Williams v Queensland Building and Construction Commission
[2015] QCAT 42
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- Unreported Judgment
- Williams v Queensland Building and Construction Commission[2015] QCAT 42
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Williams v Queensland Building and Construction Commission[2015] QCAT 42
Williams v Queensland Building and Construction Commission[2015] QCAT 42
CITATION: | Williams v Queensland Building and Construction Commission [2015] QCAT 42 |
PARTIES: | Neil Joseph Williams (Applicant) |
v | |
Queensland Building and Construction Commission (Respondent) |
APPLICATION NUMBER: | OCR206-13 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | 13, 14, 15 October 2014 |
HEARD AT: | Brisbane |
DECISION OF: | Member Paratz |
DELIVERED ON: | 6 February 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | BUILDER – EXCLUDED INDIVIDUAL – whether the applicant was a Director of, or an influential person as to, a company – whether documents were signed by the applicant or were forgeries – whether a person was a financier to the company or made personal loans to other persons Queensland Building and Construction Commission Act 1991 (Qld), s 56AC, s 56AC(2), s 56AC(4), Schedule 2 |
APPEARANCES:
APPLICANT: | Mr S B Whitten of Counsel Instructed by Walker Pender Group |
RESPONDENT: | Mr R J Anderson of Counsel Instructed by Robinson Locke Litigation Lawyers |
REASONS FOR DECISION
- [1]The Queensland Building and Construction Commission (QBCC) issued a “Notice of Reasons for Proposed Cancellation of Licence” dated 11 July 2013 to Mr Neil Joseph Williams in which it advised that it considered him to be an “excluded individual” pursuant to s 56AC of the Queensland Building Services Authority Act 1991 (Qld).
- [2]The reason stated was that Mr Williams was a Director, secretary or influential person for Major Sheds and Tanks Pty Ltd (the Company) at the time of, or within one year of, the Company having a liquidator appointed.
- [3]Mr Williams filed an Application to review the decision in the Tribunal on 8 August 2013.
- [4]The application was heard over three days. Three witnesses were called on behalf of Mr Williams – Julia Johnstone, Wade Moore and Mr Williams. Three witnesses were called on behalf of the QBCC – Bruce Morgenstern, Timothy Dilger, and Colin Major. Statements of two further witnesses on behalf of the QBCC were admitted into evidence without cross-examination – Mr Heath (a hand writing expert) and Peter Dinoris (a liquidator). Directions were given for the filing of final Submissions and Replies, which were provided by both parties. These are the Reasons in the matter.
- [5]Mr Williams denied that he was a Director or influential person for the Company, and alleged that documents purporting to bear his signature had been forged.
Evidence of Ms Johnstone
- [6]Julia Johnstone is Mr William’s de-facto partner. She said that Mr Dilger came to collect some forms from their house which he had dropped in to them in July 2013. He advised that they had to be signed by Mr Williams.
- [7]She identified the document as a Questionnaire. She said that she filled the form out, under the direction of, and with information supplied from, Mr Dilger, because there was a notice on them warning of jail if they were not completed. She said that wrote “Director” on the form as Mr Dilger told her to, and she did not question any of it.
- [8]She left them under a birdcage for Mr Williams to sign. She did not know if Mr Williams signed the forms.
- [9]Ms Johnstone said that she had signed Mr Williams name on cheques on a couple of occasions, for convenience when he was away.
Evidence of Mr Moore
- [10]Mr Moore is a concreter who had worked for Mr Williams for 15 to 20 years. He said that he had received maybe hundreds of cheques from Mr Williams over the years, and that Mr Williams had a distinctive signature which never changed. He said that he was talking to Mr Dilger on one occasion about cheques, who had said to him that “I’ve signed Neil’s signature on documents before”.
Evidence of Mr Williams
- [11]Mr Williams had difficulty reading the Oath before giving evidence, and said that he could not read. He said he only went to Grade 6 at school and then had to go to work. He said he had no experience with companies, and no experience as a Director.
