Ambrose Homes Pty Ltd v Queensland Building and Construction Commission [2025] QCAT 302

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Ambrose Homes Pty Ltd v Queensland Building and Construction Commission [2025] QCAT 302 PARTIES: AMBROSE HOMES PTY LTD (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent) APPLICATION NO: OCR162-25 MATTER TYPE: General administrative review matters DELIVERED ON: 1 August 2025 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Scott-Mackenzie ORDERS: 1. The decision and directions order made by the Tribunal on 17 July 2025 is vacated. 2. The application by the applicant to stay a decision filed 15 July 2025 and the application by the applicant for interim order filed 17 July 2025 are dismissed. 3. The costs of the applications for a stay order be costs in the review application. 4. The respondent has leave to file in the Tribunal two copies and give to the applicant by email one copy of any reply to the application for leave to be represented filed 15 July 2025, by: 4:00pm on 22 August 2025 5. The application be decided on the papers, after: 22 August 2025 CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – general administrative review – where respondent suspended applicant’s licence under the Queensland Building and Construction Commission Act 1991 (Qld) – where applicant applied for a stay order under section 22 of the Queensland Civil and -- 1 of 20 -- 2 Administrative Tribunal Act 2009 (Qld) – whether a stay order should be granted Queensland Building and Construction Commission Act 1991 (Qld), s 35, s 36, s 42A, s 48, s 49, s 50C Queensland Building and Construction Commission (Minimum Financial Requirements) Regulation 2018 (Qld), s 12, 17N Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 22, s 145, s 152, s 157, Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460 Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] QCA 322 Deputy Commissioner Stewart v Kennedy [2011] QCATA 254 Hogan v Hinch [2011] HCA 4 Legal Services Commission v Baker [2005] QCA 482 Willmott v Carless [2021] QCATA 132 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION Application [1] On 15 July 2025 the applicant (‘Ambrose Homes’) made application to the Tribunal to review a decision of the respondent (‘QBCC’) to suspend its licence under the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) (‘review application’). [2] On the same date, Ambrose Homes made application to the Tribunal to stay the decision (‘stay application’). The Tribunal, on 17 July 2025, decided and directed as follows: 1. The decision of the respondent of 25 June 2025 to suspend the licence of the applicant is stayed until determination of the application to stay a decision filed on 15 July 2025, or until further order of the Tribunal. 2. Queensland Building and Construction Commission must file one (1) copy in the Tribunal and give to Ambrose Homes Pty Ltd one (1) copy of any submissions in response to the application to stay a decision, by: 4:00pm on 25 July 2025. 3. Unless otherwise directed by the Tribunal, the application to stay a decision will be heard and determined by a Member of the Tribunal on the papers, by written submissions from the parties, and without an oral hearing on or after 28 July 2025. -- 2 of 20 -- 3 Material Applicant’s material [3] Ambrose Homes filed in the Tribunal with the review application three affidavits, as follows: (a) James Ambrose affirmed 8 July 2025 and filed 15 July 2025, together with the exhibits to the affidavit (‘Mr Ambrose’s first affidavit’); (b) Melissa Louise Ambrose affirmed 15 July 2025 and filed the same day, together with the exhibits to the affidavit (‘Mrs Ambrose’s affidavit’); and (c) Carl Joseph Peter Ayers affirmed 15 July 2025 and filed the same day, together with the exhibits to the affidavit (‘Mr Ayers’ affidavit’). [4] A second affidavit of Mr Ambrose, sworn 15 July 2025 and filed the same day, together with the exhibits to the affidavit, was filed with application for a stay order (‘Mr Ambrose’s second affidavit’). [5] The affidavits will be referred to in detail later in these reasons for decision under the heading ‘Material’. QBCC’s decision [6] Mr Ambrose exhibits to his first affidavit, as exhibit “LJA-3”, the letter from QBCC to Ambrose Homes dated 25 June 2025 giving it notice of the suspension of its licence from 25 June 2025. Exhibit “LJA-4” to Mr Ambrose’s first affidavit is QBCC’s statement of reasons for the decision. [7] The statement sets out the statutory framework, referring to sections 35, 48 and 49 of the QBCC Act. It then sets out the findings of fact. [8] On 24 February 2025 QBCC commenced a minimum financial requirements audit of Ambrose Homes under section 50C(2) of the QBCC Act. [9] On 25 March 2025 QBCC gave to Ambrose Homes a notice of proposed suspension of the company’s licence on the ground of failure to comply with the audit. [10] On 8 April 2025 Ambrose Homes accountant, Xact Accounting, asked QBCC for an extension of the time to provide audit documentation. The request was refused. [11] On 16 April 2025 a minimum financial requirements report, and financial statements, were provided by Ambrose Homes to QBCC. [12] On 22 May 2025 QBCC gave to Ambrose Homes a notice of proposed suspension of the company’s licence on the ground of failure to meet the minimum financial requirements. The notice gave Ambrose Homes twenty-one days to make representations to QBCC on why Ambrose Homes’ licence should not be suspended on the ground of failure to meet the requirements. [13] On 19 June 2025 Xact Accounting provided QBCC with submissions in response to the notice of proposed suspension and asked that QBCC consider allowing Ambrose Homes to provide monthly reporting. [14] On 20 June 2025 QBCC outlined to Ambrose Homes the risks of allowing it to trade at a time when it is not paying its debts as and when they fall due. [15] The reasons for the decision then follow. Section 35 of the QBCC Act, it is said, -- 