AK Group Qld Pty Ltd and Anor v Queensland Building and Construction Commission [2020] QCAT 501

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: AK Group Qld Pty Ltd and Anor v Queensland Building and Construction Commission [2020] QCAT 501 PARTIES: AK GROUP QLD PTY LTD AND ANDREW KENNETH BINNIE LEIPER (Applicants) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (Respondent) APPLICATION NOS: OCR082-19 OCR087-19 MATTER TYPE: General administrative review matters DELIVERED ON: 14 December 2020 HEARING DATE: 19 October 2020 HEARD AT: Maroochydore DECISION OF: Member Lumb ORDERS: 1. The decision of the Respondent on 3 August 2018 that Andrew Kenneth Binnie Leiper was an ‘excluded individual’ under s 56AF of the Queensland Building and Construction Commission Act 1991 (Qld) is set aside. 2. The decision of the Respondent on 3 August 2018 that AK Group Pty Ltd was an ‘excluded company’ pursuant to s 56AG of the Queensland Building and Construction Commission Act 1991 (Qld) is set aside. 3. It is directed that within 14 days of the date of these orders, the parties file with the Tribunal, and serve on the other party, written submissions, no longer than five (5) pages, on the question of costs of the Applications. 4. Unless otherwise ordered by the Tribunal, the question of costs will be heard and determined on the papers, without an oral hearing. CATCHWORDS: GENERAL ADMINISTRATIVE REVIEW – decision of the Queensland Building and Construction Commission that individual licensee of a construction company was an ‘excluded individual’ (under s 56AF of the Queensland -- 1 of 11 -- Building and Construction Commission Act 1991 (Qld)) – further decision that the company of which the individual became a director was an ‘excluded company’ (under s 56AG of the Act) – applications to review decisions – whether decision under s 56AF a ‘reviewable decision’ – whether individual was an ‘influential person’ within the meaning of s 4AA of the Act immediately after ceasing to be a director – whether construction company was solvent at time individual ceased to be a director Queensland Building and Construction Commission Act 1991 (Qld), s 4AA, s 56AC, s 56AF, s 56AF, s 56AG, s 56AH, s 86(1)(k)(i), s 87, Schedule 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, s 17, s 20, s 24 Butler v Queensland Building and Construction Commission [2018] QCAT 30 Chan & Ors v First Strategic Development Corporation Limited (in liq) & Anor [2013] QCA 28 Ezra Constructions Pty Ltd & Ors v Queensland Building and Construction Commission & Ors [2019] QSC 47 Hannan v Queensland Building and Construction Commission [2020] QCAT 248 Miles v Editshare Asia Pacific Pty Ltd (in liq) & Anor [2020] QCA 78 Vukobratich v Queensland Building and Construction Commission [2020] QCAT 2 APPEARANCES & REPRESENTATION: Applicants: S Hogg of Counsel instructed by Sajen Legal Respondent: M Robinson of Robinson Locke Litigation Lawyers REASONS FOR DECISION Introduction [1] This matter concerns two applications to review separate decisions of the Respondent, the Queensland Building and Construction Commission (‘the QBCC’). The applications were ordered to be heard together. [2] The first application is brought by AK Group Qld Pty Ltd (‘AK Group’) to review a decision of the QBCC on 3 August 2018 that AK Group was an ‘excluded company’ pursuant to s 56AG of the Queensland Building and Construction Commission Act 1991 (Qld) (‘the QBCC Act’). [3] The second application is brought by Andrew Kenneth Binnie Leiper (‘Mr Leiper’) to review a decision of the QBCC on 3 August 2018 that Mr Leiper was an ‘excluded individual’ under s 56AF of the QBCC Act, by virtue of s 56AC(2) and s 56AC(4) of the QBCC Act. -- 2 of 11 -- Jurisdiction [4] I find that each decision is a ‘reviewable decision’ pursuant to s 86(1)(k)(i) of the QBCC Act and that the Tribunal has jurisdiction to review both of the QBCC’s decisions pursuant to s 87 of the QBCC Act and ss 9(1), 9(2)(b) and 17 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’). [5] In reaching this conclusion, I note the difference in approach taken by separate members of the Tribunal as to whether s 56AF of the QBCC Act involves a ‘reviewable decision’ for the purposes of that Act.1 I respectfully agree with the conclusion reached by Member Paratz (as he then was) in Vukobratich that s 56AF does involve the making of a reviewable decision (although, as noted below, there may be a question as to what constitutes the relevant ‘decision’ under s 56AF). [6] In my respectful view, the following matters support the conclusion in Vukobratich. First, s 56AH(1) provides that the section applies if the QBCC ‘considers’ under s 56AF or s 56AG