Some of the more significant matters in which Malcolm has assisted clients include:

COMMERCIAL LITIGATION

BUILDING AND CONSTRUCTION DISPUTES

Malcolm has been active in the building and construction industry for more than a decade.

He has acted in commercial construction disputes, on behalf of developers and builders and for subcontractors, arising from Australian Standard contract, as well as relating to custom drafted contracts.

BUILDING AND CONSTRUCTION CONTRACTING & CONTRACT ADMINISTRATION

Malcolm has assisted clients in the preparation contracts in Standards Australia form for head contracts and subcontracts, as well as guidance in steps required for administration of the contract during the progress of works.

BCIPA ADJUDICATION

Malcolm has represented both builders and subcontractors in BCIPA adjudications, including Supreme Court applications regarding jurisdiction of adjudicators to make decisions.

Following adjudication decision, sometimes it is necessary to take enforcement action to recover the funds at the earliest time.

ESTATE LITIGATION and FAMILY PROVISION CLAIMS

Malcolm has undertaken the estate administration of a significant number of estates.

He has also acted in many matters pursuing or opposing family provision claims.

TRADEMARKS AND COPYRIGHT

Malcolm has registered a number of trademarks for clients and acted in infringement litigation relating to trademarks and copyright.

DEBT RECOVERY

Malcolm has undertaken debt recovery work from single matters for amounts both small and large, to large ledgers for publicly listed companies.

He has conducted trials on behalf of Plaintiffs in the Magistrates Court, sometimes where the Defendant has been represented by Counsel, sometimes by a solicitor and other times where the Defendant has been self-represented. A number of Trials have resulted in the successful prosecutions of claim for publicly listed companies where the Defendant was represented by Counsel.

VOCATIONAL LICENCE MATTERS

Malcolm has acted for a number of people in dealing with issues for vocational licensing such as:

 

ADMINISTRATIVE REVIEWS IN QCAT

Malcolm has conducted a large number of administrative review matters in QCAT (and the CCT) – particularly on behalf of the QBCC. In doing so he has appeared at hearings against Counsel, solicitors and where the other party is self-represented.

As a result, he has been involved in review of licensing matters in relation to a number of the most significant building companies in Queensland.

Examples of administrative reviews are:

1. SUSPENSIONS & CANCELATIONS

Malcolm has acted for the QBCC in a number of matters involving suspension and/or cancellation of a builder’s licence. Many matters relate to a decision that the Minimum Financial Requirements for licensing were not complied with or that the licensee was no longer considered a fit and proper person to hold a licence.

 

2. OTHER LICENSING DECISIONS

3. 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 Services Authority Act (“the Act”).

Following is a table of review hearings Malcolm has conducted as advocate in relation to this type of matter:

 

4. 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, require 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 cash flow and capitalisation of the company were managed appropriately;

ii. A 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).

The following is a table of review hearings Malcolm has conducted as advocate in relation to this type of matter:

Whilst the above list indicates the hearings conducted, more important are the numerous other matters (far more in number than the hearings) in which the matter was resolved, through negotiation. This has enabled resolution of the correct result without the cost of hearing, either by withdrawal of the application or by agreement to change the decision.

5. DECISIONS REGARDING ADEQUACY OF BUILDING WORK

Malcolm has controlled many files for QBCC relating to decisions pursuant to section 72 of the Act, where upon a complaint from an owner of a property, the QBCC can decide to, or decide not to, issue a direction to the builder to rectify or complete that work.

6. DECISIONS REGARDING THE INSURANCE SCHEME

Malcolm has controlled many files for QBCC pursuant to the statutory insurance scheme set up by the Act including:

7. DECISIONS REGARDING UNSATISFACTORY CONDUCT OF VARIOUS TRADES & PROFESSIONS

Malcolm has appeared as advocate in the following Tribunal reviews regarding the conduct of various trades and professions:

8. APPEALS

Malcolm has acted in a number of appeals from administrative decisions. These appeals include:

COMMERCIAL DISPUTES

The problem:	Malcolm received referral from another lawyer of a company dispute. That lawyer proposed a Supreme Court winding up due to deadlock between directors.
The fix:	Rather than incur the cost of liquidating the company and thereby removing all control, steps were taken to remove deadlock. A company meeting was orchestrated at which the recalcitrant director was removed from the company. At minimal cost, the company could continue to trade happily.
The result:	Company saved, disrupting director removed, no Court proceedings required, cost comparatively minimal.