3 of 20 -- 4 provides that a building contractor’s licence is subject to the condition the licensee’s financial circumstances must at all times satisfy the minimum financial requirements. Ambrose Homes’ financial statements of 11 April 2025 showed net tangible assets of $181,328.00 after deducting disallowed asset amounts (disputed debtor) and intangible assets. Based on net tangible assets of $181,328.00, the calculated maximum revenue amounts would be $3,703,556.00, which is insufficient to cover the current maximum revenue of $9,248,888.00 or the actual revenue generated in the reporting period of $4,590,478.00. [16] Section 12(2) of the Queensland Building and Construction Commission (Minimum Financial Requirements) Regulation 2018 (Qld) (‘Minimum Financial Requirements Regulation’) provides that a licensee must, at all times, unless the licensee has a reasonable excuse, hold at least the net tangible assets, including any deed of covenant asset, worked out for the licensee under schedule 1, part 2. [17] The submissions provided by Xact Accounting to QBCC on 19 June 2025 outlined the directors’ injected funds into Ambrose Homes cash reserves during May 2025 and June 2025, the project claims, approval of an insurance claim, and lodging a caveat on a property for an outstanding debt or amount. [18] As no new financial information had been provided, QBCC was unable to determine how these events have improved Ambrose Homes’ financial position. [19] Since the reporting on 11 April 2025, QBCC has received nine monies owed complaints against Ambrose Homes, and it appears that eight of the complaints remain unresolved to date. [20] Section 17N(1) of the Minimum Financial Requirements Regulation provides it is a financial requirement that a licensee must pay a debt owing by the licensee to a contracted party, or a supplier of goods or services, on or before the day the debt becomes due and payable. [21] In the circumstances, Ambrose Homes has failed to satisfy QBCC it meets the minimum financial requirements. [22] The decision-maker’s discretion is then set out in the statement of reasons for the decision. It reads: 22. As outlined in the Statutory Framework, while it is mandatory for a contractor licensee to comply with the Minimum Financial Requirements at all times, Section 48 allows for discretion to be applied by QBCC in a decision to suspend or cancel a licence, by use of the word 'may'; 23. In making my decision, I have considered the following factors relevant to the application of discretion: 23.1. Written representations dated 19 June 2025 outline that there are projects within imminent handover, of which the Company has already committed significant investment; 24. However, it is appropriate to take suspension action against the Company due to the following reasons: 24.1. QBCC has received nine (9) monies owed complaints against the Company since 11 April 2025 (the date of the last financial information provided to QBCC0, with eight (8) of these complaints remaining unresolved, therefore the risk to the industry in allowing the Company to continue to trade whilst not -- 4 of 20 -- 5 demonstrating compliance with the Minimum Financial Requirements is significant; 24.2. The Company has external creditors which rely upon the Company for payment, however it appears that the Company is not paying its' debts as and when they fall due; 24.3. The Company's net tangible asset position on 11 April 2025 was calculated as $181,328, which is insufficient to support the actual turnover being generated, and this raises concerns of the Company having insufficient assets to support the actual revenue being undertaken. [23] The decision of the decision-maker is to suspend Ambrose Homes’ licence for failure to meet the minimum financial requirements. Material Mr Ambrose’s first affidavit [24] Mr Ambrose, in his first affidavit, deposes to Ambrose Homes holding a low rise builder licence and trade contractor licence (number 15042238) since 2016. He then goes on to depose to the minimum financial requirements audit undertaken by QBCC on about 24 February 2025. [25] On about 16 April 2025 Xact Accounting provided QBCC with a minimum financial requirements report and financial statements. Subsequently, on about 22 May 2025 QBCC gave to Ambrose Homes a notice of proposed suspension of its licence on the ground of non-compliance with the requirements. [26] On 19 June 2025 Xact Accounting provided QBCC with submissions on why the licence should not be suspended. The submissions, it is said, showed Mrs Ambrose made funds available to Ambrose Homes in May 2025 and June 2025 increasing the net tangible assets. Further, it showed: (a) Ambrose Homes have made claims on several projects for work carried out; (b) several projects will be completed in the immediate future resulting in a direct cash flow to Ambrose Homes; and (c) Ambrose Homes have received confirmation of an insurance claim for a project damaged during Cyclone Alfred. [27] Ambrose Homes offered to provide monthly reporting, including the provision of the following to address concerns, if any, held by the QBCC: (a) aged debtors and creditors at the end of each month; (b) evidence (such as bank statements) that payment arrangements were being complied with; and (c) any significant changes to Ambrose Homes that may impact its financial position. [28] On 25 June 2025 Mr Ambrose received from QBCC an email informing him the licence has been suspended. A statement of the reasons for the decision accompanied the email. It is referred to in some detail earlier in these reasons for decision. [29] Mr Ambrose responded to the email on 25 June 2025. He challenged the net tangible -- 5 of 20 -- 6 assets and asked for particulars of the complaints asserted in the statement of reasons for decision. [30] Further emails passed between Ambrose Homes and QBCC. The suspension of the licence, however, was not withdrawn. [31] Xact Accounting prepared a minimum financial requirements report from financial statements of Ambrose Homes. It is reproduced below without alteration: No. Name Amount Complaint to the QBCC? Status 1. AJT Prestige Cleaning $3,086.25 No This amount is being paid progressively. 