Tolliday v Queensland Building Services Authority - [2013] QCAT 546

CITATION:

Tolliday v Queensland Building Services Authority [2013] QCAT 546

PARTIES:	Bruce Andrew Tolliday (Applicant/Appellant)
v
Queensland Building services Authority (Respondent)

APPLICATION NUMBER:

OCR265-12

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

26 September 2013

HEARD AT:

Brisbane

DECISION OF:

Michelle Howard, Member

DELIVERED ON:

10 October 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the Queensland Building Services Authority dated 10 July 2012 which refused to categorise Mr Tolliday as a permitted individual is confirmed.

CATCHWORDS:

OCCUPATIONAL REGULATION-APPLICATION FOR CATEGORISATIONAS PERMITTED INDIVIDUAL- where applicant was bankrupt- whether he took all reasonable steps to avoid the happening of the circumstances that resulted in his bankruptcy- where applicant did not take appropriate legal and financial legal advice to protect his personal circumstances - where applicant gave personal guarantees for company liabilities without adequate assets to cover them

Queensland Building Services Authority Act 1991 s 56AD
Queensland Civil and Administrative Tribunal Act 2009 ss 20, 24

Younen v QBSA [2010] QDC 158, followed
QBSA v Meredith [2010] QCATA 50, cited
QBSA v Meredith [2013] QCATA 152, cited

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr Tolliday was represented by Ms Nadia O’Sullivan

RESPONDENT:

Queensland Building Services Authority was represented by Ms S Van Eyk, in-house legal officer

REASONS FOR DECISION

Mr Tolliday became an excluded individual in May 2007, following the liquidation of Living Design Homes Pty Ltd (LDH) of which he was a director. He has not held a Queensland Building Services Authority (QBSA) licence since his excluded individual status took effect.[1] In May 2013, he sought to regain his QBSA licence.
[1] This is a consequence of the effect of QBSA Act ss56AC and 56AE.
However, Mr Tolliday had become personally bankrupt on 19 October 2007. It was not until 5 June 2012, that QBSA advised Mr Tolliday that it considered him an excluded individual because of the bankruptcy event. He then applied unsuccessfully to the QBSA for permitted individual categorisation for the banktruptcy event. He now seeks review by the Tribunal of the QBSA’s decision to refuse to categorise him as a permitted individual for the relevant event.
I make the observation, since Mr Tolliday raised it in his submissions, that excluded individual status on two occasions results in a person becoming a permanently excluded individual.[2] However, the only matter for determination by me is whether he should be categorised as a permitted individual in respect of the bankruptcy event.
[2] QBSA Act s 58, 59.
At hearing, Mr Tolliday explained that Exhibit 4 was a consolidation of his earlier statements and that it also corrected some incorrect statements (some of which are discussed later) which appeared in his original application for categorisation provided to the QBSA. He impressed as a genuine person who gave his evidence according to his honest recollection. I accept his explanation for the earlier incorrect statements. I accept that his evidence, as corrected, is truthful.

The review process and the issues the Tribunal must consider

The purpose of the Tribunal’s review…

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 546
Decision Date

CaseChat Overview and Summary

The case of Tolliday v Queensland Building Services Authority involves an application by Bruce Andrew Tolliday seeking review of the Queensland Building Services Authority's (QBSA) decision to refuse to categorise him as a permitted individual. Mr Tolliday, a former director of Living Design Homes Pty Ltd (LDH), became an excluded individual in May 2007 following the liquidation of LDH and subsequently became personally bankrupt on 19 October 2007. The central issue is whether Mr Tolliday took all reasonable steps to avoid the circumstances that led to his bankruptcy, as required by the Queensland Building Services Authority Act 1991 (QBSA Act).

The primary legal issue revolves around the interpretation and application of section 56AD of the QBSA Act, which sets out the criteria for determining whether a person has taken all reasonable steps to avoid the circumstances leading to their exclusion. The Tribunal must consider factors such as whether the person kept proper financial records, sought appropriate legal and financial advice, ensured that guarantees were covered by sufficient assets, and made appropriate provisions for taxation debts. The decision hinges on whether Mr Tolliday satisfied these criteria in his business dealings and personal financial management.

The Tribunal found that Mr Tolliday did not keep adequate financial records and failed to seek appropriate legal and financial advice before entering into significant business arrangements. Notably, he gave personal guarantees to suppliers without ensuring that he had adequate assets to cover these liabilities. The Tribunal concluded that Mr Tolliday did not take all reasonable steps to avoid the circumstances that led to his bankruptcy. Consequently, the Tribunal upheld the QBSA's decision to refuse to categorise Mr Tolliday as a permitted individual. The decision of the QBSA was confirmed, and the Tribunal made orders to that effect.

Orders