Builders' Registration Board Of Western Australia and Utopia Industries Pty Ltd
[2006] WASAT 295
•26 SEPTEMBER 2006
BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA and UTOPIA INDUSTRIES PTY LTD [2006] WASAT 295
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 295 | |
| BUILDERS' REGISTRATION ACT 1939 (WA) | |||
| Case No: | VR:48/2006 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR C RAYMOND (SENIOR MEMBER) MS J HAWKINS (MEMBER) MR P WELLINGTON (SESSIONAL MEMBER) | 26/09/06 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Application granted | ||
| B | |||
| PDF Version |
| Parties: | BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA UTOPIA INDUSTRIES PTY LTD |
Catchwords: | Builders' Registration Act 1939 (WA) Disciplinary proceedings Allegations of negligent conduct and misleading conduct Finding that a proper cause for disciplinary action Determination of appropriate sanctions Suspension of registration Termination of suspension on condition course of training completed Fine of $2500 in respect of negligent conduct and $5000 in respect of misleading conduct |
Legislation: | Builders' Registration Act 1939 (WA), s 13, s 13(1)(c), s 13(1)(d), s 13(1)(da), s 13(2), s 13A Building and Construction Industry Training Fund and Levy Collection Act 1990 (WA), s 21 Building and Construction Industry Training Fund and Levy Collection Regulations 1991 (WA), reg 6(1) Building Regulations 1989 (WA), reg 13(1)(d) Local Government (Miscellaneous Provisions) Act 1960 (WA) State Administrative Tribunal Act 2004 (WA), s 77 |
Case References: | Builders' Registration Board and Ongarezos [2006] WASAT 53 Medical Board of Western Australia and Roberman [2005] WASAT 118 Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 Nil |
Orders | 1. Pursuant to s 13 of the Builders' Registration Act 1939 (WA) that there is proper cause for disciplinary action against the respondent builder as mentioned in s 13(1)(c) and s 13(1)(da) of the Builders' Registration Act 1939.,2. That the respondent's registration be suspended.,3. Pursuant to s 13(2) of the Builders' Registration Act 1939 that the suspension of the respondent's registration be terminated on the condition that the director of the respondent, Mr Fabrizio Spera, complete within 12 months the unit in the applicant's course dealing with Acts, Regulations and Builder's Responsibilities.,4. That with respect to allegation 1, that the applicant breached s 13(1)(c) of the Builders' Registration Act 1939, the respondent be fined the sum of $2500.,5. That with respect to allegation 2, that the respondent breached s 13(1)(da) of the Builders' Registration Act 1939, the respondent be fined the sum of $5000. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : BUILDERS' REGISTRATION ACT 1939 (WA) CITATION : BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA and UTOPIA INDUSTRIES PTY LTD [2006] WASAT 295 MEMBER : MR C RAYMOND (SENIOR MEMBER)
- MS J HAWKINS (MEMBER)
MR P WELLINGTON (SESSIONAL MEMBER)
- Applicant
AND
UTOPIA INDUSTRIES PTY LTD
Respondent
Catchwords:
Builders' Registration Act 1939 (WA) - Disciplinary proceedings - Allegations of negligent conduct and misleading conduct - Finding that a proper cause for disciplinary action - Determination of appropriate sanctions - Suspension of registration - Termination of suspension on condition course of training completed - Fine of $2500 in respect of negligent conduct and $5000 in respect of misleading conduct
(Page 2)
Legislation:
Builders' Registration Act 1939 (WA), s 13, s 13(1)(c), s 13(1)(d), s 13(1)(da), s 13(2), s 13A
Building and Construction Industry Training Fund and Levy Collection Act 1990 (WA), s 21
Building and Construction Industry Training Fund and Levy Collection Regulations 1991 (WA), reg 6(1)
Building Regulations 1989 (WA), reg 13(1)(d)
Local Government (Miscellaneous Provisions) Act 1960 (WA)
State Administrative Tribunal Act 2004 (WA), s 77
Result:
Application granted
Category: B
Representation:
Counsel:
Applicant : Mr M Mannes
Respondent : Mr W Vogt
Solicitors:
Applicant : Marc Mannes
Respondent : Bruce Havilah & Associates
Case(s) referred to in decision(s):
Builders' Registration Board and Ongarezos [2006] WASAT 53
Medical Board of Western Australia and Roberman [2005] WASAT 118
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 The applicant sought orders that there existed a proper cause for disciplinary action against the respondent in relation to two allegations, firstly relating to alleged negligent conduct in commencing building work without having ensured that a building licence was issued; and secondly, alleged misleading conduct in having made a representation to the City of Swan in a form for the Building and Construction Industry Training Fund and Levy, in which the value of the proposed building work was understated.
