Walker v Queensland Building and Construction Commission - [2014] QCAT 228

CITATION:

Walker v Queensland Building and Construction Commission [2014] QCAT 228

PARTIES:	Alan Walker (Applicant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER:

OCR156-13 / GAR187-13 / GAR188-12

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

3 February 2014

HEARD AT:

Brisbane

DECISION OF:

Dr Cullen, Member

DELIVERED ON:

26 May 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The 8 May 2013 decision of the Respondent that the Applicant is an Excluded Individual as the result of the appointment of liquidators to Grantigard is set aside.

2. The 8 May 2013 decision of the Respondent that the Enviropest (Sunshine Coast) Pty Ltd and Enviropest (Qld) Pty Ltd are excluded companies is set aside.

CATCHWORDS:

APPLICATION FOR REVIEW – OCCUPATIONAL REGULATION – BUILDING - EXCLUDED INDIVIDUAL – was general manager an influential person.

Queensland Building and Construction Commission Act 1991 (Qld), s 56AC, s 56AF, Schedule 2

Laidlaw v Queensland Building Services Authority [2010] QCAT 70; cited
Buckley v Queensland Building Services Authority [2013] QCAT 469
McDonald v Queensland Building and Construction Commission [2013 QCAT 702

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Simon Taylor of counsel instructed by Mardee Campbell solicitor of Crouch & Lyndon Pty Ltd

RESPONDENT:

Malcolm Robinson of Robinson Locke Litigation Lawyers

REASONS FOR DECISION

The sole issue for determination by the Tribunal in this matter is whether the respondent, the Queensland Building and Construction Commission, correctly determined that the applicant, Mr Alan Walker, is an excluded individual pursuant to s 56AF of the Queensland Building Service Act 1991 (Qld) (as it was then). On 8 May 2013, the Commission determined that Mr Walker was an excluded individual following the appointment of liquidators to Granitgard Pty Ltd on the 25 October 2011.
It is the Commission’s position that Mr Walker, who was given the title of ‘General Manager’ was an influential person, which in turn triggers application of s 56AC.
Section 56AC of the Act provides:
(2)This section also applies to an individual if—
(a)after the commencement of this section, a company, for the benefit of a creditor—
(i)has a provisional liquidator, liquidator, administrator or controller appointed; or
(ii)is wound up, or is ordered to be wound up; and
(b)5 years have not elapsed since the event mentioned in paragraph (a)(i) or (ii) (relevant company event) happened; and
(c)the individual—
(i)was, when the relevant company event happened, a director or secretary of, or an influential person for, the company; or
(ii)was, at any time after the commencement of this section and within the period of 1 year immediately before the relevant company event happened, a director or secretary of, or an influential person for, the company.
(3)If this section applies to an individual because of subsection (1), the individual is an excluded individual for the relevant bankruptcy event.
(4)If this section applies to an individual because of subsection (2), the individual is an excluded individual for the relevant company event.
Section 56AF of the Act provides:
(1)This section applies if the commission considers…

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: [2014] QCAT 228
Decision Date

CaseChat Overview and Summary

In the matter of Walker v Queensland Building and Construction Commission, the Queensland Civil and Administrative Tribunal (QCAT) was tasked with reviewing a decision by the Queensland Building and Construction Commission (Commission) that Alan Walker (Applicant) was an excluded individual under the Queensland Building and Construction Commission Act 1991 (Qld). The central legal issue was whether the Commission's determination that Walker was an influential person for Granitgard Pty Ltd was correct, thereby classifying him as an excluded individual.

The Tribunal examined whether Walker, as the General Manager of Granitgard, had the authority to control or substantially influence the company's affairs, which would qualify him as an influential person under the Act. The Commission argued that Walker's title and certain actions demonstrated his influential role. However, Walker contended that his duties were limited and that he did not have the authority to influence the company's conduct. The Tribunal accepted the evidence of Richard Sapsford, the director of Granitgard, who testified that Walker was not involved in decision-making and that any influence he exerted was minimal. The Tribunal found that Walker's role was primarily administrative and that his title did not confer the necessary authority to control or influence Granitgard's affairs.

Consequently, the Tribunal concluded that Walker was not an influential person and set aside the Commission's decision that he was an excluded individual. As a result, the decisions that Enviropest (Sunshine Coast) Pty Ltd and Enviropest (Qld) Pty Ltd, companies of which Walker is a director and secretary, were excluded companies were also set aside.

The final orders were that the 8 May 2013 decision of the Commission that Walker was an excluded individual and that the two Enviropest companies were excluded companies were set aside.

Orders