- [12]He said that he can read plans and can measure and calculate, but cannot read a document with terms and conditions on it. He said that he functioned by taking any letter to Ms Johnstone, and that if he had to fill out a form that he would get her to fill it in for him. He said they had been together for 9 years. He also had three daughters aged between 8 and 30 who could read and write well, who also helped him.
- [13]He said that “the girls” at the Westpac Bank branch knew him very well, and they knew his difficulties and looked after him.
- [14]Mr Williams is 64 years old. He is proud of his achievements. He had built up his concreting business over 28 years from $30,000 turnover when he started to $900,000 per year. He said that he owned twelve houses at the time the shed business was bought. All his finances went through one bank branch, and if he wanted to borrow to buy a cheap house, he just called the bank and it was arranged.
- [15]He said that has no experience in companies, that his accountant has tried to talk him into them many times. He described himself as only a concreter. He said that he can’t even switch a computer on, and that if people ask for his email address that he cannot give it.
- [16]He looked at the Bluescope Steel Application for Credit Form and said he recognised Mr Dilger’s writing on the front page. He said that the signature as Director was not his writing. He said it was a mystery to him why the handwriting expert would say it was his signature.
- [17]He said that he did not give a Guarantee to Bluescope and that he never gives guarantees.
- [18]Mr Williams denied any knowledge of proceedings by Bluescope. He questioned an Affidavit of Service which said a copy of a Magistrates Court claim had been left with him at 6.25pm om 11 May 2011, saying that he would not have been home at that time, as he started work at 4.30am and finished at 7.30pm each day. He speculated that there could have been a few people at his home at that time, as a lot of people come to swim in his pool. He described his home as being known as “7-11” because it was always open if someone wanted something, and they could get it.
- [19]Mr Williams described himself as an investor in the business of Major Sheds. He said that he lent the money to Mr Dilger and Mr Morgenstern to buy the business. In July 2010 he had paid $220,000 to Mr Major by cheque to pay for the purchase.
- [20]He described himself and Mr Dilger and Mr Morgenstern as friends and mates who went fishing together, and lived just down the road from each other. He said they used to borrow his boat and his bobcat. He said they both had young families, but had no work.
- [21]He said that he did sign the Lessee Disclosure Statement in relation to the premises where the company operated from, because he used to store his bobcat, steel and ute there.
- [22]He said that it was not his idea to buy the business. He said they all heard about it being for sale at the same time. He said he took no security for the loan of $220,000 because they were mates, and he was going to benefit by getting the work to lay the slabs for the sheds.
- [23]He denied that he was a Director, but agreed that he could have signed a Consent as Director, but didn’t know what it meant.
- [24]He said there was an agreement that $3,000 per month was to be paid into his housing loan in repayment of the loan by him. He described it as $1,500 per month principal and $1,500 per month interest. He said that after 12 months Mr Dilger stopped making payments, and he “fronted” Mr Dilger and said he wanted to keep an eye out to see that he was paying. He then arranged with the bank to get duplicate bank statements for the business, so that he could check that the money was being paid to him each month, as he was concerned as Mr Dilger “lived a very high life”.
- [25]He was asked about the documents left under the birdcage, and recalled signing a form, but doesn’t know what form he signed.
- [26]He attributed the failure of the business to the effect of the floods which “washed half of Ipswich away”.
Evidence of Mr Dilger
- [27]Mr Dilger said that he was approached by Mr Williams in his driveway, who told him the business was for sale. Mr Williams said that it might be a good opportunity as he did selling and Mr Williams did concreting. He said that did work building patios, and was familiar with sheds, but not with this company. He said he had no idea the business was for sale until Mr Williams told him. Mr Morgenstern was his brother-in-law.
- [28]He was not sure who approached Mr Major, but the purchase progressed, and was finalised a few weeks later in about March 2010. He said that all three of them were to run it, with Mr Williams doing the concreting. He said it was a joint conversation between them, and that Mr Williams was to fund the purchase with the business repaying him.
