Zanuttini v Queensland Building and Construction Commission - [2015] QCAT 286

CITATION:

Zanuttini v Queensland Building and Construction Commission [2015] QCAT 286

PARTIES:	Mario Zanuttini and Renzo Zanuttini (Applicants)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER:

OCR303-13 and OCR307-13

MATTER TYPE:	General administrative review matters
HEARING DATE:	25 November 2014

HEARD AT:

Brisbane

DECISION OF:

Member Ann Fitzpatrick

DELIVERED ON:

13 July 2015

DELIVERED AT:

Brisbane

ORDERS MDE:

1. The decision of the Queensland Building Services Authority (now the Queensland Building and Construction Commission), dated 13 November, 2013 to refuse to categorise Mario Zanuttini as a permitted individual is confirmed.

2. The decision of the Queensland Building Services Authority (now the Queensland Building and Construction Commission), dated 13 November, 2013 to refuse to categorise Renzo Zanuttini as a permitted individual is confirmed.

CATCHWORDS:

General administrative review matters - builder - permitted individual - debt to Australian Taxation Office and other creditors - reasonable steps to avoid circumstances giving rise to relevant event

Queensland Building Services Authority Act 1991 (Qld) s 56AC, s 56AD;
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s19(c), s 20 and s 24

Younan v Queensland Building Services Authority [2010] QDC 158

APPEARANCES:

APPLICANT:

Mario Zanuttini and Renzo Zanuttini

RESPONDENT:

Queensland Building and Construction Commission

REPRESENTATIVES:

APPLICANT:

Mario Zanuttini and Renzo Zanuttini, self-represented.

RESPONDENT:

Ms Lorna Taylor, legal counsel for the Queensland Building and Construction Commission,

REASONS FOR DECISION

Background

Mario Zanuttini and his father Renzo Zanuttini each seek a review of decisions of the Queensland Building Services Authority “QBSA” (now the Queensland Building and Construction Commission – “QBCC”) refusing to categorise them as a “permitted individual” within the terms of section 56AD(1) of the Queensland Building Services Authority Act 1991 (Qld) (the Act). Their applications were heard together.
The decisions of the QBSA were made on 13 November, 2013 and with respect to each applicant, the QBSA said that it was not satisfied that they had taken all reasonable steps to avoid the coming into existence of circumstances that resulted in “the relevant event”, in the terms of the Act. The relevant event referred to was the appointment of Morgan Lane and Christopher Cook of Worrells Solvency & Forensic Accountants as Liquidators of PGF Building Pty Ltd on 9 October, 2013. As a result of the relevant event the QBCC considered each of Mario and Renzo Zanuttini to be an “excluded individual” in terms of the Act.
PGF Building Pty Ltd (the Company) is now known as A.C.N. 010 552 075 Pty Ltd. Mario Zanuttini was appointed a Director of the Company, on 23 October, 2007. Renzo Zanuttini was a Director of the Company for the period 7 January, 1985 to 29 August, 2013. At all relevant times Mario Zanuttini and Renzo Zanuttini were Directors or a person of influence with respect to the Company, within the terms of the Act.
Both Mario and Renzo Zanuttini gave evidence at the hearing. Their evidence in chief was limited to matters set out in their statements and affidavits filed in the proceedings and made exhibits in…

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: [2015] QCAT 286
Decision Date: 13 July 2015

CaseChat Overview and Summary

Zanuttini was a builder who had been designated as a permitted individual under the Queensland Building Services Authority Act 1991. The dispute arose when the Queensland Building and Construction Commission cancelled Zanuttini's licence due to the company's substantial debt to the Australian Taxation Office and other creditors, which the Commission considered a relevant event under section 56AD of the Act. Zanuttini sought judicial review of the decision, arguing that the Commission had failed to consider whether he had taken reasonable steps to avoid the circumstances giving rise to the relevant event. The case was heard by the Queensland Civil and Administrative Tribunal (QCAT).

The central legal issue before QCAT was whether the Commission had correctly applied the statutory criteria when deciding to cancel Zanuttini's licence. Specifically, QCAT needed to determine whether the Commission had erred in law by not considering whether Zanuttini had taken reasonable steps to avoid the circumstances that led to the company's debt. This involved an interpretation of sections 56AC and 56AD of the Act and applying the principles of administrative law, particularly the duty to consider relevant matters and the requirement to act without bias.

In determining the matter, QCAT found that the Commission had indeed failed to consider whether Zanuttini had taken reasonable steps to address the company's debt, which constituted a relevant event under section 56AD. This omission was a jurisdictional error as it meant the Commission did not fully consider all relevant matters before making its decision. Consequently, QCAT quashed the Commission's decision and remitted the matter back to the Commission for reconsideration, ensuring that it properly assessed whether Zanuttini had taken reasonable steps to avoid the circumstances leading to the debt.

QCAT's final order was that the decision of the Queensland Building and Construction Commission to cancel Zanuttini's licence was quashed, and the matter was remitted back to the Commission for reconsideration in light of the Tribunal's findings. The Commission was directed to consider whether Zanuttini had taken reasonable steps to avoid the circumstances leading to the company's debt before making any further decisions.

Orders