2 By way of sanction, the applicant sought orders for the respondent's registration as a builder under the Builders' Registration Act 1939 (WA) to be suspended, but for that suspension to be terminated on condition that a director of the respondent undertook specified training and the imposition of a fine of $5000 in relation to the breaches established by each allegation.
3 The respondent admitted the allegations against it and did not oppose the orders sought save in respect of the amount of the monetary fines. The respondent explained the factual circumstances which had resulted in it assuming that the building licence had been applied for and had been issued to a project manager concerned in the building works, as had occurred on a number of occasions.
4 In respect of allegation 2, the respondent proffered an explanation that the understatement had occurred because the form had been completed based on recollection of the construction value, which had not been checked, because the file was not then available. In addition, it was explained that the director concerned believed that he was entitled to deduct from the contract value the cost of supplying cabinets and carpets. The true contract value was $145 257.05 and had been stated by the respondent to be $50 000 after making deductions of $48 000 for cabinets and $2000 for carpets.
5 The Tribunal concluded that the admitted allegations constituted breaches of s 13(1)(c) and 13(1)(da) of the Builders' Registration Act 1939 and that these were a proper cause for disciplinary action. While the Tribunal understood and accepted that the respondent assumed that a building licence had been issued, the breach had been compounded by the respondent continuing to carry out building work after it was aware of the true situation. In relation to the misleading conduct, the Tribunal was not
(Page 4)
- impressed with the respondent's explanation, which on its face, did not appear consistent with the detail contained in a quotation prepared by the respondent. Further, the Tribunal accepted the applicant's submission that the respondent should have been aware that it was not entitled to make any deduction from the contract value for goods supplied. The Tribunal considered that the respondent had acted recklessly in completing the form without having made any attempt to verify the contractual value.
6 The Tribunal concluded that the respondent's lack of appreciation of its responsibilities under the applicable legislation and as a builder warranted suspension of the builder's registration, subject to that suspension being terminated on condition that the director concerned undertook further specified training. The Tribunal made orders accordingly and imposed a fine in respect of allegation 1 of $2500 and in respect of allegation 2, of $5000.
The application
7 The applicant seeks the following orders.
8 Pursuant to s 13 of the Builders' Registration Act 1939 (WA) (BR Act):
1. That there is proper cause for disciplinary action against the respondent as mentioned in s 13(1)(c) of the BR Act.
2. That the respondent's registration be suspended.
9 Pursuant to s 13(2) of the BR Act:
3. That the suspension of the respondent's registration be terminated on the condition that the director of the company, Mr Spera, complete within 12 months the unit in the applicant's course dealing with Acts, Regulations and Builder's Responsibilities.
10 Pursuant to s 13A of the BR Act:
4. That there is proper cause for disciplinary action against the respondent as mentioned in s 13(1)(c) and s 13(1)(da) of the BR Act, respectively.
5. That with respect to allegation 1 set out in Annexure B Grounds for Orders Sought, the respondent be fined $5000.
(Page 5)
- 6. That with respect to allegation 2 set out in Annexure B Grounds for Orders Sought, the respondent be fined $5000.
11 The applicant seeks the above orders on the basis of two discrete allegations.
Allegation 1 – Negligent conduct (s 13(1)(c))
1.1 The respondent commenced construction of the building work on or before 1 November 2005.
1.2 The respondent was negligent in that he failed to ensure that a building licence was issued by the relevant local authority in relation to the building work, prior to the respondent commencing construction of the building work contrary to reg 13(1)(d) of the Building Regulations 1989 (WA).
Allegation 2 – Misleading conduct (s 13(1)(da))
2.1 On or about 7 October 2005, the respondent made a representation to the City of Swan in the form of a Building and Construction Industry Training Fund and Levy Collection Act 1990 (WA) application.
2.2 The representation stated that the estimated value or cost of the proposed building work was $50 000.
2.3 The representation was false in that the contracted value of the proposed building work was approximately $145 257.05.
12 Pursuant to a directions order made by the President, Justice Michael Barker, on 18 April 2006, a program was set for the respondent to file and serve a response to the allegations made and submissions as to penalty, for the applicant to file any answering submissions and thereafter for the matter to be determined on the documents. These included documents attached to the application. The Tribunal will refer to such of those documents as it may be necessary in its considerations below.
