Vuu v QBSA - [2010] QCAT 335

CITATION:

Vuu v Queensland Building Services Authority [2010] QCAT 335

PARTIES:	Hong T (Michael) Vuu
v
Queensland Building Services Authority

APPLICATION NUMBER:

QR184-09

MATTER TYPE:

General administrative review matters

HEARING DATE:

1 April 2010

HEARD AT:

Brisbane

DECISION OF:

M Howard

DELIVERED ON:

30 June 2010

DELIVERED AT:

Brisbane

ORDERS MADE:

The reviewable decision to refuse to categorise the Applicant as a permitted individual is confirmed.

CATCHWORDS :

PERMITTED INDIVIDUAL-Whether applicant took all reasonable steps to avoid the coming into existence of the circumstances leading to the relevant event -Queensland Building Services Authority Act 1991 s56AD

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Hong T (Michael) Vuu represented by Mr Jonathon Hitchcock, Rudkin Hitchcock Lawyers
RESPONDENT:	Queensland Building Services Authority represented by Mr Malcolm Robinson, Forbes Dowling Lawyers, instructed by Ms Natasha Dennis, Queensland Building Services Authority

REASONS FOR DECISION

The applicant was a director of Archicad Design Pty Ltd (the Company or Archicad) when it was placed in liquidation on 15 April 2009 on the application of Queensland Sheet Metal Roofing. The Queensland Building Services Authority (QBSA or the Authority) notified the applicant that it considered him to be an excluded individual for a relevant company event, that is, the appointment of liquidators of Archicad for the benefit of a creditor while the applicant was a director.

An excluded individual may apply to the QBSA to be categorised as a permitted individual for the relevant event.

The applicant made application to the QBSA seeking to be categorised as a permitted individual. His application was refused. He filed an application to review the decision of the QBSA in the Commercial and Consumer Tribunal (CCT).

Applicable Law

On 1 December 2009, the CCT was abolished and the Queensland Civil and Administrative Tribunal (QCAT) became responsible for dealing with the matter. By virtue of the transitional provisions of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act), for this purpose QCAT has the powers and functions of the former tribunal. The decision reviewed is a reviewable decision for applying the QCAT Act to the proceeding.

The CCT’s functions and powers were set out in Part 6 of the Commercial and Consumer Tribunal Act 2003, especially sections 101 and 104. The CCT was empowered to review a decision under an empowering Act, in this case the Queensland Building Services Authority Act 1991 ( the QBSA Act), and in deciding the review was empowered to confirm the decision; set the decision aside and substitute another decision within QBSA powers; or set the decision aside and return the matter to the QBSA with directions. The accepted function of the CCT, and its predecessors, when reviewing such a decision was to conduct a fresh hearing on the merits,[1] in effect, standing in the shoes of the decision-maker. The CCT considered it was entitled to have regard to all of the evidence available to it.[2] I accept this as the correct approach.
[1] R v Gaffney, Ex parte Builders registration Board of Queensland [1987]…

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: [2010] QCAT 335
Decision Date: 30 June 2010

CaseChat Overview and Summary

The case of Vuu v QBSA involved an applicant who sought to be categorised as a permitted individual under the Queensland Building Services Authority Act 1991. The applicant contested the decision of the Queensland Building Services Authority to refuse this categorisation, arguing that they had taken all reasonable steps to avoid the circumstances that led to the relevant event. The dispute was heard in the Queensland Civil and Administrative Tribunal.

The central legal issue before the Tribunal was whether the applicant had indeed taken all reasonable steps to prevent the coming into existence of the circumstances that led to the relevant event, as required by section 56AD of the Act. This required an analysis of the applicant's conduct and the specific circumstances that triggered the relevant event, as well as an evaluation of what could reasonably be expected of the applicant in those circumstances.

In its decision, the Tribunal examined the evidence and submissions from both parties. It found that the applicant had not taken all reasonable steps to avoid the circumstances that led to the relevant event. The Tribunal concluded that the applicant's actions did not meet the standard required by section 56AD of the Act, and therefore, the decision to refuse categorisation as a permitted individual was upheld. The Tribunal confirmed the reviewable decision of the Queensland Building Services Authority.

The final order of the Tribunal was to confirm the decision of the Queensland Building Services Authority to refuse the applicant's categorisation as a permitted individual. This decision stands as a reminder of the importance of taking reasonable steps to avoid circumstances that could lead to regulatory non-compliance.

Orders

Orders of the court

The reviewable decision to refuse to categorise the Applicant 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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