PERMITTED INDIVIDUAL APPLICATIONS

Please note that Permitted Individual Applications were only only in force up until 2015. In isolated cases these provisions may be relevant or when a former licensee may be seeking discretion from the Commission.

Our online overview of the process from 2015 is below…..

There are two processes to consider from the outset namely:

1. Is the QBCC notice valid and are you an excluded individual under the Queensland Building and Construction Commission Act 1991 (‘the Act’)?
2. If the notice is valid you must lodged a Permitted Individual Application (‘the application’) with the QBCC within 28 days if you wish to maintain your licence.

If the Permitted Individual Application is lodged within 28 days and accepted by the Commission in the first instance you become a Permitted Individual under the Act. The process is finished at this point.

If a Permitted Individual Application is not lodged with the QBCC within 28 days one of two things will happen:

1. The QBCC will be empowered to apply the ban and cancel your licence
2. You will be required to file a review and an application for an extension of time with the Queensland Civil and Administrative Tribunal (QCAT / The Tribunal)

Such applications are costly, risky exercises and should be avoided if at all possible. There are very limited grounds upon which such requests are granted by the Tribunal. If you do not submit a Permitted Individual Application and your licence is cancelled there may still be an opportunity to present your case. Please contact our office to discuss.

WHAT IF YOU DON’T DEAL WITH THE APPLICATION

In the event you do not deal with the application:

• The normal process is that the QBCC will suspend and then cancel the licence at the expiry of 28 days
• You will be excluded from holding any form of contracting QBCC licence for a period of five years or life depending on the notice/s issued
• Should you re-apply for a licence at the expiry of the five years you will be subject to the licensing criteria at the time the licence application is made (ie. post the expiry of the ban). This may mean that you will need to obtain further technical qualifications to meet the licensing criteria at the time.

WHAT IF THE QBCC REJECT THE APPLICATION

In the event the QBCC rejects the application:

• You may review the Commission’s decision within 28 days in the Tribunal otherwise the ban will apply
• The licence is maintained and is subject to the normal licensing criteria under the Act whilst the review is on foot
• If successful with the review the licence is maintained
• Reviews are costly and have inherent risks. Applicants are strongly encouraged to divert all necessary  resources to the initial Permitted Individual Application to avoid these costs and risks.

PROFESSIONAL ASSISTANCE

In the event you decide to engage professional assistance:

• A common mistake of applicants is assuming that the QBCC summary sheet provided with the initial notice simply needs to be completed and submitted with a handful of additional information
• The applications are hybrids of insolvency law and practice, building and construction law and general knowledge, administrative and commercial law and forensic and general accounting. They are specialist applications requiring a multitude of professional skills
• We are experts in the preparation of the Permitted Individual Applications and all matters pertaining to insolvency and reconstruction decisions involving the relevant provisions of the Act
• As with any court and/or administrative process you have the option of self representation. It is our experience that many self represented parties will fail often in the first instance and then seek professional assistance at a later date after their case has been compromised
• Our experience is that these applications are best approached by professionals such as ourselves preparing the initial application, consulting with any other professions (as required) on the final product and in the event that a review is required litigation support through the process. There are numerous advantages to this approach namely that we have the relevant specific knowledge across all facets for the initial application and we have a significantly reduced hourly rate when compared to alternatives. For this reason (and others) many of our referrals come directly from CBD solicitors and insolvency practitioners
• It is of note that the QBCC will often use their inhouse professionals to assess the applications. Should a review in the Tribunal result they will normally engage inhouse or external counsel.

COMMERCIAL DECISIONS

Commercial decisions to be considered and made:

• The revenue you believe will be raised via being licensed over the next five years (or life if appropriate)versus the cost and inconvenience of the application
• We ask all clients to consider the commerciality of proceeding when or if adverse issues arise during the preparation process
• We strongly suggest that clients obtain a preliminary assessment on prospects before proceeding (or before making insolvency appointment decisions). This will significantly reduce the possibility of unnecessary work being undertaken. The assessment will clearly identify your prospects, what is required to enhance your prospects and likely ongoing costs before you commit to funding the process. The cost of the assessment is directly correlated to the size of the business and complexity of issues at play. As a general guide preliminary assessments start from $3,850.

APPLICATION COSTS

Consideration should be given to application costs prior to proceeding:

• All applications are different as they are obviously based upon different sets of facts and circumstances. In turn, the associated costs are reflective of same and cannot be estimated until all facts are known
• As a very general guide our experience is that the average application has been in the vicinity of $5,500 – $11,000 (small business low turnover), $11,000 + (for medium sized businesses moderate turnover) and $22,000+ (for large sized contractors) over time. That said, we have prepared many applications for clients on a budget for a lesser amount. Suffice to say where clients have a set budget we do our best within their budgetary constraints and tailor a plan to their specific needs
• We are appreciative of the fact that clients in this predicament have experienced an insolvency event recently. As such, we try and provide some flexible options to enable the application to be completed
• As a general guide, we normally ask for monies in trust before commencing work. This is normally an amount of $5,500
• If significant up front monies into trust is not an option for a client, we can offer a tailored repayment plan provided appropriate real property security is provided. The costs of establishing the facility are added to the outstanding amount and a commercial rate of interest charged
• A further option also is progressively submitting the application over a period longer than 28 days. Whilst this is not an ideal approach, if budgetary constraints require payment over time it may be possible to preserve your rights and gradually prepare and submit your application
• Application costs can be significantly reduced if the Applicant collates and delivers all relevant material as and when requested. These applications carry a heavy administrative burden which can be substantially reduced if the client is well organised and committed to providing timely assistance when requested.

NOTABLE TRIBUNAL MATTERS

Notable tribunal matters we have engaged in with our clients:

• Weldon v QBSA [2008] QCCTB 178
• Meredith v QBSA [2010] QCAT 188
• Meredith v QBSA [2012] QCAT 146
• Morsali-Yekan v QBSA [2008] QCCTB 237
• Bohan v QBSA [2010] QCAT 404

Consideration should be given to the following prior to proceeding;

• Pursuant to the Act, two insolvency events (Company or personal events) since 1999 will expose you to a potential life ban.  The insolvency events do not need to be building related and/or licensed entities to be caught by the provisions.

If you are unsure of the implications of a potential insolvency appointment please contact our office for advice.