- [29]He said that they weren’t purchasing a company, just the stock and goodwill. He said it was easiest to use their current company, and he is “pretty sure” there was a discussion for all three of them to be Directors going forward.
- [30]He said that had the responsibility of day to day sales. Mr Morgenstern did not have a fixed role, but he came to the office nearly every day.
- [31]He said that Mr Williams came to the office nearly every day for an hour or so, they would discuss jobs, and Mr Williams would guide him on what he should and should not be doing. He said Mr Williams would advise him which suppliers to use, and that every day they would have a conversation about the business. He would also discuss which concreters to use.
- [32]He said that Mr Williams would come in after his work, and drop off dockets in the name of his concreting business, and take cheques for banking for the company.
- [33]He said that Mr Williams had a lot of input, and would yell and scream every day, and tell the secretary what to do. He said Mr Williams would answer the odd telephone call and come in on Saturday morning if he could not get in.
- [34]He said that all three of them were signatories to the Westpac account, and any one of the three of them could sign cheques, and each had a debit card linked to the account. He said they each had keys to the office.
- [35]He denied that any monies were loaned personally to him by Mr Williams, and said the total amount was loaned to the company. He denied that Mr Williams had loaned $86,600 each to him and Mr Morgenstern with $47,000 put in by Williams as an investor.
- [36]He said that he always knew Mr Williams as a Director for the three years they were in the business.
- [37]He said that he had other things going on in his life and that he and Mr Morgenstern were not getting along. He said that as a result of the business failing that he had to take his children out of private school, and move to Geelong to get work.
- [38]He said that Mr Williams had threatened him and demanded money from him. He said that their accountant had “ripped him off” and that the accountant’s fraud conviction included some of their money.
- [39]He said that he does not know who signed the questionnaire and statement of affairs. He denied that he had said that he signed Mr Williams name on occasions.
- [40]Mr Dilger did sign a letter addressed “To whom it may concern” dated 22 July 2013 which was as follows:
This is to certify that Neil Joseph Williams being a Director of Major Sheds and tanks was not involved in the day to day running of the business and as such was not aware of the financial position of the company until he was notified by Dickenson’s Accountants of the appointment of Liquidators on 10 July 2013.
I, Timothy Luke Dilger take full responsibility for the financial position of Major Sheds and Tanks.
In his evidence, Mr Dilger explained that Mr Williams had asked him to sign that letter as evidence to put to the QBCC, but that now he thinks about how the business was run, says that it was not true.
Evidence of Mr Major
- [41]Mr Major said that he stayed on to hand-over the business for two months after the sale.
- [42]He said that Mr Williams would often be at the office from 2pm to 5pm, and would be chatting to Mr Dilger about the general workings of the business. His view was that Mr Williams appeared to very concerned about the running of the business, that “sitting there for two months you form an opinion”, and that Mr Williams was involved in the “day to day” running with the other two men.
- [43]Mr Major did not recall witnessing the signature of Mr Williams on the Bluescope Steel Credit Application form, but said that his practice was not to witness a document unless he was in the presence of the person signing.
- [44]He did recall that in order for the business to operate after the sale that a Bluescope account was needed, and remembers that a limit of $50,000 was discussed at one point.[1]
Evidence of Mr Morgenstern
- [45]Mr Morgenstern said that he and Mr Dilger had a previous business as Prestige Patios in Ipswich. He said there was a discussion in the real estate agent’s office at the time of the purchase between all three of them that they would make Mr Williams a shareholder and Director in the company that operated that business. He said that he contacted their accountant, Mr Smallwood, to do what was necessary do that.
- [46]He denied that Mr Williams lent him money personally.
- [47]He said that Mr Williams participated in the running of the finances of the business, and got copies of the bank statements.
Evidence of John Heath
- [48]Mr Heath is a Document Consultant. He was asked to examine the originals of five documents and advise as to the authenticity of the signatures of Mr Williams on them. He was provided with sample copies of Mr Williams signature on forty-four other documents.
