was prepared to spend money on new cars and overseas travel but did not make any provision for future taxation. The Tribunal found that the applicant did not make any or sufficient provision for taxation during the relevant time. This was a decisive factor in this case. The decision of the respondent dated 11 March 2009 refusing to categorise the applicant as a permitted individual was confirmed.

Orders