2. Aussie Timer Stairs $11,000.00 No There is a payment plan is in place for this amount. Under that plan, there is no amount payable as at the date of this affidavit. 3. Australian Timber Supplies $4,483.41 No Australian Timber Supplies is a longstanding supplier of Ambrose Homes. It is aware of the recent issues experienced by Ambrose Homes and is not currently pressing for the payment. The amount will be paid in the next month. 4. Bingo Bins $17,842.00 No I am currently negotiating a payment plan with Bingo Bins. 5. Brisbane Stair Company $11,835.00 No This amount is being paid progressively. 6. Carpet Call Aspley $8,758.90 No I am currently negotiating a payment plan with Carpet Call Aspley. 7. Dura Systems $6,451.44 No There is an agreed payment date for this amount (21 July 2025). 8. Dynamic Door Service $18,289.70 No There is a payment plan is in place for this amount. Under that plan, there is no amount payable as at the date of this affidavit. 9. Finlayson Timer & Hardware $13,795.43 No There is a payment plan is in place for this amount. Under that plan, there is no amount payable as at the date of this affidavit. 10. Hymix Australia $18,340.08 No There is a payment plan is in place for this amount. Under that plan, there is no amount payable as at the date of this affidavit. No. Name Amount Complaint to the QBCC? Status -- 6 of 20 -- 7 11. Icehome Paining $14,073.46 No There is an agreed payment date for this amount (4 August 2025). 12. Ideal Electrical Suppliers $2,268.77 No There is an agreed payment date for this amount (21 July 2025). 13. Innovative Stainless Steel Designs $5,510.59 No There is a payment plan is in place for this amount. Under that plan, there is no amount payable as at the date of this affidavit. 14. Janelle Mead Interiors $5,080.00 No There is a payment plan is in place for this amount. Under that plan, there is no amount payable as at the date of this affidavit. 15. Jet Excavators $11,466.06 No There is a payment plan is in place for this amount. Under that plan, there is no amount payable as at the date of this affidavit. 16. K&A Building Design $4,280.00 No There is a payment plan is in place for this amount. Under that plan, there is no amount payable as at the date of this affidavit. 17. Lighting Illusions Sumner $0.00 No There is no amount currently payable to Lighting Illusions Sumner. 18. National Tiles Co $13,281.46 No There is a payment plan is in place for this amount. Under that plan, there is no amount payable as at the date of this affidavit. 19. P.K.W. Concreting $12,375.00 Yes This amount is the subject of a dispute. Ambrose Homes refuses to pay the amount because it relates to defective work. The cost to rectify the defects exceed the amount claimed to be payable by P.K.W. Concreting. 20. Quinton Steinberg $3,780.00 No There is a payment plan is in place for this amount. Under that plan, there is no amount payable as at the date of this affidavit. 21. Render X $3,967.50 No There is a payment plan is in place for this amount. Under that plan, there is no amount payable as at the date of this affidavit. -- 7 of 20 -- 8 No. Name Amount Complaint to the QBCC? Status 22. Superior Crane Hire $6,532.29 No There is a payment plan is in place for this amount. Under that plan, there is no amount payable as at the date of this affidavit. 23. Tile Ezy $15,151.31 No There is a payment plan is in place for this amount. Under that plan, there is no amount payable as at the date of this affidavit. 24. Top Dog Earthmoving $28,415.94 No There is a payment plan is in place for this amount. Under that plan, there is no amount payable as at the date of this affidavit. 25. Urban Data Electrical $10,646.49 No There is a payment plan is in place for this amount. Under that plan, there is no amount payable as at the date of this affidavit. 26. Wagners Concrete $21,781.48 No There is a payment plan is in place for this amount. Under that plan, there is no amount payable as at the date of this affidavit. 27. Worldly Painters $0.00 No There is no amount currently payable to Worldly Painters. [32] Mr Ambrose’s first affidavit then addresses the prejudice caused by the suspension. Seven projects, it is said, are under construction. The projects will generate about $1.048 million in funds between 21 days and 42 days. [33] The risks to Ambrose Homes are identified as including, but not limited to, the following: (a) the risk of delays which may result in Ambrose Homes being in substantial breach of its contract and/or liable for delay damages; and (b) reduced cash flow which will impact on Ambrose Homes ability to pay staff (currently 11 employees), contractors and suppliers. [34] The other home owners will be affected. [35] Mr Ambrose concludes by stating he is open to providing QBCC with weekly reporting on Ambrose Homes’ financial position, including aged debtors and aged accreditors. Mrs Ambrose’s affidavit [36] Mrs Ambrose swears she has sold a home at 34 Raven Court, Warner for $1.6 million. Settlement is due contemporaneously with the buyer’s sale of a property. She intends making about $130,000.00 available to Ambrose Homes. [37] Further, she is prepared to provide a personal undertaking to pay any debts of -- 8 of 20 -- 9 Ambrose Homes between the date the Tribunal makes an order staying QBCC’s decision and the hearing of the application if Ambrose Homes is wound up within 30 days of demand. Mr Ayres’ affidavit [38] Mr Ayres’ affidavit exhibits a letter from Xact Accounting to QBCC dated 16 April 2025. The letter enclosed: (a) application to change maximum revenue; and (b) a minimum financial reporting checklist. [39] Xact Accounting prepared an updated minimum financial requirements report. It is exhibit “CA-4” to the affidavit. Mr Ambrose’s second