Van Houdt v Queensland Building and Construction Commission - [2017] QCATA 116

CITATION:	Van Houdt v Queensland Building and Construction Commission [2017] QCATA 116
PARTIES:	Luke Van Houdt (Applicant/Appellant)
v
Queensland Building and Construction Commission (Respondent)
APPLICATION NUMBER:	APL154-17
MATTER TYPE:	Appeals
HEARING DATE:	4 October 2017
HEARD AT:	Brisbane
DECISION OF:	Senior Member O’Callaghan Member Olding
DELIVERED ON:	27 October 2017
DELIVERED AT:	Brisbane
ORDERS MADE:	1. Leave to appeal on the Applicant’s grounds 2-4 is refused. 2. The Appeal is allowed. 3. The decision of the Tribunal confirming the decision of the Queensland Building and Construction Commission to refuse to categorise the Applicant as a “permitted individual” is set aside. 4. The matter is returned to the Tribunal for reconsideration with the hearing of additional evidence relevant to when the tax debt of Assured Builders Pty Ltd accrued and any payments were made to discharge the debt. 5. Each party must file in the Tribunal two (2) copies and give to the other party one (1) copy of a statement of evidence it intends to rely upon in relation to when the relevant tax debt accrued, by: forty-five (45) days after the date on which this decision is delivered.
CATCHWORDS:	PROFESSIONS AND TRADES – BUILDERS – LICENCES AND REGISTRATION – OTHER MATTERS – where applicant an “excluded individual for a relevant event” – where applicant applied to be categorised as a “permitted individual” – whether applicant took all reasonable steps to avoid company going into liquidation – where applicant unaware of statutory demand and application for winding up by tax authority – where evidence of tax debt but not period over which it accrued Queensland Building and Construction Commission Act 1991 (Qld), s 56AC, s 56AD Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142 Ericson v Queensland Building Services Authority [2013] QCA 391 Haritos v Commissioner of Taxation (2015) 233 FCR 315 Harrison v Meehan [2016] QCATA 197 Queensland Building and Construction Commission v Meredith [2014] QCA 62 RCW Plumbing & Excavations v Camporeale Holdings Pty Ltd [2017] QCATA 48
APPEARANCES:
APPLICANT:	Luke Van Houdt
RESPONDENT:	Queensland Building and Construction Commission
REPRESENTATIVES:
APPLICANT:	Unrepresented
RESPONDENT:	represented by Mr M Robinson of Robinson Locke Litigation Lawyers

REASONS FOR DECISION

As a consequence of Mr Van Houdt being a director of Assured Builders Pty Ltd (the Company) at the time of the appointment of a liquidator to the Company, he is an “excluded individual for a relevant event” under the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act).[1]
[1]Section 56AC. All references to the QBCC Act are to that Act prior to the amendments that took effect from 1 July 2015. The provisions being considered in the application for review continue for applications made before that date: Schedule 1, s 58.
Mr Van Houdt applied to the Queensland Building and Construction Commission (the Commission) to be categorised as a “permitted individual”. Having concluded that he did not take “all reasonable steps” to avoid the appointment of the liquidator – which at the relevant time was a requirement to…

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: [2017] QCATA 116
Decision Date: 27 October 2017

CaseChat Overview and Summary

The case of Van Houdt v Queensland Building and Construction Commission involved the applicant, who was deemed an "excluded individual for a relevant event," applying to be categorised as a "permitted individual." The dispute centred on whether the applicant had taken all reasonable steps to avoid the company, Assured Builders Pty Ltd, going into liquidation. The applicant contended that they were unaware of the statutory demand and the application for winding up by the tax authority, which led to the company's liquidation. The Queensland Building and Construction Commission, through the Tribunal, upheld the decision to refuse the applicant's application. This decision was subsequently appealed to the court.

The court was tasked with determining whether the Tribunal's decision was legally sound, particularly in light of the applicant's lack of awareness of the statutory demand and the winding-up application. A critical issue was whether the applicant had taken all reasonable steps to avoid the company's liquidation, given their unawareness of the tax debt and the period over which it accrued. The court also needed to assess whether the evidence provided was sufficient to establish when the tax debt accrued and any payments made to discharge the debt.

The court found that the Tribunal had not adequately considered the applicant's lack of awareness of the statutory demand and the application for winding up by the tax authority. The court held that the Tribunal should have explored this aspect more thoroughly, given its potential impact on the applicant's ability to take reasonable steps to avoid the company's liquidation. Additionally, the court noted that the evidence regarding the period over which the tax debt accrued and any payments made to discharge the debt was incomplete. The court concluded that the Tribunal needed to reconsider the matter with additional evidence on these points.

The court allowed the appeal, set aside the Tribunal's decision, and returned the matter to the Tribunal for reconsideration. The parties were directed to file and exchange statements of evidence regarding when the relevant tax debt accrued, within forty-five days of the court's decision. This would ensure that the Tribunal had a complete picture of the circumstances surrounding the company's liquidation when it reconsidered the matter.

Orders

Orders of the court

1. Leave to appeal on the Applicant’s grounds 2-4 is refused.

2. The Appeal is allowed.

3. The decision of the Tribunal confirming the decision of the Queensland Building and Construction Commission to refuse to categorise the Applicant as a “permitted individual” is set aside.

4. The matter is returned to the Tribunal for reconsideration with the hearing of additional evidence relevant to when the tax debt of Assured Builders Pty Ltd accrued and any payments were made to discharge the debt.

5. Each party must file in the Tribunal two (2) copies and give to the other party one (1) copy of a statement of evidence it intends to rely upon in relation to when the relevant tax debt accrued, by: forty-five (45) days after the date on which this decision is delivered.

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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