that a person is, relevantly, an excluded individual or excluded company. Section 56AH is headed ‘Review by tribunal of commission’s opinion’ (emphasis added). In my view, the reference to ‘opinion’, in conjunction with the word ‘considers’ in subsection (1),2 contemplates that the Tribunal may review the formation of opinion by the QBCC under, relevantly, s 56AF that an individual is an ‘excluded individual’ for the relevant event. [7] Second, this conclusion is reinforced by the introductory words of s 56AH(2) which contemplate a review of the QBCC’s ‘decision’ which can sensibly only be taken to refer to the formation of the opinion contemplated by subsection (1). The definition of ‘decision’ is an inclusionary one, and includes an order or direction. In my view, in context, the reference to ‘decision’ is wide enough to capture the formation of the opinion contemplated by s 56AH(1).3 [8] Third, s 86(1) of the QBCC Act identifies ‘decisions’ of the QBCC which comprise a ‘reviewable decision’. Subsection 86(1)(k)(i) expressly contemplates that a decision under s 56AF or s 56AG is such a decision. In circumstances where an individual does not make any submission provided for by s 56AF(2)(b) and (3)(a), it is arguable that the only ‘opinion’ formed by the QBCC is that contemplated by s 56AF(2)(a). That is, no further opinion is formed by the QBCC if s 56AF(3)(a) applies. It is unnecessary to decide this question, but if that were correct, the only opinion that would be formed in those circumstances would be the initial opinion contemplated by s 56AF(1), and s 86(1)(k)(i) would be redundant unless it applied to that ‘decision’. [9] While I consider that it may be open to debate whether the relevant ‘decision’ is the formation of the opinion by the QBCC under s 56AF(1), rather than the giving of a notice under s 56AF(2),4 it is also unnecessary for me to decide this question (and, as a practical matter, I note that the formation of the opinion would be of no moment 1 See Butler v Queensland Building and Construction Commission [2018] QCAT 30 and contrast Vukobratich v Queensland Building and Construction Commission (‘Vukobratich’) [2020] QCAT 2. 2 The term ‘considers’ is also adopted in s 56AF(2)(a). 3 In this context, I respectfully adopt the reasoning of Member Paratz (as he then was) in Vukobratich at [41]-[46]. 4 See Vukobratich at [49], [57]. I do not read the observations of Boddice in Ezra Constructions Pty Ltd & Ors v Queensland Building and Construction Commission & Ors (‘Ezra’) [2019] QSC 047 at [36] as deciding this particular issue. -- 3 of 11 -- unless and until acted upon by the QBCC by giving to the individual a written notice under s 56AF(2) which notice triggers a ‘disadvantage’.5 The review by the Tribunal [10] By s 20 of the QCAT Act, the purpose of the review is to produce the correct and preferable decision and the Tribunal must hear and decide the review by way of a fresh hearing on the merits. The issues for determination [11] There appears to be no dispute between the parties and, on the material, I find that: (a) Mr Domenic Calabretta (‘Mr Calabretta’) of Mackay Goodwin was appointed as liquidator of AK Leiper Construction Pty Ltd (‘AKLC’)6 on 5 June 2018; (b) the appointment of Mr Calabretta constituted a ‘relevant event’ (as defined in Schedule 2 to the QBCC Act), specifically a ‘relevant company event’ (and, for the purposes of s 56AC(2) of the QBCC Act, this was for the benefit of a creditor)7; (c) for the purposes of s 56AC(2), AKLC was a ‘construction company’ as defined in s 56AC(7) of the QBCC Act; (d) three years had not elapsed since the relevant company event happened (on 5 June 2018); (e) Mr Leiper is an ‘individual’ and was, within the period of two years immediately before the relevant company event happened, a director of AKLC; (f) Mr Leiper is, by virtue of s 56AC(4) of the QBCC Act, taken to be an ‘excluded individual’ for the relevant company event unless he can satisfy the Tribunal (standing in the shoes of the QBCC) that at the time he ceased to be an ‘influential person’, director or secretary for AKLC, AKLC was solvent; (g) Mr Leiper became a director of AK Group on 9 March 2018; (h) Mr Leiper ceased to be a director (and a shareholder) of AKLC on 23 April 2018 (and Ms Rose Shaw became sole director of AKLC on that date); (i) AK Group’s application turns solely on the outcome of Mr Leiper’s application.8 [12] The remaining questions for determination are: (a) Was Mr Leiper an ‘influential person’ for AKLC immediately after he ceased to be a director of AKLC on 23 April 2018? (b) If the answer to subparagraph (a) above is ‘yes’, when did Mr Leiper cease to be an influential person, and was AKLC solvent at that time? 5 Ezra at [36]. 