QBCC LICENCE EXCLUSION (EXCLUDED INDIVIDUALS & COMPANIES)

For over 20 years JOBA Management Services have been helping the individuals and directors of distressed entities navigate through the perils of the exclusion provisions of the QBCC Act 1991.

It is a sad fact that since the 2015 legislative amendments it does not matter whether you have taken all reasonable steps to avoid the circumstances which led to the insolvency event, it simply matters whether or not you meet the definition of a excluded company  / excluded individual.

It is therefore imperative prior that you seek advice when:

1. You are resigning as a director of a Company (or ceasing to be an influential person);

2. You are selling your Company and resigning as a director (or ceasing to be an influential person);

3. If you are contemplating a personal or corporate insolvency event appointment;

4. You receive an exclusion notice from the QBCC advising of an insolvency event / s (Note these notices have strict time limits to keep the process alive).

We strongly suggest that clients contact us as soon as they experience any trading difficulties so that we can consider strategies that may avoid this process altogether!!

IF AN EXCLUSION NOTICE IS RECEIVED

There are three considerations namely:

1. Is the QBCC notice valid?
2. Are you an excluded individual / company under the Queensland Building and Construction Commission Act 1991 (‘the Act’)
3. If multiple QBCC notices have been received can they be argued as one event not multiple events.

Once we have assessed your matter and personal circumstances we will assess:

1. The appropriate strategy;
2. Advise on the likehood of success and anticipated costs.

There are strict timelines on exclusion notices. We strongly suggest early engagement with our office so that all avenues are exhausted before the due date (for filing a QCAT Review).

WHAT IF YOU DON’T DEAL WITH THE APPLICATION

In the event you do not deal with the application:

1. The QBCC will be empowered to apply the three year ban and cancel your licence (one event) or apply a permanent life ban (for multiple events);
2. If you wish to keep the matter alive 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) which provides narrow opportunities for relief.

If you do nothing and your licence is cancelled there may still be limited avenues to present your case in limited circumstances. Please contact our office to discuss.

The effect of an exclusion ban is (one event):

• You will be excluded from holding any form of contracting QBCC licence for a period of three years or life depending on the notice/s issued
• Should you re-apply for a licence at the expiry of the three 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.

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 is all encompassing;
• We regularly have circumstances of licensees contacting the QBCC honestly after receiving notices and making innocent disclosures that compromise prospects (note that the QBCC record most conversations these days);
• 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 renowned experts in QBCC exclusion matters;
• Our managing director is an ARITA professional member with over 30 years insolvency and reconstruction experience;
• We have staff who have worked internally with the QBCC in senior management roles and who have been intimately involved in the QBCC when the exclusion provisions were initially legislated;
• 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 three 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 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
• 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