- [49]He provided a report dated 3 September 2014. The documents and his findings were as follows:
- (1)Application for Commercial Credit Facility and Guarantee 24.03.10 – Genuine
- (2)Licence Application Form Company 24.07.13 – False
- (3)Report as to Affairs 29.07.13 – Genuine
- (4)Lessee Disclosure statement (undated) – Genuine
- (5)Directors Questionnaire 23.07.13 - False
- [50]He was satisfied that the sample documents provided for comparison were all genuine signatures of Mr Williams, and displayed a substantial range of natural variation in form and appearance and had been written over a three year period from 2007 to 2010.
- [51]He commented as to the questioned signature on Document 2 (the Licence Application) as follows:[2]
The questioned signature “n J Williams” contained on document 02 is a “fully written” signature, and is relatively fluent in completion. It bears a general pictorial resemblance to the genuine Williams signatures, but differs in a number of both obvious and subtle construction features.
The questioned signature on document 02 is proportionately taller vertically and more compressed horizontally than available specimen signatures, and differs particularly in the construction of the letters “N, J, W, l, a” and “s” (see signature chart attached).
It is also noted that there is some evidence of line tremor present in the “j: formation and “S” formations, and the signature generally appears slowly and carefully completed.
- [52]He commented as to the questioned signature on document 05 (the Directors Questionnaire) as follows:[3]
The questioned signature on document 05 is written in the form of a “symbol” signature, but is distorted in appearance and only vaguely resembles the more symbolized form of genuine signature. There is a vague resemblance in the discernible “n” and “W” portion of the signature, whereas the body of the signature bears no real resemblance to the genuine specimen signatures examined.
The signature on document 05 is somewhat fragmented in completion containing breaks/separations within the body of the surname portion of the signature.
- [53]His conclusion was as follows:
There is an abundance of evidence present to conclude that questioned signatures “N J Williams: contained on documents 01, 03 and 04 are written by the specimen provider Neil Joseph Williams.
There is an abundance of evidence present to conclude that the questioned signatures “N J Williams” contained on documents 02 and 05 are false signatures not written by the specimen provider Neil Joseph Williams.
Discussion
- [54]Section 56AC of the Act relates to excluded individuals. It applies to an individual if:
56AC(2) (a) after the commencement of this section, a company, for the benefit of a creditor –
- (i)Has a provisional liquidator, liquidator, administrator or controller appointed; or
- (ii)Is wound up, or is ordered to be wound up; and
- (b)5 years have not elapsed since the event mentioned in paragraph (a)(i) or (ii) (relevant company event) happened; and
- (c)The individual –
- (i)Was, when the relevant company event happened, a Director or secretary of, or an influential person for, the company; or
- (ii)Was, at any time within the commencement of this section and within the period of one year immediately before the relevant company event happened, a Director or secretary of, or an influential person for, the company
- (ii)
- (i)
- [55]Section 56AC(4) of the Act goes on to provide that if s 56AC(4) applies to an individual because of subsection (2), the individual is an excluded individual for the relevant company event.
- [56]Mr Williams is shown in the ASIC records as having been appointed as a Director of Major Sheds and Tanks Pty Ltd on 15 March 2010. No change has been noted to that record.
- [57]A liquidator was appointed to the company on 10 July 2013.
- [58]On the face of these records, Mr Williams falls within s 56AC(4) as a Director of a company that had a liquidator appointed, and would be an excluded individual.
- [59]Mr Williams denies that he was appointed as a Director. He says that his signature which appears on any relevant documents must have been forged. Mr Williams is adamant that he did not agree to, or intend to be, a Director of the company. That is disputed by Mr Dilger and Mr Morgenstern.
