Stevens v Queensland Building Services Authority - [2013] QCAT 424

CITATION:

Stevens v Queensland Building Services Authority [2013] QCAT 424

PARTIES:	Brent Leslie Stevens (Applicant)
V
Queensland Building Services Authority (Respondent)

APPLICATION NUMBERS:

GAR305-11
OCR129-12

MATTER TYPE:

General administrative review matters

HEARING DATE:

28 March 2013

HEARD AT:

Brisbane

DECISION OF:

Andrew McLean Williams, Member

DELIVERED ON:

7 August 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Respondent’s decision not to categorise the Applicant as a permitted individual is confirmed.

CATCHWORDS :

REVIEW - Becoming a “permitted individual” after a relevant company event/individual bankruptcy event - Requirement for satisfaction that the applicant took all reasonable steps to avoid the coming into existence of the circumstances that resulted in the happening of the relevant event.

Queensland Building Services Authority Act ss 56AC, 56AD

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	The Applicant, in person
RESPONDENT:	Ms Jodie Stroud, in-house counsel

REASONS FOR DECISION

QCAT matters OCR129-12 and GAR305-11 although separate matters, were heard together, given that they each emanate out of closely related events. Each matter arises out of the financial demise of the applicant’s building company, B Stevens Builder Pty Ltd. Each application involves an application to review a decision by the respondent Queensland Building Services Authority, and is brought before QCAT as a reviewable decision, pursuant to ss 86 and 87 of the Queensland Building Services Authority Act 1991 (the QBSA Act).

On 12 September 2011, the respondent rejected Mr Stevens’ application to be categorised as a permitted individual after the appointment of liquidators to his company, B Stevens Builder Pty Ltd (‘the relevant company event’) meant that he was declared to be an excluded individual. An application to review that decision has now found its way to QCAT as matter GAR305-11. Later, on 19 March 2012, the respondent also rejected the applicant’s further application to be categorised as a permitted individual, this time due to his having been declared personally bankrupt, which occurred on 15 February 2012 (‘the relevant individual event’). The applicant’s personal bankruptcy happened as a ‘down-stream’ consequence of the company liquidation given that various personal guarantees had been given by Mr Stevens, as security for various liabilities incurred by his trading company. The application to review that decision has found its way to QCAT as application OCR129-12.

The Law

The relevant provisions are to be found in Part 3A of the QBSA Act.

Section 56AC(1) and section 56AC(2) provide that an individual who takes advantage of the laws of bankruptcy or becomes bankrupt (a ‘relevant bankruptcy event’); or a director or secretary or other influential person for a company that has a provisional liquidator, liquidator, administrator or controller appointed; or that is wound up, or ordered to be wound up (each of which is termed in section 56AC(2) to be a “relevant company event”), thereby becomes - by reason of the operation of ss 56AC(3) & 56AC(4) - an excluded individual, for a period of five years after the occurrence of that relevant event.

The practical effect of becoming so categorised is that the excluded…

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: [2013] QCAT 424
Decision Date

CaseChat Overview and Summary

Stevens v Queensland Building Services Authority involved an application by Brent Leslie Stevens to review the respondent’s decision not to categorise him as a permitted individual after the relevant company and individual bankruptcy events. The Queensland Building Services Authority (QBSA) had decided that Mr Stevens was ineligible to hold a QBSA licence for five years following the liquidation of his company and his personal bankruptcy. The matter was brought before the Queensland Civil and Administrative Tribunal (QCAT) pursuant to ss 86 and 87 of the Queensland Building Services Authority Act 1991. The legal issues were whether Mr Stevens took all reasonable steps to avoid the circumstances that resulted in the relevant events, and whether the QBSA's decision should be confirmed.

The QBSA Act provided that an individual who becomes bankrupt or a director or secretary of a company that is wound up or placed under a provisional liquidator, liquidator, administrator or controller is ineligible to hold a QBSA licence for five years. However, s 56AD of the Act allowed for an excluded individual to apply to be categorised as a permitted individual if certain criteria were met. The QBSA was required to be satisfied, based on the application, that the individual took all reasonable steps to avoid the circumstances that led to the relevant event. Mr Stevens had to demonstrate that he took reasonable steps such as keeping proper books of account, seeking appropriate financial or legal advice, ensuring guarantees were covered by sufficient assets, putting in place appropriate credit management, and making appropriate provision for taxation debts.

After reviewing the evidence, QCAT found that Mr Stevens had not provided sufficient information to demonstrate that he took all reasonable steps to avoid the circumstances that resulted in the relevant events. The evidence showed that he had not kept proper books of account, obtained appropriate financial or legal advice, ensured his guarantees were covered by sufficient assets, put in place appropriate credit management, or made appropriate provision for taxation debts. Therefore, QCAT was not satisfied that Mr Stevens had met the criteria in s 56AD(8A) and the QBSA's decision not to categorise him as a permitted individual was confirmed.

The final orders were that the QBSA's decision not to categorise the Applicant as a permitted individual was confirmed.

Orders