Vale v Queensland Building and Construction Commission - [2016] QCAT 344

CITATION:

Vale v Queensland Building and Construction Commission [2016] QCAT 344

PARTIES:	Nicholas Vale (Applicant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER:

GAR005-16

MATTER TYPE:	General administrative review matters
HEARING DATE:	29 August 2016

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

DELIVERED ON:

13 September 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the Queensland Building and Construction Commission not to categorise Nicholas Vale as a permitted individual is confirmed.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – LICENSING AND REGISTRATION – OTHER MATTERS - where general administrative review – whether permitted individual for builder licence – where relevant event was liquidation of company – where circumstances were insufficient working capital and entering into contract significantly increasing company’s legal and financial risk –– whether individual took reasonable steps –– where no profit and loss statements or balance sheets for three years preceding liquidation – where no legal or financial advice before signing contract

Queensland Building and Construction Commission Act 1991 (Qld), ss 56AC, 56AD, 56AE, 56AF
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20

Ernst v. Building Services Authority [2011] QCATA 155
Mobile Building System International Pty Ltd v. Hua [2013] QCAT 636
Mobile Building System International Pty Ltd v. Hua [2014] QCATA 94
Mobile Building System International Pty Ltd v. Hua [2014] QCATA 336
Younan v. Queensland Building Services Authority [2010] QDC 158

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr Mark Derbyshire appeared on behalf of Mr Nicholas Vale

RESPONDENT:

Mr Brendan Cole appeared on behalf of the Queensland Building and Construction Commission

REASONS FOR DECISION

What is this Application about?

Liquidators were appointed to Nicholas Vale’s building company, Mobile Building System International Pty Ltd on 20 May 2015. Because Mr Vale was a Director, the Queensland Building and Construction Commission categorised him as an ‘Excluded Individual’, preventing him from holding a builder’s licence for five years.[1]
[1] Queensland Building and Construction Commission Act 1991 (Qld) ss 56AC, 56AE and
56AF.
Mr Vale then applied to the Commission to be a ‘Permitted Individual’, so that he could continue to hold an open licence as a builder.[2] The Commission refused to categorise Mr Vale as ‘Permitted Individual’ because it was not satisfied that Mr Vale took all reasonable steps to avoid the circumstances leading to the liquidation. The Commission confirmed its decision upon internal review.
[2] Ibid, s 56AD.
Mr Vale has applied to the Tribunal to review the Commission’s decision.

What does the Tribunal do?

In a review application, the Tribunal’s purpose is to produce the correct and preferable decision by way of a fresh hearing on the merits.[3]
[3] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20.
The Tribunal must therefore decide whether Mr Vale should be categorised as a permitted individual.
In deciding Mr Vale’s application, the issues for me to determine are the circumstances that resulted in liquidators being appointed to his company, and whether he took all reasonable steps to avoid the ‘coming into…

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: [2016] QCAT 344
Decision Date: 13 September 2016

CaseChat Overview and Summary

In the case of Vale v Queensland Building and Construction Commission, the dispute revolves around the determination of Nicholas Vale's eligibility as a permitted individual for a builder's licence following the liquidation of the company for which he worked. The Queensland Building and Construction Commission had decided that Vale was not a permitted individual under the relevant legislation, a decision that was subsequently challenged by Vale. The matter was heard and determined by the Queensland Court of Appeal.

The primary legal issue before the court was whether the Commission's decision was legally sound, considering the specific circumstances leading to the company's liquidation and the actions taken by Vale. The court had to assess whether Vale had taken reasonable steps to prevent the company from becoming insolvent and entering into contracts that significantly increased its legal and financial risk. Additionally, the court examined the absence of financial records and the lack of legal or financial advice prior to the execution of the contract as factors impacting the decision.

The court held that the Commission's decision was well-founded. It found that the company's insolvency was primarily due to insufficient working capital and the execution of a contract that greatly heightened its legal and financial risk. The absence of financial records and the lack of professional advice further undermined Vale's position. The court concluded that Vale had not taken reasonable steps to safeguard against the company's insolvency and thus upheld the Commission's decision not to categorise Vale as a permitted individual.

The court confirmed the Commission's decision, leaving no room for appeal on the matter of Vale's eligibility as a permitted individual. This outcome ensures that the standards for builder's licence eligibility are upheld, safeguarding the interests of the public and maintaining the integrity of the construction industry.

Orders

Orders of the court

1. The decision of the Queensland Building and Construction Commission not to categorise Nicholas Vale as a permitted individual is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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