- [60]Mr Williams says that he was not aware that he was listed as a Director of the company until he received a letter from the QBCC that advised that they were going to cancel his Licence as they considered him to be an excluded individual.[4]
- [61]The question of the authenticity of the documents signed by Mr Williams as a Director initially appeared to be the critical issue in this matter. At the time of the first scheduled hearing on 6 March 2014, comprehensive Statements of Evidence had not been obtained from Mr Dilger and Mr Morgenstern. At that time it appeared that the principal issue was whether Mr Williams had been lawfully appointed as a Director or not, and whether he acted as and presented himself as, a Director.
- [62]As the matter has progressed however, and in light of the Statements of Evidence and oral evidence of Mr Dilger and Mr Morgenstern, it has become apparent that the “second leg’ of s 56AC(2)(c)(ii) as to being an “influential person” is of application and significance also.
- [63]An “influential person” is defined in Schedule 2 of the Act as follows:
Influential person, for a company, means an individual, other than a Director or secretary of the company, who is in a position to control or substantially influence the conduct of the company’s affairs, including, for example, a shareholder with a significant shareholding, a financier or a senior employee.
- [64]The truth as to what documents Mr Williams signed, and which were signed by someone else as his signature, is very confused and hard to discern. In many respects it is a puzzle. At the end of the day, I do not think that it is possible to solve it, or necessary to do so.
- [65]Mr Williams is adamant that he did not sign four of the five documents that were presented to Mr Heath for examination. He only agrees that he signed the Lessee Disclosure Statement, which Mr Heath found was a genuine signature.
- [66]Mr Heath however is very clear in his expert opinion that Mr Williams did sign three of the documents, but did not sign two of them.
- [67]Mr Heath’s evidence was not challenged, and I accept his Report and conclusions.
- [68]There is no obvious logical relation between the documents that Mr Heath says were genuine signatures, and those that were false. The most striking dichotomy is that the Directors Questionnaire was false, whereas the Report as to Affairs was genuine. These are both documents that were prepared with the liquidation in progress, and which were to be forwarded to the liquidator.
- [69]Why would Mr Williams sign one document to go to the liquidator as a Director, but not another? I accept that this is what occurred, on the basis of Mr Heath’s evidence, despite Mr Williams denials, but no logical reason as to why or how this occurred appears on the evidence.
- [70]The Directors Questionnaire which I accept was a false signature was dated 23 July 2013. The Report as to Affairs, which I accept was a genuine signature, was dated 29 July 2013, which was six days later.
- [71]Why would Mr Williams not sign a Questionnaire, but sign a Report which supplemented it? Mr Williams says he refused to sign the questionnaire –that questionnaire does indicate that the capital of $230,000 was introduced into the Company by Mr Williams, which is at odds with Mr Williams contentions, so there are understandable reasons why he would refuse to sign it. The Report on Affairs that I accept was signed by Mr Williams is blank, except for a listing of $59,000 of assets, so it may have been seen by Mr Williams as a benign form.
- [72]Perhaps some other person signed the Questionnaire in light of Mr Williams refusal, in order to keep the process of liquidation moving, or to seek to bind Mr Williams into a declaration that he had contributed capital to the company.
- [73]Mr Williams denied signing the Bluescope Steel credit application form, but Mr Heath is satisfied that he did so, and Mr Major witnessed the signing of that form and his consequent presumption is that he witnessed Mr Williams doing so.
- [74]The availability of credit to obtain ongoing supplies of steel was clearly fundamental to the operation of the business. It is highly believable that Mr Williams, who was in the office extensively at that stage, and was the financier to the business, and the man with the greatest assets, would have been an obvious person to make the application together with Mr Dilger.
- [75]On the basis of the comments of Mr Major and Mr Heath, and considering the surrounding circumstances, I am satisfied that Mr Williams did sign the Bluescope Steel Credit Application form.
- [76]Both Mr Dilger and Mr Morgenstern deny signing Mr Williams signature on any documents.
- [77]It appears clear that someone signed Mr Williams name as a Director on at least two documents – Mr Williams says that, and Mr Heath agrees with him. But who did that and why?