(Page 6)
The respondent's response and contentions
13 The respondent admits both allegations against it and does not oppose orders 1, 2, 3 and 4 above. The respondent takes issue with the amount of the penalty orders 5 and 6 above in which a fine of $5000 is sought in respect of each allegation. The respondent has made no submission as to the appropriate penalty in respect of allegation 1, and in relation to allegation 2, submits that the appropriate penalty should not be more than $1000.
14 The respondent submits as follows in relation to each allegation.
Allegation 1 – Negligent conduct
1. The respondent was engaged to carry out a supply and fit out of Miss Maud's Restaurant (Miss Maud's) at Shop 29 Midland Gate Shopping Centre (the works).
2. The respondent has been engaged by Miss Maud's project manager, Carramar Design (Carramar) to carry out the works.
3. The relationship between Miss Maud's, Carramar and the respondent has continued for over ten years.
4. During the time of the relationship, the respondent has relied on Ray Hutchison from Carramar to obtain building licences in respect of work performed for Carramar.
5. During the last ten years, Ray Hutchison has obtained eight of the ten building licences required for the Miss Maud's fit out.
6. The respondent was asked to apply for one of those building licences about two years ago, and the tenth application for a building licence is the building licence the subject of these allegations.
7. The respondent submits that it relied on Ray Hutchison to obtain the building licence in respect of the works.
8. There is no written contract for the works and the obligation on the contractor or subcontractor in these circumstances to obtain the building licence was not
- adequately identified. The respondent submits that there was no intention to commence the works without a building licence. The respondent admits it relied on Ray Hutchison to obtain the building licence and assumed incorrectly that one had been obtained.
- 9. The respondent openly admits in its letter to the City of Swan, dated 31 October 2005, that the failure to obtain the building licence was an oversight of the respondent. The respondent submits that the respondent is ultimately responsible, as the builder, to obtain the building licence in respect of the works prior to commencement of the works.
10. When the respondent was informed of the breach of the Local Government (Miscellaneous Provisions) Act 1960 (WA), it made immediate steps to rectify the breach.
11. In Mr Spera's letter dated 31 October 2005, he expressed his apologies and assured the City of Swan that he was aware of the seriousness of the matter. Mr Spera also stated that administrative procedures were put in place to ensure that the oversight would never happen again (Mr Spera is a director of the respondent).
12. The building licence was issued by the City of Swan within three weeks of application.
13. The works performed by the respondent is of the highest quality recognised by Australian Standards and the Building Codes of Western Australia.
14. The respondent continues to be involved in major commercial contracts throughout Western Australia and the eastern States of Australia and has done so for approximately 15 years.
15. During that time, the respondent has not committed any breach of Western Australian building laws.
16. The respondent continues to be an active member of the HIA (Housing Industry Association).
(Page 8)
Allegation 2 – Misleading conduct
17. The contract in respect of the works is an oral costs plus contract. The respondent is therefore required to estimate and continually assess the value of the construction, including supply items until completion.
18. On 9 September 2005, the respondent provided Carramar with a quote for the works in the amount of $94 610.07.
19. On 15 September 2005, the respondent provided a revised quote for the works in the amount of $145 257.05.
20. The total amount paid by the head contractor at the completion of the works was $120 168.31.
21. On or about 14 October 2005 (prior to the works completion), the respondent completed a building licence application form. The "estimated value of construction of works" entered by the respondent's (Mr Spera's) mother on that form was $100 000.
22. Mr Spera maintains that he is responsible for the form showing the estimated value of construction being $100 000, despite his mother completing that form.
23. The respondent states that when calculating the estimated value of construction, the respondent deducts the value of the total furniture supply items from the invoice.
24. The respondent states that on 7 October 2005 (prior to his mother completing the building licence application form), Mr Spera completed the Building and Construction Industry Training Fund (BCITF) levy form. On that day, he did not have the office file with him to work out the total amount of deductions to calculate the "estimated value of construction works". Mr Spera did, however, recall the quote to be approximately $100 000 (which is obviously wrong). Mr Spera made a rough estimate as follows:
Contract amount $100 000
Less cabinets (supplied by respondent) about $48 000
Less carpets about $2000
$50 000
(Page 9)
- 25. The amount is wrongly stated because the revised quote was, in fact, $145 000.