affidavit [40] Mr Ambrose, in his second affidavit, swears all creditors in the list provided by QBCC on 2 July 2025 have agreed to extended payment terms, with the following exceptions: (a) Worldly Printers. There is no amount currently payable because a credit note was issued for its invoice on the ground the work has not been performed; and (b) P.K.W. Concreting. The amount is in dispute on the ground it is for defective work notified to QBCC. [41] The affidavit concludes by offering an undertaking to pay, within 30 days of demand, any debt of Ambrose Homes incurred between the Tribunal making an order staying QBCC’s decision and the hearing of the original application remaining unpaid if Ambrose Homes is wound up. QBCC’s written submissions [42] QBCC’s written submissions are comprehensive. It commences with an introduction and background. The background adds the notice of proposed suspension of Ambrose Homes’ licence was on the grounds it had failed to meet the minimum financial requirements in that: (a) it failed to maintain net tangible assets sufficient to cover its maximum revenue; and (b) it failed to pay its debts when they fell due. [43] The notice required Ambrose Homes, within 21 days, to either: (a) provide a minimum financial requirements report and supporting documents (including signed financial statements) which demonstrate compliance with the Minimum Financial Requirements Regulation; or (b) provide written representations regarding QBCC’s proposed suspension of Ambrose Homes’ licence. [44] Also added to the background is an assertion on 22 May 2025 Ambrose Homes took out a further insurance policy to carry out residential construction work. [45] The submissions then refer to subsections (3) – (5) of section 22 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). They then go on to refer to the -- 9 of 20 -- 10 decision of the Appeal Tribunal in Deputy Commissioner Stewart v Kennedy1 (‘Kennedy’). The matters traditionally considered when deciding an application for a stay order are: (a) whether the applicant has an arguable case the decision is not the correct and preferable decision; (b) whether the applicant will be disadvantaged if a stay is not ordered; and (c) whether there is some competing disadvantage to the respondent should the stay be granted which outweighs the disadvantages suffered by the applicant if the stay is not granted. [46] The submissions also refer to the decision of the Queensland Court of Appeal in Legal Services Commission v Baker2. There, the Court observe: It goes without saying that the demonstration of an arguable appeal is a condition precedent to obtaining a stay. No court or tribunal would consider staying the operation of an order where it is clear that there was no realistic prospect of a successful appeal.3 (QBCC’s emphasis) [47] The submissions then turn to the matters mentioned, commencing with the prospects of success in the review application. It asserts Ambrose Homes’ prospects of success are poor, and the Tribunal should refuse the stay order. [48] Reference is made to the decision of the Queensland Court of Appeal in Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd4 and section 35(5) of the QBCC Act. The decision emphasises that a stay order will not be granted if the prospects of the appeal can be seen to be very poor. The section provides that the licensee’s financial circumstances must at all times satisfy the minimum financial requirements for the licence. Here, it is submitted, Ambrose Homes does not satisfy the requirements because: (a) it does not hold sufficient net tangible assets to cover its actual revenue or current maximum revenue; and (b) it is unable to pay its debts when they fall due. [49] The only signed financial statements before the Tribunal that accurately reflect Ambrose Homes’ financial position are those submitted on 16 April 2025. QBCC has reviewed the statements and determined that Ambrose Homes’ net tangible assets of 11 April 2025 (the date of the financial statements) was $181,328.00. Ambrose Homes does not challenge the determination. It needs net tangible assets of $380,959.97 to comply with the minimum financial requirements for a licence. The net tangible assets of $181,328.00 is less than fifty per cent of the net tangible assets to retain a licence. Again, Ambrose Homes does not challenge the conclusion. [50] The material produced by Ambrose Homes does not sufficiently demonstrate it has met the minimum financial requirements because they are not financial statements that reflect the totality of the company’s current financial position. Whilst the capital injections may temporarily improve Ambrose Homes’ cash reserves, QBCC has not 1 [2011] QCATA 254. 2 [2005] QCA 482. 3 Ibid [30]. 4 [2008] QCA 322, [13]. -- 10 of 20 -- 11 been provided with information about the company’s liabilities to allow it to understand its actual financial position. Additionally, the sale of properties and completion of the projects does not assist with understanding Ambrose Homes’ present financial position; they are contingent on future events that may or may not eventuate. [51] The letter from Xact Accounting dated 10 July 2025 speaks of the projected financial position of Ambrose Homes. It does not explain the present financial position. [52] The property at 122 Towers Street, Ascot has been listed for sale since 27 February 2025. There is no guarantee the property will be sold, it will achieve a price to allow a capital injection into Ambrose Homes, the final amount of the injection, if any, the sale will result in a capital injection and the company’s liability position will worsen at the time the proceeds, if any, are injected into the company. [53] The letter and minimum financial requirements report from Xact Accounting do not address future liabilities of Ambrose Homes. The company, it is submitted, chose not to file current financial statements indicating its current financial position may not be in favour of a stay order. [54] QBCC draws attention to section 17N of the Minimum Financial Requirements Regulation. It has 10 unresolved complaints, as follows: No. Date of complaint Complainant Amount of money owed Status of the complaint 1. 