6 Which changed its name to ACN 145 401 289 Pty Ltd on 21 May 2018. 7 See Ezra at [41] to [46]. 8 If Mr Leiper (as licensee) is not an excluded individual, there is no other basis upon which AK Group can be an ‘excluded company’ under the QBCC Act. -- 4 of 11 -- (c) If the answer to subparagraph (a) above is ‘no’, was AKLC solvent as at 23 April 2018? Was Mr Leiper an ‘influential person’ after he ceased to be a director? [13] Section 4AA of the QBCC Act provides, relevantly: (1) An influential person, for a company, is an individual, other than a director or secretary of the company, who is in a position to control or substantially influence the company’s conduct. (2) However, an influential person does not include— (a) a professional, only because the advice given by the professional influences the company’s conduct; or (b) a regulator, only because the regulator, when exercising a power or performing a function under an Act or other law, influences the company’s business; or (c) an administrator, controller, provisional liquidator or liquidator within the meaning of the Corporations Act, section 9. (3) Without limiting subsection (1), a person may be an influential person for a company if the person— (a) is the chief executive officer or general manager of the company, or holds an equivalent position in the company; or (b) is acting in a position mentioned in paragraph (a); or (c) directly or indirectly owns, holds or controls 50% or more of the shares in the company, or 50% or more of a class of shares in the company; or (d) gives instructions to an officer of the company and the officer generally acts on those instructions; or (e) makes, or participates in making, decisions that affect the whole or a substantial part of the company’s business or financial standing; or (f) engages in conduct or makes representations that would cause someone else to reasonably believe the person controls, or substantially influences, the company’s business. … [14] I note the following matters in relation to the application of s 4AA. First, the various circumstances set out in that subsection 4AA(3) fall, broadly, into two categories, namely one category which involves the holding of a particular position or shareholding (subsections (a) to (c)) and a further category which involves the active conduct of a person who may be said to be an ‘influential person’ (subsections (d) to (e)). Second, the adoption of the permissive ‘may’ suggests that the existence of one of the circumstances in that subsection does not, of itself, satisfy the requirements of subsection (1) and something more is required. For example, I consider that a 50% shareholding, as contemplated by subsection (c), if such a person were merely a -- 5 of 11 -- passive shareholder, would not, without more, render the shareholder an ‘influential person’. [15] The evidence does not suggest, and the QBCC did not submit, that any of the specific circumstances in subsection (3) applied to Mr Leiper. [16] Given that subsection (3) applies without limitation to subsection (1), the question remains as to whether Mr Leiper was ‘in a position to control or substantially influence [AKLC’s] conduct’ upon his resignation as a director (and secretary) of AKLC. [17] Mr Leiper deposed that:9 54. … As far as Mrs Leiper and I were concerned, we had no legal or actual power to influence the affairs of the Company after I resigned as director and secretary and we transferred our shares. We were no longer officeholders or shareholders. 55. Even if we had had such power, we would not have wanted to exercise it. As far as Mrs Leiper and I were concerned, the Business was operating under the new corporate structure and there was no need for us to be distracted by the affairs of the Company. It was not contributing to our livelihood or to AK Group. 56. At no point after 23 April 2018 did I take any action to exercise influence or control over the Company. I did not give the new director any instructions about how the Company was to be run. In fact, I did not have any communication with her after she was appointed as the new director of the Company. I expect that even if I had tried to tell her how to run the Company after 23 April 2018, she would have ignored me, as she would have been entitled to do. [18] Mr Leiper further deposed that, amongst other things:10 18. In addition to the above, I wish to clarify the following discrete matters: a. I have never had any discussions or correspondence with Ms Rose Shaw. b. I did not have access to any Company bank accounts after 23 April 2018. c. I am unaware as to why the Company's registered office remained the same after I resigned as a director. This may have been an oversight on the part of Mr Fraser and YML. d. I have never had any discussions with, nor met, the liquidator of the Company - Domenic Calabretta. … [19] The above factual matters were not directly challenged by the QBCC. 9 Exhibit 1, paragraphs 54 to 56. 