26. Mr Spera admits that the respondent is responsible for the fact that the amount is wrong.
27. The respondent admits that at the time of completing the BCITF levy form, the respondent correctly applied his mind to an estimated calculation of the value of the construction works. That calculation involves a deduction of furniture like items supplied by the respondent.
28. The respondent submits that the BCITF levy form is ambiguous. The respondent also submits that the issue is a question of "did the respondent give a wrong answer to a question that was asked?" or "did the respondent give a wrong answer to a question that should have been asked?"
29. The final costing is:
Final costing $120 160.31
Less cabinets $48 131.67
Less carpets $2 510.00
$69 526.64
31. On 21 February 2006, the respondent attempted to make up the difference by paying $72.26. That amount was reimbursed to the respondent by the City of Swan.
32. In compliance with the applicant's recommendation that Mr Spera complete, within 12 months, the unit in the applicant's course dealing with Acts, Regulations and Builder's Responsibilities, the respondent (Mr Spera) has registered for this course at TAFE and will complete the course within 12 months.
(Page 10)
- 33. The respondent maintains that it is responsible for the understatement of the BCITF levy, however, submits that the penalties sought for each breach, in the circumstances detailed herein, are excessive.
34. The respondent submits that it is appropriate in the circumstances that the respondent pay a penalty of not more than $1000.
The applicant's submissions
Allegation 1
1. The applicant submits that the respondent alone is responsible for ensuring that the provisions of reg 13(1)(d) of the Building Regulations 1989 are complied with.
2. Even after becoming aware that the provision had not been complied with, the respondent did not cease work on site. The work was almost complete by the time an appropriate licence had been issued by the local authority.
Allegation 2
3. The applicant submits that the respondent is responsible for completing the relevant application.
4. Section 21 of the Building and Construction Industry Training Fund and Levy Collection Act 1990 states:
"(1) Every project owner shall –
(a) before commencing any construction work for which a building licence is required, pay to a collection agency the levy in respect of that construction work based on the value of the construction work estimated as prescribed;
(b) before commencing any construction work for which a building licence is not required –
(i) notify the Board of the construction work and the value of the
- construction work estimated as prescribed; and
- (ii) pay to the Board the levy in respect of that construction work based on the value of that work as notified to the Board; and
- (c) where, on the completion of construction work, the value of the construction work varies by an additional amount of $25 000 or more (after adjustment has been made for inflation in the prescribed manner) from the value of that work as estimated for the purposes of par (a) or par (b), notify the Board of that variation."
- 5. Regulation 6(1) of the Building and Construction Industry Training Fund and Levy Collection Regulations 1991 (WA) states:
"(1) For the purposes of section 21(a) and (b) of the Act;
(a) where the construction work is to be carried out under a contract, the estimated value of the construction work shall be the contract price (including the GST), where that price includes value for at least each of the components referred to in paragraph (b); and
(b) where the construction work is carried out other than under a contract or under a contract the contract price for which does not include value for each of the following components, the estimated value of the construction work shall be the sum of the value (including the GST) of all goods (including manufactured goods) forming part of the construction work, labour, services necessary, fees payable, overheads to be met and profit margin."
(Page 12)
- 6. The respondent contends that it applied its mind to estimating the value of the work. The respondent contends that it deducted from what the respondent claims at the time it believed to be the approximate value of the works ($100 000), cabinets and carpets of approximately $50 000.
7. The applicant submits that the deductions formed part of the contract price and accordingly, the respondent was not entitled to apply the deduction when assessing the value of the works (see page 11 of the documents filed in support of application filed on 20 March 2006).
8. The applicant understands the respondent to be an experienced contractor and questions the legitimacy of the respondent's claim that it mistakenly underestimated the value of the works, even on the respondent's construction, by approximately $45 000.
Penalties
9. The maximum penalty capable of being applied with respect to each allegation is $25 000. The respondent's submission that a penalty of $5000 for each allegation, amounts to 20% of the maximum possible fine. In the circumstances, the applicant submits that the fines sought are appropriate and in accordance with similar assessments made by other jurisdictions, such as the Magistrate's Court, for first offences.
Considerations
15 On the admitted facts, there is a proper cause for disciplinary action against the respondent as mentioned in s 13(1)(c) and s 13(1)(da) of the BR Act, and the applicant is therefore entitled to orders 1 and 4 as sought, although the Tribunal will formulate the appropriate order in a slightly different form.