	*****
The problem:	A non-director shareholder of a building company was stressed to the point of seeing a psychiatrist. The director/shareholder was making allegations about him and holding his interests in the company to ransom.
The fix:	Rights of inspection under the Corporations Act were exercised, providing enough information to attack the company. The tables were turned, resulting in withdrawal of allegations, and payment out of the shareholding, plus legal costs.
The result:	Financial problem fixed, stressed removed, no longer seeing psychiatrist.

	*****
The problem:	An overseas landlord had received notice that a Bailiff was executing a Judgment. It turned out there had been a neighbourhood dispute, resulting in litigation which had been served on his Brisbane agent who had not notified him. The Plaintiff had obtained default judgment - https://archive.sclqld.org.au/qjudgment/2013/QDC13-110.pdf, and indicated that any attempt to set aside the judgment would be opposed vigorously.
The fix:	Judgment was set aside - https://archive.sclqld.org.au/qjudgment/2013/QDC13-298.pdf and a costs Order obtained -https://archive.sclqld.org.au/qjudgment/2014/QDC14-109.pdf
The result:	Bailiff’s warrant removed, Judgment removed, costs recovered.

ADVOCACY

Best summarised from an excerpt from QCAT decision in GHI v QBCC; JKL v QBCC [2016] QCAT 3:

[125]       I record my appreciation of the thorough and balanced approach displayed by Mr Robinson in discharging the Respondent’s [QBCC] duty to assist the Tribunal to make its decisions in these reviews.

COMMERCIAL LITIGATION

The problem:	Investors had made investment in a joint venture development, however had no reports or accounting, and it appeared almost all of the lots were sold.
The fix:	Caveat the remaining lots and commence proceedings for declaration and sale.
The result:	Sale controlled by statutory trustee who accounted to all participants.

BUILDING AND CONSTRUCTION DISPUTES

The problem:	A builder came to me, stressed to the utmost due to alleged defects in his work. He could see the allegations would remove all his assets and credibility, and therefore his livelihood.
The fix:	The dispute analysed, forceful opposition to the claim provided, third party claims commenced.
The result:	The matter did not proceed further against the builder. He is back building houses.

	*****
The problem:	A charity had received advice from a national firm that it would lose a building dispute and must pay $80,000.
The fix:	After assessment of the claims made, forceful criticism of the pleading, demanding amendment before any progression of the action occurred.
The result:	Matter did not proceed. As 2 years expired, the matter was finished, at minimal cost, no settlement payment required to be made.

BCIPA ADJUDICATION

The problem:	A construction company received an Adjudication Application from a scaffolding subcontractor, clearly prepared by a law firm experienced in BCIPA, in circumstances where unfortunately there had been no Payment Schedule – hence no new matter could be raised in response now. The client was concerned that payment of an Adjudication Decision would not be recoverable due to the suspected solvency position of the claimant.
The fix:	Following initial review of the material, the Adjudication Response criticising a number of jurisdictional issues was delivered, with a covering letter to the claimant’s solicitors explaining why they must withdraw – and pay the costs of the adjudicator. The Claimant responded by withdrawing the adjudication and paying the costs of the adjudication.
The result:	Win, at low cost, in a short period of time, with certainty

	*****
The problem:	An engineer had been persuaded to assist a builder, and agreed to fund some of the works on a commercial construction. The amount outstanding was significant to the engineer’s cashflow and therefore viability. The builder raised numerous allegations in response – whilst wrongful, likely to delay recovery for a very long time.
The fix:	Make demand by Payment Claim, pursue the adjudication process ultimately attaining a Magistrates Court Judgment. When the builder claimed to have no money, wind up proceedings, without a statutory demand, which resulted in payment in full.
The result:	Full recovery, at low cost, with certainty and without the protracted delay.