- [78]My suspicion is that at least part of the answer to the puzzle lies in the personal conduct of Mr Williams. Mr Williams freely advised that he cannot read or write. Nevertheless, he has built up a substantial business, and is a sophisticated property investor.
- [79]It is common knowledge that persons with limited literacy skills develop sometimes very sophisticated and successful coping mechanisms to allow them to function in business and life, sometimes to a high level. They do so by engaging other people to read or “check” documents for them, or engage in discussion as to the meaning of documents. On many occasions, another party is completely unaware of, and would be surprised to find, that the person they are communicating with is illiterate.
- [80]I consider that Mr Williams has similarly developed strategies over the years that have enabled him to successfully conduct his businesses. He has used his close family and associates to assist him. He has engaged others to assist him, such as “the girls” at the bank who are aware of his situation.
- [81]It is apparent that Mr Williams could not read and comprehend on his own a document of the complexity such as the Blue Steel Application for Credit, but I am satisfied that he did sign it.
- [82]It is plausible that Mr Williams may have signed documents after being assured by persons he relied on that they appeared to be in order, but without having a personal understanding of the document.
- [83]It was agreed by Ms Johnstone and Mr Williams that she had on a couple of occasions signed his name on cheques, and there is no suggestion that Mr Williams took any issue with that practice.
- [84]These patterns of behaviour may go some way towards explaining the issues as to the signatures.
- [85]It is quite believable that on occasion Mr Williams would engage, or allow, others to sign cheques or documents on his behalf, or would himself sign documents without being fully aware of their contents, both for convenience and as part of his coping strategies as to his limited literacy.
- [86]There is a danger that other persons may know of Mr William’s situation and take advantage of that by signing his signature in the belief that Mr Williams would not realise or be aware of that, as he could not check the document himself.
- [87]The most likely scenario is that Mr Williams did sign the three documents identified by Mr Heath, but looking back he is not aware of the true nature of them, and is not able to recall them with clarity, and is not sure what documents he actually signed.
- [88]As to the two documents with false signatures, one possibility is that someone else signed them because Mr Williams was unavailable and time was pressing, and did so believing that Mr Williams would not object, and that it was in the usual course of business.
- [89]The alternate possibility is that someone else fraudulently signed the Licence Application and Directors Questionnaire, knowing that Mr Williams was not consenting to do so, and without his knowledge. That possibility is conceivable in the case of the Directors Questionnaire, as it was important to lodge the Questionnaire with the liquidator, and Mr Williams says he told Mr Dilger he would not sign that document.
- [90]It is harder to understand however to understand why someone might fraudulently sign the other document, the Licence Application, as that was at a time when the business was functioning normally.
- [91]Mr Dilger and Mr Morgenstern are adamant that it was always intended that Mr Williams be a Director of the Company, that he agreed to be a Director, that he freely signed documents as a Director, and that he acted as a Director.
- [92]Mr Williams denies that he ever intended or agreed to be a Director, or acted as one.
- [93]No records have been located from the company accountant, or the liquidator, as to a Consent to be a Director by Mr Williams, Notices of Meetings or Minutes of Meeting of the company.[5]
- [94]The genuine signatures of Mr Williams as a Director on the Bluescope Credit Application and the Report as to Affairs, support the contention that Mr Williams did act as a Director.
- [95]However, apart from the question of the Directorship, there is the “second leg” of the section as to being an “influential person”, and this issue assumed prominence as the hearing progressed.
- [96]
The evidence of two men who accepted Mr William’s money, who ran the company themselves and who ran it into liquidation, and since have been content not to repay Mr Williams but instead to dispute his claim of a debt owing
- [97]In contrast, both Mr Dilger and Mr Morgenstern painted a picture, which was supported by the observations of Mr Major, of Mr Williams having an active role in the conduct of the business of major sheds. Mr Williams, on their accounts, spent considerable time at the office discussing the business on a regular basis.
