Vadasz v Queensland Building Services Authority - [2013] QCAT 84

CITATION:

Vadasz v Queensland Building Services Authority [2013] QCAT 84

PARTIES:	Michael Christopher Vadasz t/a Australasian Piling Company (Applicant)
v
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER:

OCR044-12 / OCR087-12

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

8 February 2013

HEARD AT:

Brisbane

DECISION OF:

David Paratz, Member

DELIVERED ON:

14 February 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the Queensland Building Services Authority made on 22 November 2011 to refuse to categorise Mr Michael Christopher Vadasz as a “permitted individual” pursuant to s 56AD of the Queensland Building Services Authority Act 1991 is set aside.

2. I order that Mr Michael Christopher Vadasz be categorised as a “permitted individual” pursuant to s 56AD of the Queensland Building Services Authority Act 1991.

3. The stay of the decision of the Queensland Building Services Authority to cancel the license of Mr Michael Christopher Vadasz made on 20 January 2012, made by the Tribunal on 7 December is lifted.

4. The decision of the Queensland Building Services Authority to cancel the license of Mr Michael Christopher Vadasz made on 20 January 2012 is set aside.

5. Either party has leave to apply to the Tribunal for further or other orders necessary to give effect to my decision in this matter.

CATCHWORDS:

PERMITTED INDIVIDUAL – pile driver contractor – personal Bankruptcy – all reasonable steps taken to avoid the circumstances – effect of global financial crisis – financier selling equipment – discretion of Queensland Building Services Authority

Queensland Building Services Authority Act 1991, ss 56AD, 56AD(8), 56AD(8A)
Queensland Civil and Administrative Tribunal Act 2009, s 20

Younan v Queensland Building Services Authority [2011] QCA 1

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Self represented

RESPONDENT:

Queensland Building Services Authority represented by Mr Malcolm Robinson of Robinson Locke Litigation Lawyers Pty Ltd

REASONS FOR DECISION

This is essentially an application by Mr Vadasz to be declared as a “permitted individual” under s 56AD of the Queensland Building Services Authority Act 1991 (the Act).
There are two applications in this matter that were heard together.
OCR044-12 is the principal application for a review of the decision of the Authority to refuse to declare Mr Vadasz as a permitted individual, which was filed on 6 February 2012. Mr Vadasz was granted an extension of time by the Tribunal to make that application on 8 March 2012.
An attempt had been previously made in December 2011 by Mr Vadasz to apply to this Tribunal to have the permitted individual decision reviewed, but that application was mislaid somewhere between Australia Post and the Registry, and was never filed. As a result, the Authority proceeded to cancel his licence in the absence of a review application.
OCR 087-12 relates to the decision of the Authority to cancel the licence of Mr Vadasz under the Act. On 7 December 2012, the Tribunal granted a stay of that decision.
The two applications follow each another. If the “permitted individual” application succeeds, then entitlement to a licence…

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 84
Decision Date

CaseChat Overview and Summary

The Queensland Civil and Administrative Tribunal (QCAT) was asked to review the Queensland Building Services Authority's (QBSA) decision to refuse Michael Christopher Vadasz's application to be categorised as a "permitted individual" under the Queensland Building Services Authority Act 1991. Vadasz, a 60-year-old experienced pile driver contractor, had filed for bankruptcy on 7 December 2010. The QBSA's refusal was based on Vadasz's personal bankruptcy, which was considered a "relevant event" under the Act. Vadasz argued that he had taken all reasonable steps to avoid the circumstances leading to his bankruptcy, including engaging in litigation, negotiating lease payments, selling personal assets, and seeking financial advice. The QBSA argued that Vadasz's business was fundamentally undercapitalised and that he did not take all reasonable steps to avoid bankruptcy.

The Tribunal considered the evidence and submissions presented by both parties. Vadasz demonstrated that he had a history of successful business operations, sought legal and financial advice, and took reasonable steps to manage his business's financial challenges. The Tribunal found that Vadasz's bankruptcy was largely due to external factors, such as the global financial crisis and the sale of his specialised machinery by his financier. The Tribunal concluded that Vadasz had taken all reasonable steps to avoid the circumstances leading to his bankruptcy and exercised its discretion under the Act to categorise him as a "permitted individual." The Tribunal set aside the QBSA's decision to refuse Vadasz's application and to cancel his licence, and lifted the stay on the cancellation decision. The Tribunal ordered that Vadasz be categorised as a "permitted individual" and that either party could apply for further orders to give effect to the Tribunal's decision.

Orders