10 Exhibit 2, paragraphs 18(a) to (d). -- 6 of 11 -- [20] However, the QBCC submitted that Mr Leiper was in a position to control or substantially influence AKLC’s conduct, by reason of the ability of Mr Leiper to determine whether AKLC’s outstanding debts were paid (that is, to make up the shortfall necessary to clear AKLC’s debts). [21] In my view, s 4AA does not require the actual exercise of control or actual influence; the section only requires that that the individual be ‘in a position’ to do so. However, I also consider that it is insufficient to demonstrate a hypothetical ability to control or substantially influence the relevant company’s conduct. I accept the submission of Counsel for the Applicants that a financier providing funds for the ongoing operation of a company would not, without more, be an influential person in relation to that company. [22] I find that there is no evidence that Mr Leiper in fact exercised any control or substantially influenced AKLC’s conduct following Mr Leiper’s resignation as director and secretary of AKLC. In the present case, in circumstances where Ms Shaw became the sole director and shareholder of AKLC on 23 April 2018, the evidence does not support the conclusion that Mr Leiper was, in fact, in a position to control or substantially influence AKLC’s conduct immediately following his retirement as director and shareholder. There is no evidence that AKLC’s reliance on Mr Leiper to financially support the company resulted in Mr Leiper being able to influence how the affairs of AKLC were in fact managed and controlled following his resignation as director. Consequently, I find that Mr Leiper was not an ‘influential person’ immediately after he ceased to be a director of AKLC on 23 April 2018. As a result, the answer to the question posed in paragraph 12(a) above is ‘no’ and it is unnecessary to consider the question posed in paragraph 12(b) above. [23] That leaves the remaining question of whether AKLC was solvent as at 23 April 2018. Was AKLC solvent as at 23 April 2018? [24] The test of solvency in s 56AC(4) of the QBCC Act turns on the ‘cash flow’ test of whether the debts of the company can be paid as and when they fall due.11 [25] The key concept is the ‘ability’ to pay the company’s debts as and when they become due and regard is had to the ‘commercial reality’ including the likelihood that the company will have funds available to it, albeit from sources in respect of which there is no formalised agreement or understanding (including the prospect of loans from related corporations or directors).12 In cases in which it is relevant to consider the financial support from a source which cannot be compelled by legal arrangement, there is a need for there to be a degree of assuredness that the financial support will be forthcoming and at such a level that one could say that the company was ‘able’ to pay its debts as and when they fall due, rather than being ‘possibly able’ to do so.13 [26] Each of the parties provided evidence from an accounting expert. The Applicants engaged Mr Peter Haley of Vincents Accountants and the QBCC provided evidence from Ms Rebecca Cook who was employed by the QBCC as a forensic accountant. 11 Hannan v Queensland Building and Construction Commission [2020] QCAT 248 at [21]. 12 Chan & Ors v First Strategic Development Corporation Limited (in liq) & Anor [2013] QCA 28 at [40]-[43] and the cases cited therein. 13 Chan & Ors v First Strategic Development Corporation Limited (in liq) & Anor [2013] QCA 28 at [43]; Miles v Editshare Asia Pacific Pty Ltd (in liq) & Anor [2020] QCA 78 at [14]. -- 7 of 11 -- The experts provided a Joint Statement of Experts signed on 11 September 2019 and 12 September 2019 respectively.14 [27] Mr Haley calculated the debts due and payable by AKLC as at 23 April 2018 in the amount of $118,319.00.15 Ms Cook appears to have accepted that amount as the company’s outstanding debts (‘at a minimum’).16 [28] That amount included the sum of $33,297.00 described as ‘employee liabilities’ which were treated as superannuation liabilities. In his Report as to Solvency, Mr Haley stated that Mr Leiper asserted that such amounts related to himself and his wife, Kate Leiper. [29] The balance of the amount of $118,319.00 comprised a variety of tax liabilities namely BAS, IAS and GST adjustments. These amounts were identified