11/04/2025 FCFH Investments Pty Ltd $4,456.71 Notice of Proposed Cancellation has been sent to Ambrose Homes and the Commission is waiting for submissions from Ambrose Homes. 2. 16/05/2025 MS Quality Painting and Decorating Pty Ltd $15,013.20 Assessment is underway. 3. 9/06/2025 Ben Mitchell Shaw $16,284.40 Ambrose Homes advised a payment plan has been agreed and the Commission is awaiting the creditor’s confirmation. 4. 17/06/2025 P.K.W. Concreting Pty Ltd $12,375.00 Ambrose Homes advised it is willing to pay 80% of the invoiced amount but is disputing the balance of the relevant invoice. 5. 18/06/2025 Joseph Cherrie $4,928.00 A payment plan has been agreed between the parties and the Commission is monitoring. 6. 22/06/2025 Shair Ali Abdullah $16,792.00 Notice of Proposed Cancellation has been sent to Ambrose Homes and the Commission is waiting for submissions from Ambrose Homes. -- 11 of 20 -- 12 No. Date of complaint Complainant Amount of money owed Status of the complaint 7. 6/07/2025 Dura Systems Pty Ltd $6,451.44 Ambrose Homes has made a part payment of $2,369.34 and disputes the balance of the i nvoiced amount. 8. 7/07/2025 Randal Matchett $6,514.00 A payment plan has been agreed between the parties and the Commission is monitoring. 9. 15/07/2025 Noosa Formwork Pty Ltd $38,445.60 Assessment is underway. 10. 22/07/2025 Tenacity Cranes Pty Ltd $11,642.02 Assessment is underway. [55] The submissions draw attention to Ambrose Homes’ assertion it is paying AJT Prestige Cleaning, Brisbane progressively and negotiating a payment plan with Carpet Call, Aspley. The assertion does not include eight of the ten complainants. The discrepancy, it is said, reflects on the accuracy of Mr Ambrose’s first and second affidavits. [56] Under the heading ‘Public interest and interest of the parties affected’ QBCC submits it is not in the public interest, nor the interests of the building industry generally, for Ambrose Homes to continue to utilise its licence without sufficient net tangible assets or is unable to pay its debts when they fall due. The submissions draw attention to the decision in Bryant v Commonwealth Bank of Australia5. The decision concerns the operation of laws designed to protect the public in a different class from cases involving no more than the suspension of the operation of orders which might otherwise affect two private litigants. [57] QBCC carries out a crucial function in applying the provisions of the QBCC Act and Minimum Financial Requirements Regulation to ensure individuals and companies with a poor financial capacity, and those responsible for the poor financial management of those companies, are prevented from continuing to hold building licences. [58] Ambrose Homes taking out a further insurance policy on 22 May 2025 shows a blatant disregard of the risks posed to the industry and consumers. The risks, it is submitted, can only be mitigated against by not granting the stay order. [59] The application for a non-publication order from the Tribunal, it is submitted, evidences an intention not to inform Ambrose Homes’ creditors of the undertaking provided in the proceeding. The undertaking serves no utility, and provides no assurance to the Tribunal, the risks caused by granting the stay order can be sufficiently mitigated. [60] QBCC submits the strict application of the QBCC Act and Minimum Financial Requirements Regulation is necessary to prevent industry participants, including consumers, building contractors and subcontractors, from being caught in preventable 5 (1996) 134 ALR 460. -- 12 of 20 -- 13 insolvencies and disputes. Ambrose Homes may enter into further contracts with consumers and building contractors and subcontractors potentially placing the innocent party at risk. Indeed, it is submitted, as has been made out in the submissions, it is continuing to do so. [61] Ambrose Homes will not suffer any disadvantage or prejudice if QBCC’s decision is not stayed for the reasons identified, and particularly given the review application has no reasonable prospects of success. [62] In summary, QBCC submits: (a) any prejudice that may be suffered by Ambrose Homes (which is denied) does not outweigh the public interest; (b) the maintenance of the integrity of the licensing regime in Queensland, and the protection of consumers in Queensland, far outweighs TB Masonry Pty Ltd (a company formed recently) need for a nominee builder; (c) any prejudice suffered by Ambrose Homes customers: (i) is mitigated because they are entitled to seek assistance from QBCC under the statutory insurance scheme to complete and rectify any incomplete or defective work performed by Ambrose Homes; and (ii) are as a result of Ambrose Homes’ poor financial capacities, and failure to manage the company’s financial affairs properly. [63] Further, it is submitted, if Ambrose Homes is permitted to utilise its licence to enter into further contracts to carry out residential construction work, and its licence is ultimately cancelled or the relevant contracts are terminated, resulting in payment being made under the statutory insurance scheme to complete or rectify the work the subject of the new contracts, QBCC, and by extension the Queensland public purse, will be unnecessarily put to further exposures. [64] In the circumstances, QBCC submits the application for a stay order should be refused. Legislative framework [65] Section 35 of the QBCC Act, found in division 4 of part 3, provides for the conditions of a licence. It reads: (1) A licence may be granted subject to such conditions as the commission considers appropriate. (2) However, the commission may grant a licence subject to a condition that restricts the scope of work for the licence (a restrictive condition) only if: (a) the