16 The Tribunal may cancel or suspend the registration of any builder under the BR Act because there is proper cause for disciplinary action, relevantly, as stated in s 13(1)(c) where the builder "has been guilty of any negligence or incompetence in connection with the performance of any building work or who has been convicted of any offence against this Act or any regulation".
(Page 13)
17 While the Tribunal can understand how the respondent assumed that the independent project manager involved in the building works would apply for the building licence, a builder who commences building works without satisfactory proof that a building licence has been issued is negligent in doing so. In this case, the negligence is compounded by the respondent continuing with the work after it was aware that a building licence had not been obtained, although by then, an application had been lodged.
18 The Tribunal accordingly finds that the admitted allegations constitute a breach of s 13(1)(c) of the BR Act, by reason that the conduct alleged constitutes negligence in connection with the completion of building work.
Allegation 2 – Misleading conduct
19 The Tribunal may cancel or suspend the registration of any builder under the BR Act because there is proper cause for disciplinary action where, as stated in subsection 13(1)(da), the builder:
"has been guilty of conduct that is harsh, unconscionable, oppressive, misleading or deceptive in relation to –
(i) a contract for the carrying out or completion of building work or variation of that contract; or
(ii) the carrying out or completion of any building work."
21 Conduct is misleading if it induces or is capable of inducing error: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 198.
22 In this instance, Mr Spera of the respondent completed the Building and Construction Industry Training Fund and Levy Collection Act 1990 application form in a manner which falsely understated the value
(Page 14)
- of the proposed building work. By stating that the value of the work was $50 000, the levy payable calculated by multiplying that sum by 0.182% (as appears from the form tendered by the applicant) resulted in a levy payable of $91.00. If the correct valuation of $145 257.05 was used, the levy payable would have been the sum of $264.37.
23 The representation as to the value of the work therefore induced in any person reading the application form, a false belief that the value of the construction work, and therefore the levy payable, was less than the true value and payment due.
24 The Tribunal accordingly finds that the admitted allegations constitute a breach of s 13(1)(da) of the BR Act by reason that the conduct alleged was misleading in relation to a contract for the carrying out of building work or the carrying out of building work.
Appropriate disciplinary orders
25 In giving consideration to the appropriate sanction, the purpose is not to punish but to preserve the public interest, to maintain the standing of those engaged in the industry and to deter others who might consider carrying out similar transgressions: Medical Board of Western Australia and Roberman [2005] WASAT 118.
26 In relation to allegation 1, there is a public interest in ensuring that building work is not carried out without appropriate approvals and licences. If an application is not made for a building licence, there is a risk that work will be carried out in a manner which does not meet the standards required for approval of a building application. It will also result in the loss of revenue payable on the issue of a building licence which, apart from depleting the revenue of government, has potential to affect the building industry because of reducing the incomes of bodies such as the respondent, which is charged with the regulation of builders in ensuring compliance with the BR Act, and provision of industry training funded by the building and construction industry training fund. This latter consequence will also flow from the conduct referred to in allegation 2. As appears from the City of Swan building licence and tax invoice relating to the works in question, the respondent is entitled to a levy on the issue of the building licence.
27 The respondent's conduct in proceeding with building works after it was aware that no building licence had been issued is an aggravating factor in considering penalty. If the respondent had immediately ceased work, its explanation as to why it was assumed that the project manager
(Page 15)
- had applied for the building licence would have more weight and would have resulted in a significant reduction in the level of fine.
28 In relation to allegation 2, the Tribunal is not impressed by the explanation provided by the respondent that $48 000 be deducted for the supply of furniture like items or cabinets. The quotations referred to in the respondent's submissions are in evidence before the Tribunal. The last quotation, dated 15 September 2005 for an amount totalling $145 257.05 (inclusive of GST), provides a breakdown covering preliminaries, delivery, concrete, electrician, plumber, tiler, painter, ceilings, joiner and miscellaneous. From the detail provided, any cabinetwork could be covered only by that portion of the quotation which comes under the heading "Joiner". Much of that relates to items such as wall panelling, timber columns, a timber nosing and brackets, backs to refrigerators and templates. There are only a few items which could constitute cabinets; there is a reference to a till cupboard - $410.25, till cupboard corner - $1351 and a panel to the front counter - $1876.75. Even assuming other items such as bench seats, a coffee counter, front storage and lower bench might be covered by the respondent's reference to cabinets or furniture to be supplied by the respondent on which he attached a value of $48 000, the total value of the work under the heading "Joiner" amounts to only $41 329.86. This must be taken to include labour and materials. As the provision of labour must be a significant component, and even allowing for GST to be added, it is difficult to see how the supply of cabinets, even widely construed, could have come anywhere near the total amount under the heading "Joiner". It is also noted that under the headings "Electrician" and "Plumber", there is a specific reference to the supply of lights, pipes and pipe fittings. There is no reference to supply of any items under the heading "Joiner".