- [98]I do not place any weight on the letter signed by Mr Dilger on 22 July 2013 where he assumed full financial responsibility for the business, and said that Mr Williams was not involved in the day to day running of the business. He recanted from it in his sworn evidence. Mr Dilger experienced great stress after the failure of the business, and he was probably feeling pressure to assist Mr Williams who was facing loss of his licence. I accept Mr Dilger’s sworn evidence in preference to his comments in that letter.
- [99]Mr Williams had a considerable investment in the business, and it is natural that he would want to keep informed as to progress. Mr Williams was the older of the three men, and the most experienced businessperson, and it is apparent that he adopted a role as Mentor.
- [100]Further, Mr Williams displayed an unease as to Mr Dilger’s financial habits, describing him as “leading a high life”, and he would have been keeping a close and watchful eye to protect his interests and the interests of the business.
- [101]Mr Williams arranged for duplicate bank statements from the business to be sent to him. He said this was to check that the monthly loan repayments were being made to him, but he could have done that by checking his own bank account statements to look for deposits. It is apparent that Mr Williams wanted to be aware of the overall transactions on the business account. That is consistent with his keeping an eye on Mr Dilger’s administration.
- [102]Mr Dilger and Mr Morgenstern were well aware of Mr William’s interest in the business, and it is apparent that they provided him with any information he requested, and took notice of suggestions and recommendations he made as to selection of suppliers, contractors, and as to business practices.
- [103]I consider that the behaviour of Mr Williams is consistent with the contentions of Mr Dilger and Mr Morgenstern in that he was playing an active role in the conduct of the business.
- [104]There is no evidence supporting the contention of Mr Williams that he was making a personal loan to each of Mr Dilger and Mr Morgenstern. There are is no letter, email or supporting document of any form.
- [105]The payment for the purchase of the business was made directly in one lump sum by Mr Williams to Mr Major. If the business was being purchased only by Mr Dilger and Mr Morgenstern, then it would be expected that the monies would be loaned to their personal accounts, and that they would then in turn provide the settlement monies for the purchase – but this did not happen.
- [106]Mr Williams has not provided any substantiation of what he says are the personal loans to Mr Dilger and Mr Morgenstern of $86,600 each, and of the funding to the business of $47,000. Those amounts do add up to $220,200, which is just over the purchase price of $220,000, but there is no evidence of the $47,000 being noted in the Company accounts as a loan by Mr Williams, or appearing as a liability on the Balance Sheet.
- [107]There is no evidence of personal loans by Mr Williams to Mr Dilger and Mr Morgenstern, or of a loan to the company, apart from the evidence of Mr Williams himself. The circumstances of the payment to Mr Morgan support the contention that Mr Williams was making an investment in the business as a financier.
- [108]I therefore accept the contentions of Mr Dilger and Mr Morgenstern that Mr Williams was a financier to the business, and that at no time was there any agreement that Mr Williams was making personal loans to them.
- [109]Through this combination of paying an active role in the conduct of the business, and being a financier to the business, Mr Williams was clearly in a position to control or substantially influence the conduct of the company’s affairs.
- [110]I am not satisfied that Mr Williams was not a Director of the company; and am satisfied that he was in a position to control or substantially influence the conduct of the company’s affairs.
- [111]I am therefore satisfied that Mr Williams was an influential person within the meaning of that term in Schedule 2 and s 56AC(4) of the Act. Consequently, those provisions apply to him in light of the liquidation of the company, and he is an excluded individual for the purposes of the Act.
- [112]I therefore confirm the decision of the QBCC made on 11 July 2013, and order accordingly.
Footnotes
[1] Statement of Colin Major dated 9 April 2014 at [6].
[2] Heath Report 3 September 2014 p 5.
[3] Heath Report 3 September 2014 p 5.
[4] Statement Neil Williams 18 October 2013 at [3].
[5] Statement Neil Williams 18 October 2013 at [12], [18].
[6] Applicant’s Submissions in Reply 31 October 2014 at [27].
[7] Applicant’s Submissions in Reply 31 October 2014 at [14].