licence is a new class of licence under section 42A(1)(a); and (b) the commission is satisfied the applicant for the licence does not have adequate experience in all of the scope of work for the licence. (3) The restrictive condition must not restrict the scope of work for the licence to the extent the applicant for the licence has demonstrated experience in the scope of work to the satisfaction of the commission. -- 13 of 20 -- 14 (4) Without limiting subsection (1), a licence for which an occupational licence is required is taken to be subject to the condition that the licensee hold, and continue to hold, for the term of the licence, the occupational licence. (5) Without limiting subsection (1), a contractor’s licence is subject to the condition that: (a) the licensee’s financial circumstances must at all times satisfy the minimum financial requirements for the licence; and (b) variations of the contractor’s turnover and assets must be notified, or notified and approved, in accordance with the minimum financial requirements for the licence. [66] Cancellation, suspension and surrender of a licence are provided for in division 9 of part 3 of the Act. Section 48 provides QBCC may suspend or cancel a licence. It further provides it may suspend or cancel a licence if, inter-alia, the licensee contravenes a condition to which the licence is subject under section 35 of the Act, or that is imposed under section 36 on the licensee’s licence.6 [67] The procedure for cancellation or suspension is spelt out in section 49 of the QBCC Act. Before cancelling or suspending a licence, QBCC must give the licensee notice of its reasons for the proposed cancellation or suspension and allow the licensee twenty-one days from service of the notice to make written representations on the matter.7 [68] The section then continues: (2) The commission must consider any written representations made within the time allowed under subsection (1) before imposing the cancellation or suspension. (3) A cancellation or suspension is imposed by written notice to the licensee. (4) The notice of cancellation or suspension must comply with the QCAT Act, section 157(2). [69] Section 157(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) is in the following terms: (2) The notice must state the following: (a) the decision; (b) the reasons for the decision; (c) the person has a right to have the decision reviewed by the tribunal; (d) how, and the period within which, the person may apply for the review; (e) any right the person has to have the operation of the decision stayed under section 22. [70] The Tribunal’s power to make an order staying the operation of all or part of a reviewable decision if a proceeding for the review of the decision has started under 6 QBCC Act s 48(1)(f). 7 Ibid s 49(1). -- 14 of 20 -- 15 the Act is provided for in section 22 of the QCAT Act. Relevantly, it provides: (1) and (2) … (3) The tribunal may, on application of a party or on its own initiative, make an order staying the operation of all or part of a reviewable decision if a proceeding for the review of the decision has started under this Act. (4) The tribunal may make an order under subsection (3) only if it considers the order is desirable after having regard to the following: (a) the interests of any person whose interests may be affected by the making of the order or the order not being made; (b) any submission made to the tribunal by the decision-maker for the reviewable decision; (c) the public interest. (5) Subsection (4)(a) does not require the tribunal to give a person whose interests may be affected by the making of the order, or the order not being made, an opportunity to make submissions for the tribunal’s consideration if it is satisfied it is not practicable because of the urgency of the case or for another reason. (6) In making an order under subsection (3), the tribunal: (a) may require an undertaking, including an undertaking as to costs or damages, it considers appropriate; or (b) may impose conditions on the order it considers appropriate; or (c) may provide for the lifting of the order if stated circumstances occur. (7) The tribunal may assess damages for subsection (6)(a). (8) The tribunal’s power to assess damages under subsection (7) is exercisable only by a legally qualified member. [71] Importantly in the context of the application now before the Tribunal, the stay order can be made if the circumstances for the order is desirable having regard to the three considerations spelt out in section 22(4) of the QCAT Act. Other considerations may be relevant, but not to the exclusion of the considerations mentioned. [72] The provisions of the QCAT Act enabling the Tribunal to grant a stay of a proceeding were considered by the Appeal Tribunal in Kennedy. There, the applicant, a police officer, made application to the Tribunal to review a decision of the respondent following dismissal. He applied to the Tribunal for a stay of the decision. It was successful. The respondent appealed to the Appeal Tribunal. [73] After referring to section 22 of the QCAT Act, the Tribunal referred to sections 145 and 152 (the effect of an appeal on a decision). The Tribunal then referred to several decided cases and later continues: [17] It may be helpful to restate briefly two fundamental questions that must be addressed in such cases: does the applicant have an arguable case? Does the balance of convenience favour granting the stay? [18] Factors that may influence determination of the balance of convenience and desirability of granting a stay are legion, and include consideration -- 15 of 20 -- 16 of whether refusal of a stay would render the appeal nugatory, the impact of a stay on both parties, the public interest and many other factors. [74] The Tribunal, at [23], added: The determination of whether or not to grant a stay is a complex discretionary exercise, but common sense and authority both indicate that the usual questions to be addressed commence