ESTATE LITIGATION & FAMILY PROVISION CLAIMS

The problem:	An estate received a family provision claim made by a disabled claimant, represented by no-win, no-fee lawyers who sought a very large proportion of the estate. The claimant obtained an occupational therapist report demonstrating the claimant had numerous needs.
The fix:	Obtain a costing for the various needs (which was less than the claimant’s share under the Will), the estate offered to buy those items for the claimant and deliver them. The claimant’s lawyers did not accept the offer.
The result:	It had been demonstrated that the claimant did not really have a need for the items, notwithstanding the report. After further negotiation, matter resolved on fair settlement thereafter.

DEFAMATION

The problem:	Over a number of years, the clients had been defamed on Facebook alleging involvement in paedophilia, elder abuse and tax fraud.
The fix:	Injunction obtained in the District Court, with forcible removal of the scandalous defamation, a mandatory requirement for publication of an apology on the defendant’s Facebook banner, together with damages assessed at $100,000 (which of course, was not recoverable!)
The result:	Win, with full vindication and an apology.

DEBT RECOVERY

Malcolm worked for many years at a law firm that specialised in debt recovery. He was responsible at a senior level for managing substantial ledgers of debts.

As a result, he has undertaken debt recovery work from single matters for amounts both small and large, to a high volume of matters for publicly listed companies. From time to time, the debt recovery includes caveats, subcontractor’s charges or BCIPA to assist in the process.

He has conducted trials on behalf of Plaintiffs in the Magistrates Court, sometimes where the Defendant has been represented by Counsel, sometimes by a solicitor and other times where the Defendant has been self-represented.

ADMINISTRATIVE REVIEWS IN QCAT

Malcolm worked for many years at a law firm that specialised in debt recovery. He was responsible at a senior level for managing substantial ledgers of debts.

As a result, he has undertaken debt recovery work from single matters for amounts both small and large, to a high volume of matters for publicly listed companies. From time to time, the debt recovery includes caveats, subcontractor’s charges or BCIPA to assist in the process.

He has conducted trials on behalf of Plaintiffs in the Magistrates Court, sometimes where the Defendant has been represented by Counsel, sometimes by a solicitor and other times where the Defendant has been self-represented.

Malcolm has conducted a large number of administrative review matters in QCAT (and the CCT) – particularly on behalf of the QBCC in relation to:

-      licensing issues;
-      decisions to issue, or not to issue, a direction to rectify; and
-      decisions pursuant to the statutory insurance policy.

In doing so, he has appeared at hearings against Counsel, against solicitors and where the other party is self-represented (which required significantly more care than against lawyers).

SUMMARY

For these reasons, Malcolm has an excellent reputation as a senior commercial litigation practitioner in Brisbane.

ADMINISTRATIVE LAW
Administrative Law Concepts in QCAT	2013
Dinsey: Not a Mickey Mouse Decisions (QBCC Conference)	2014
Excluded Individual Decisions (Case Update)	2011
Excluded Individuals – What are the changes?	2014
Licence Suspensions and Cancellations	2018
Onus of Proof in Review Hearings	2012
Permitted Individual Reviews (Case Update)	2011
Review of Refusals of Excluded Individual Applications	2010
Review of Refusals of Permitted Individual Applications	2011
Stays under QCAT Act	2012
DEBT RECOVERY
QBCC Debt Collection	2011
COMMERCIAL LITIGATION
Restraints of Trade in Business Sales	2015
Restraints of Trade in Employment Contracts	2015
The Prevention Principle in Building Contracts	2011
The Prolongation Principle in Building Contracts	2011
ESTATE AND ASSET PLANNING AND PROTECTION
Family Provision Claims	2015
GENERAL LEGAL TOPICS
Legal Argument Technique	2018
Model Litigant Obligation	2011
The Purchaser has Defaulted – What Can I Do?	2015
Voiding Transfers Intended to Defraud Creditors	2012

QUALIFICATIONS

• Bachelor of Laws (QUT)
• Solicitor of the Supreme Court of Queensland
• Solicitor of the High Court of Australia

MEMBERSHIPS

• Member of the Queensland Law Society
• Member of Building Dispute Practitioners’ Society