based on the books of AKLC. However, they do not tally up with the amount subsequently reported as owing to the Australian Taxation Office by Mr Calabretta. In his Statutory Report to Creditors dated 4 September 2018, Mr Calabretta reported that the Australian Taxation Office was an unsecured creditor in the amount of $55,402.00.17 A similar amount was reported in a subsequent General Report to Creditors dated 6 September 2019.18 On my understanding of the evidence, there is no explanation as to how the amount of $55,402.00 was calculated. The amount of $55,402.00 is approximately $2,500.00 more than the three amounts identified by Mr Haley as due on 28 February 2018, 21 February 2018 and 21 March 2018 (which I calculate to total $52,918.00).19 [30] In approaching the question of AKLC’s solvency (or otherwise) as at 23 April 2018, I consider it appropriate to proceed on the basis that the debt owing to the Australian Taxation Office was $55,402.00. First, at paragraph 32 of the Joint Statement of Experts, Mr Haley notes that he was unable to determine the due date for the payment of the prior and current year GST adjustments. Second, in my view, it is inherently unlikely that the Australian Taxation Office would have lodged a proof of debt with Mr Calabretta in an amount less than that in fact owing by AKLC. [31] If a debt reflected in the company’s books exceeds the amount in fact due, I consider it appropriate to approach the question of solvency on the basis of the amount of the debt in fact owed. I consider that it is appropriate to proceed on the basis that the amount of $55,402.00 properly reflects the debt owing to the Australian Taxation Office as at 23 April 2018. [32] Adopting that amount and adding to it the employee liabilities of $33,297.00 results in a total sum of $88,699.00 being owed by AKLC as at 23 April 2018. [33] Was AKLC able to pay the amount of $88,699.00 as at 23 April 2018? 14 Court Book (Exhibit 13), tab 98. 15 Tab 98, paragraph 36. 16 Tab 98, paragraph 52(b). 17 Court Book (Exhibit 13), tab 106, p 1119. 18 Court Book (Exhibit 13), tab 54, p 393. 19 Court Book (Exhibit 13), tab 98, p 1053. -- 8 of 11 -- [34] Mr Haley expressed the opinion that AKLC was solvent as at that date (adopting an amount of total debts due and payable of $118,319.00). Ms Cook is of the contrary view in relation to AKLC’s solvency. [35] Both experts agreed that the issue of solvency of AKLC was predicated on the financial support of Mr Leiper and AK Group being available, and without access to that support, AKLC could not pay its debts due and payable as at 23 April 2018 in the amount of $118,319.00 (because it had a deficiency in alternative financial resources).20 [36] In my view, the question of financial support involves both the capacity of Mr Leiper (or AK Group) to provide the necessary financial support and the willingness to do so. [37] Based on the factual assumptions in his report, Mr Haley considered that Mr Leiper had the financial capacity to pay the outstanding debts.21 Although Ms Cook noted the material significance of the percentage represented by the amount of the outstanding debt as a proportion of Mr Leiper’s ‘equity’,22 I did not understand Ms Cook to challenge the issue of Mr Leiper’s financial capacity to pay. In reaching this conclusion, I note that Ms Cook proceeded on the basis that a ‘loan’ shown on the company’s books as a loan to Mr Leiper should have been treated as a ‘dividend’ and, consequently, should not be treated as a recoverable asset.23 However, I consider that nothing turns on this distinction because the applicants’ case was based on Mr Leiper’s asserted willingness to support the payment of the company’s debts in any event. [38] Ms Cook did challenge the conclusion that Mr Leiper would have been willing to satisfy ACLC’s debts.24 [39] In my view, the issue of Mr Leiper’s willingness to financially support AKLC is a factual question rather than an issue of expert opinion (although the underlying financial details may be properly the subject of the expert evidence). [40] The QBCC submitted that the Tribunal should conclude that Mr Leiper had no willingness to pay the outstanding debts (as at 23 April 2018), primarily because of the following matters: (a) AKLC had ceased to trade prior to 23 April 2018 (and the company’s primary bank account had been closed on or about 10 April 2018 and the building licence cancelled on or about 18 April 2018); (b) the previous financial support should be viewed in this context, there being a material difference between financially supporting an ongoing concern on the one hand, and a company proposed to be, and subsequently, wound up on the other; 20 Court Book (Exhibit 13), tab 98, 1052. 