with those stated in paragraphs [17] and [18] above. In s 22 applications, additional specific regard as necessary to the factors mentioned in subsection (4). [75] The decision of the Appeal Tribunal frequently referred to in applications for a stay order is Wilmott v Carless8. There, the applicant, a police officer, applied to the Tribunal for a stay of the imposition of sanctions pending the hearing and decision in an application for a review. The Tribunal at first instance dismissed the application. The applicant then appealed to the Appeal Tribunal against the decision. [76] The Appeal Tribunal referred to the relevant provision of the QCAT Act, and correctly noted that it was relevant to consider whether the applicant has an arguable case on the review, and whether the balance of convenience favours a stay, as well as the s 22(4) factors. The Member was well aware of the applicable provision of the Act, and the test it laid down. The Member then considered the position in relation to an arguable case on review, and concluded that the applicant may have an arguable case on review, noting that issues raised included whether the evidence is sufficient to substantiate the findings, whether the findings amount to misconduct, and the appropriateness of the sanction. [77] The Tribunal later observed that section 22 of the QCAT Act needs to be considered as a whole. It continued: [16] … The starting point is that the start of a proceeding for review does not affect the operation of the decision under review, or prevent its implementation: s 22(1). A review may be a rehearing de novo, but on an application for a stay, the applicant has the onus of showing that a stay is desirable. The effect of the decision in Kennedy is that an essential part of that process is showing that there is some good reason to think that the outcome on review may well be different from that reached by the decision maker. I do not consider that that decision was in error in requiring that this step be taken, although the content needs to be understood in the context of the nature of the review provided for by the QCAT Act. [17] There is also the consideration that, if it is possible to show that there is a very good reason to think that the decision under review is wrong, that may not just satisfy a necessary requirement for a stay, but provide powerful support for one. This consideration is a requirement for an applicant for a stay, but it can, depending on the circumstances, provide useful support for the desirability of a stay. In the present case, the applicant’s submissions are to the effect that some of the particulars are supported by only limited evidence, or relate to the same incident as other particulars, and that the relevant conduct did not amount to misconduct. There is no reason to differ from the finding of the Member; there is nothing which suggests that the applicant’s prospects on a review are good enough to provide particular support for a stay. (Citations omitted) 8 [2021] QCATA 132. -- 16 of 20 -- 17 [78] Later, the Tribunal returned to the decision in Kennedy, observing it is often cited by the Tribunal in relation to applications for a stay order. It then added: Applications to stay decisions preventing legal practitioners from practising have usually been unable to overcome the public interest consideration, although not inevitably. But the approach in Kennedy to the significance of the public interest and the need for compelling reasons to overcome it has also been applied in applications to stay pending review of decisions involving weapons licences, child care centre approvals, builder’s licences, and private investigator’s licences. A closely related approach has been followed in the case of a stay of conditions imposed on the registration of a medical practitioner. In some of these matters, it might have been better to have approached the issue by reference to an analysis of the significance of the public interest under s 22(4)(c). (Citations omitted)9 [79] I turn now to the considerations. Prospects of success in the review application [80] Ambrose Homes submits that of the 27 creditors listed in paragraph 20 of Mr Ambrose’s first affidavit, only one creditor, P. K. W. Concreting, has made a complaint to QBCC. It then goes on to submit that it has seven projects under construction, five of which have reached practical completion, one of which is at the enclosed stage and one of which is at the site cut stage. [81] The projects, it is submitted, will generate $1.048 million within 21 days – 42 days. [82] Ambrose Homes submits the suspension of its licence will expose it to significant risks, including: (a) the risk of delay which may result in Ambrose Homes being in substantial breach of its contract and/or liable for delay damages; and (b) reduced cash flow which will impact on Ambrose Homes’ ability to pay staff (there are currently eleven employees), contractors and suppliers. [83] The further risks are not identified. [84] QBCC draws attention to the decided cases on the refusal of a stay order if the prospects of success in the review application are poor, and draws attention to section 35(5) of the QBCC Act the licensee’s financial circumstances must at all times satisfy the minimum financial requirements for the licensee. Here, Ambrose Homes’ net tangible assets are less than fifty per cent of the net tangible assets to hold a licence. [85] Ambrose Homes does not challenge the submissions. [86] The financial information provided by Ambrose Homes to QBCC does not enable it to understand the company’s actual financial position. The minimum financial requirements report provided by Xact Accounting to QBCC is a projected financial position of the company; it is not the company’s actual financial position. [87] The offer made by Mr and Mrs Ambrose is of questionable value. There is no evidence, or no sufficient evidence, the property will be sold and the cash injection available to Ambrose