Whilst receiving a notice from QBCC is a serious, significant matter, it is important that you do not always assume the notice is valid. The following recent case highlights this point.

Background

RT No 2 Pty Ltd (RT No 2) was a company that went into external administration on 30 September 2014, owing some $3.5 million to creditors.  Jim Raptis was a director of RT No 2 and held his own licence.

By a notice dated the 5th of April 2018, Queensland Building and Construction Commission (QBCC) gave Raptis notice that considered he was an excluded individual for the purposes of section 56AF of the Queensland Building and Construction Act 1991 (Qld) (Act).

Raptis applied to the Supreme Court arguing that the notice given to him did not comply with the Act.  Key to the argument was the question of whether QBCC was obliged to apply the Act as it existed at the time of the event on 30 September 2014, or at the time of the notice on 5th April 2018. The former would have required QBCC to invite Raptis to make permitted individual (PI) application, and the latter would not have required such a reference as PI Applications (it was thought) were effectively done away with by the Queensland Building and Construction Commission and Other Legislation Amendment Act 2014 (QLD) (Amending Act).

Findings

His Honour Boddice J, in agreeing with Raptis held that:

  • The relevant provisions of the Amending Act came into effect on the 1st of July 2015;
  • The amendments introduced fundamental changes to the regime applicable to excluded individuals and, as such, they were more than mechanical in nature;
  • Consequently, unless the Amending Act was clear (to the effect that it was meant to prevent a person who, in relation to an event which occurred prior to the Amending Act coming into force, otherwise had a right to make a PI Application), then the Amending Act was not taken to abrogate the rights of such a person;
  • The Amending Act was not clear in that regard; and consequently, the Court ought to accept that the Amending Act was not intended to do away with the rights of such persons;
  • The notice given to Raptis should have invited him to make a PI Application and because it did not, the notice was void and it was set aside.

Take Home Points

A case such as this is likely to be rare, as QBCC generally gives such notices in a timely way.

That said, the case reinforces the point that if you receive a notice from QBCC, you should not simply assume that the notice is valid.  QBCC has a history of issuing notices which are not valid under its Act. For example, for years QBCC issued Directions to Rectify which did not comply with its Act; see McNab Constructions Australia Pty Ltd v Queensland Building and Construction Commission [2013] QSC 057.  If a notice is not valid, then you may not be required to take any action (which could lead to significant savings for you).

If you receive a notice from QBCC, you should obtain urgent, detailed legal advice from a lawyer with expertise in QBCC matters.

Do not just obtain advice from your family suburban practitioner – the QBCC Act is simply too complex.  We have seen too many matters which could have been readily resolved cause major headaches simply because the client (before they came to us) did not obtain urgent advice from a practitioner who is well versed in QBCC matters.

Cornwalls’ Brisbane building and construction team has extensive experience in QBCC matters.  If you have a QBCC issue, we have probably seen it before, and can provide you with strategic advice to assist you in achieving outstanding outcomes. Please contact the experienced team at Cornwalls.

Queries

Should you wish to discuss any of the above matters, please contact any member of our Building & Construction Team.

Disclaimer

This article does not constitute legal advice, it is commentary on a topical issue. If anything discussed in this article concerns you please seek legal advice.

The Author

Brent Turnbull

PARTNER, BRISBANE