21 Court Book (Exhibit 13), tab 98, para 38, p 1055. 22 Court Book (Exhibit 13), tab 98, para 52, p 1059. 23 Court Book (Exhibit 13), tab 98, para 52, p 1059. 24 Court Book (Exhibit 13), tab 98, paras 49 and 53, pp 1057, 1059. -- 9 of 11 -- (c) the Australian Taxation Office debts, which were previously due, had not been paid; (d) no provision had been made, prior to 23 April 2018, for the payment of the company’s outstanding debts; (e) Mr Leiper’s evidence that he would have paid if requested should be construed as meaning he would not have paid unless demanded (and, in turn, it should be inferred that Mr Leiper was unwilling to support AKLC). [41] The thrust of the Applicants’ case on this issue is that: (a) Mr Leiper’s direct evidence was that he intended to pay the debts if requested;25 (b) Mr Leiper in fact paid the full amount of the debt demanded by Mr Calabretta of $107,500.0026 (which appears to have been comprised of the Australian Taxation Office debt of $55,402.00, with the balance made up of liquidator’s costs and legal costs); (c) Mr Leiper had financially supported AKLC in the past; and (d) the above matters demonstrated a willingness to support the company as at 23 April 2018. [42] In cross-examination, Mr Leiper maintained that he always intended to clear the company’s (AKLC’S) debt. [43] I found Mr Leiper to be a truthful and credible witness. Although his recall of some of the finer detail of the financial position of AKLC and the financial advice he received was not perfect, Mr Leiper endeavoured to directly answer the questions put to him without evasiveness. [44] Ultimately, I consider that the issue of Mr Leiper’s financial support of AKLC essentially turns on whether his evidence should be accepted. I find that such evidence should be accepted. While the matters raised by the QBCC are relevant matters, it is material that Mr Leiper did, in fact, arrange for the entirety of the outstanding financial obligations of AKLC to be discharged. None of the matters relied upon by the QBCC dictates a conclusion that Mr Leiper was unwilling to provide financial support. In my view, for Mr Leiper to proceed on the basis that he would clear the debts when requested does not demonstrate an absence of willingness to financially support AKLC. Mr Leiper’s financial support both before the company ceased trading and after Mr Calabretta was appointed as liquidator is, in my view, consistent with Mr Leiper’s direct evidence that he always intended to clear the company’s debt. [45] I find that AKLC, with the financial support of Mr Leiper, had the ability to pay AKLC’s outstanding debts totalling $88,699.00 as at 23 April 2018.27 Mr Leiper has satisfied the Tribunal that, at the time he ceased to be a director (and secretary) of AKLC, the company was solvent. 25 See, for example, Exhibit 3, paragraph 30. 26 Which was agreed to be paid in two instalments. 27 I would have reached the same conclusion even if I had concluded that the debt due and payable was $118,319.00, there being no difference in Mr Leiper’s capacity to pay $88,699.00 or $118,319.00. -- 10 of 11 -- [46] For the above reasons, I conclude that the correct and preferable decision is that: (a) Mr Leiper is not an ‘excluded individual’ for the relevant company event, being the appointment of Mr Calabretta as liquidator of AKLC on 5 June 2018 (‘relevant event’); (b) AK Group is not an ‘excluded company’ for the relevant event; (c) the decision of the QBCC on 3 August 2018 that Mr Leiper was an ‘excluded individual’ under s 56AF of the QBCC Act should be set aside; and (d) the decision of the QBCC on 3 August 2018 that AK Group was an ‘excluded company’ pursuant to s 56AG of the QBCC Act should be set aside. Orders [47] The formal orders made, pursuant to s 24(1) of the QCAT Act, are that: (a) the decision of the Respondent on 3 August 2018 that Andrew Kenneth Binnie Leiper was an ‘excluded individual’ under s 56AF of the Queensland Building and Construction Commission Act 1991 (Qld) is set aside; (b) the decision of the Respondent on 3 August 2018 that AK Group Pty Ltd was an ‘excluded company’ pursuant to s 56AG of the Queensland Building and Construction Commission Act 1991 (Qld) is set aside. [48] With respect to the question of costs: (a) it is directed that within 14 days of the date of these orders, the parties file with the Tribunal, and serve on the other party, written submissions, no longer than five (5) pages, on the question of costs of the Applications; (b) unless otherwise ordered by the Tribunal, the question of costs will be heard and determined on the papers, without an oral hearing. -- 11 of 11 --