Homes. [88] QBCC challenges the information about outstanding debts provided by Mr and Mrs 9 Ibid [24]. -- 17 of 20 -- 18 Ambrose. It draws attention to section 17N of the Minimum Financial Requirements Regulation and names 10 complainants. [89] Ambrose Homes is unable to pay its debts as and when they fall due. It has not shown it has an arguable case that meets the minimum financial requirements for a licensee. [90] There is a paucity of information favouring the grant of a stay order. The number of projects under construction, and the effects a stay order will have on the projects and employees, contractors and suppliers does little to displace the objects of the QBCC Act and the Minimum Financial Requirements Regulation. The effects are provided for in the manner submitted by QBCC and do not to displace the overall requirements of the legislation to protect the building industry, building contractors and building consumers. [91] I am not satisfied the prospects of success in the review application are other than poor. Balance of convenience [92] An applicant for a stay order must show the balance of convenience favours granting the relief. A range of circumstances may impact on the decision, including whether irreparable harm will be suffered by the applicant if the relief is not granted; whether damages will be a sufficient remedy and whether the respondent will be liable to pay damages if ordered; whether delay in making the application has or may prejudice the respondent in some way; whether the relief sought would overturn or merely maintain the status quo; and the sufficiency of the applicant’s undertaking as to damages. [93] The requirements of the QBCC Act and the Minimum Financial Requirements Regulation are consistent with the objects of the legislation. It provides remedies addressing the matters raised by Ambrose Homes. Those matters are likely in many cases. [94] In my opinion, the balance of convenience does not favour the grant of a stay order. Interests of persons whose interests may be affected [95] Ambrose Homes identifies the persons whose interests may be affected as projects being terminated and it being exposed to claims in damages, and reduced cash flow impacting on staff, contractors and suppliers. The objects of the QBCC Act include a range of provisions designed to regulate the building industry, and building contractors and consumers and provisions designed to mitigate against those matters. [96] The evidence provided by Ambrose Homes, in my opinion, does nothing to displace the public objects of the legislation. The matters raised are not unusual and are well provided for in the relevant provisions of the legislation. Submission made by the decision-maker [97] The submissions made by QBCC have been taken into consideration. -- 18 of 20 -- 19 Public interest [98] In Hogan v Hinch10, French CJ stated that when ‘used in a statute, the term [public interest] derives its content from “the subject matter and the scope and purpose” of the enactment in which it appears.’ The words appear in the following passage from the decision: Section 42 requires that the court, before making an order under that section, be satisfied that “it is in the public interest to do so”. The term “public interest” and its analogues have long informed judicial discretions and evaluative judgments at common law. Examples include the enforceability of covenants in restraint of trade, claims for the exclusion of evidence on grounds of public interest immunity, governmental claims for confidentiality at equity, the release from the implied obligation relating to the use of documents obtained in the course of proceedings, and in the application of the law of contempt. When used in a statute, the term derives its content from “the subject matter and the scope and purpose” of the enactment in which it appears. The court is not free to apply idiosyncratic notions of public interest.11 (Citations omitted) [99] QBCC mentions several matters touching on public interest. [100] The application by Ambrose Holmes for a further insurance policy, it is submitted by QBCC, is in blatant disregard of the risks to the industry and consumers. It can only be addressed by refusing the stay order. [101] The undertakings offered by Mr and Mrs Ambrose serve little utility for the reasons traversed earlier in these reasons for decision. Ambrose Homes will not suffer any disadvantage or prejudice if the stay order is not made by the Tribunal. [102] As I have said, there is little information for making a stay order. What is clear is the company has not complied with the requirements of the QBCC Act and Minimum Financial Requirements Regulation. Ambrose Holmes does not suggest otherwise. [103] The projects under construction, in my opinion, have little bearing on whether to make a stay order. The appropriate focus is on compliance with the QBCC Act and Minimum Financial Requirements Regulation. [104] The additional parties mentioned by Mr Ambrose are likely to be present. The refusal of a stay order mitigates the risks to the industry. Claims for incomplete projects are provided for in the legislation. [105] The stay order should not be made. Orders [106] It is appropriate the interim stay order be vacated. [107] Any costs of the applications for a stay order should be provided for in the review application. [108] I order as follows: (a) the decision and directions order made by the Tribunal on 17 July 2025 is vacated; 10 [2011] HCA 4. 11 Ibid [31]. -- 19 of 20 -- 20 (b) the application by Ambrose Homes to stay a decision filed 15 July 2025 and the application by Ambrose Homes for interim order filed 17 July 2025 are dismissed; and (c) the costs of the applications for a stay order be costs in the review application. [109] There is also before the Tribunal an application for leave to be represented filed 15 July 2025. I will direct that QBCC have leave to respondent to the application and it be decided on the papers. -- 20 of 20 --