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Administrative Law

Our firm has undertaken work in the Queensland Civil & Administrative Tribunal (“QCAT”) in relation to the administrative review of decisions by the Queensland Building and Construction Commission (formerly the QBSA).

These reviews fall into the following categories:

1. EXCLUDED INDIVIDUAL REVIEWS

Decisions as to whether or not a person should be categorised as an Excluded Individual pursuant to section 56AF of the Queensland Building and Construction Commission Act (formerly the Queensland Building Services Authority Act).

2. PERMITTED INDIVIDUAL REVIEWS

Decisions as to whether or not a person should be categorised as a Permitted Individual pursuant to section 56AD(1) of the Act.

This requires an analysis of whether all reasonable steps were taken by the individual to prevent the coming into existence of the “Relevant Event” (i.e. a bankruptcy event or a corporate insolvency event).

Consequently, this means that the analysis required in a Permitted Individual Review requires:

(a) On occasion:
   (i) Review of the financial statements to determine if the cashflow and capitalisation of the company
       were managed appropriately;
   (ii) Review of the appropriateness of litigation undertaken;
   (iii) Consideration of compliance with director’s duties pursuant to the Corporations Act;
   (iv) Consideration of insolvency issues that arise pursuant to the Corporations Act; and
   (v) Whether there has been any phoenix activity;
(b) In all cases the proper application of the statutory test provided in section 56AD(8).

3. SUSPENSIONS & CANCELLATIONS

Suspensions and cancellations of licences relate to decisions that affect trading companies usually in relation to compliance with the Financial Requirements for Licensing. These can be high profile matters, and there are usually a significant number of consumers, employees, subcontractors and trade suppliers who are affected both by the company continuing to trade or alternatively ceasing to trade. Hence these can be particularly sensitive matters.

4. DECISIONS REGARDING ADEQUACY OF BUILDING WORK

Pursuant to section 72 of the Act, upon a complaint from an owner of a property, the QBSA can decide to, or decide not to, issue a direction to the builder to rectify or complete that work.

5. DECISIONS REGARDING THE STATUTORY INSURANCE SCHEME

Where the QBSA decides that building work is defective or incomplete, and that work will not be rectified or completed by the builder, it can consider the complaint as a claim on the Statutory Insurance Scheme set up by the Act.

Decisions to accept or reject a claim under the insurance scheme as to the scope of works required for rectification or completion can be the subject of an administrative review.

For further enquiries, please contact Malcolm Robinson.