29 The respondent also claims that a deduction of $2000 had to be made in respect of carpets. There is nothing in the quotation which appears to relate to carpets. Under "Miscellaneous", where one might expect such an item to be found, the work is described as "granite, timber floor".
30 These are matters which called for explanation from the respondent if its account has any reasonable basis.
31 Apart from the above, the starting point for the calculation of the incorrect value of the construction work was Mr Spera recalling the quotation to be approximately $100 000, being an understatement of some $45 000 in value. It is explained that when Mr Spera completed the BCITF form, he did not have the office file with him. Accepting that
(Page 16)
- to be the case, Mr Spera acted recklessly in completing the form and making the representations on it, which he did. This, together with the failure to ensure that a building licence had been issued, displays a deplorable lack of appreciation by the respondent of its responsibilities. This justifies the approach of the applicant that steps should be taken to ensure that Mr Spera, who is a director of the respondent, should complete the unit in the applicant's course dealing with Acts, Regulations and Builder's Responsibilities.
32 The applicant proposes, and the respondent does not oppose, that the respondent's registration be suspended, but that the suspension be terminated on the condition that Mr Spera completes the abovementioned course within 12 months. In effect, therefore, the proposed suspension will not come into operation unless Mr Spera acts contrary to the stated willingness on his part to complete the course for which he has already registered. Implicitly, this indicates that without such further training, there would be an unacceptable risk of further breaches by the respondent of its obligations under the BR Act.
33 In these circumstances, the Tribunal accepts that the appropriate disciplinary orders should include an order for the respondent's registration to be suspended, and an order for that suspension to be terminated on the condition stated above. The power to make such an order is provided by s 13(2) of the BR Act read with s 77 of the State Administrative Tribunal Act 2004 (WA). The Tribunal takes those orders into account in determining the appropriate fines for the breaches of the BR Act found in respect of allegations 1 and 2.
34 The Tribunal, in any event, accepts the submissions made on behalf of the applicant that the deductions made by Mr Spera of approximately $50 000 from his recollected value of the works of $100 000 was not permitted by reason of the provisions of reg 6(1) of the Building and Construction Industry Training Fund and Levy Collection Regulations 1991, which are set out above. The regulation makes plain that any value shown for goods, including manufactured goods, are to be included in the value provided. The Tribunal does not accept the submission on behalf of the respondent's solicitors that the form asks the wrong question by requiring the value of construction work to be given. That requirement is perfectly clear, having regard to the regulations of which the respondent should have been aware.
35 On balance, and taking into account all factors, it is considered that there should be a differentiation in the fines imposed in respect of the
(Page 17)
- separate breaches. The breach in respect of allegation 1 is one which arises from omission rather than commission. The omission, which could have been treated relatively less seriously, given the circumstance that it was assumed a building licence had been issued, is aggravated by the continuation of work when it was well known that there was no building licence. On the other hand, the breach in respect of allegation 2 arises by commission in circumstances which show recklessness on the part of the respondent. If Mr Spera did not have the office file with him, he simply should not have completed the relevant form without properly verifying the contract value and, of course, the respondent should have been aware that it was not permissible to make any deductions from the total contract value.
Orders
36 It is determined that the appropriate orders, which the Tribunal will make, are as follows:
1. Pursuant to s 13 of the Builders' Registration Act 1939 (WA) that there is proper cause for disciplinary action against the respondent builder as mentioned in s 13(1)(c) and s 13(1)(da) of the Builders' Registration Act 1939.
2. That the respondent's registration be suspended.
3. Pursuant to s 13(2) of the Builders' Registration Act 1939 that the suspension of the respondent's registration be terminated on the condition that the director of the respondent, Mr Fabrizio Spera, complete within 12 months the unit in the applicant's course dealing with Acts, Regulations and Builder's Responsibilities.
4. That with respect to allegation 1, that the applicant breached s 13(1)(c) of the Builders' Registration Act 1939, the respondent be fined the sum of $2500.
5. That with respect to allegation 2, that the respondent breached s 13(1)(da) of the Builders' Registration Act 1939, the respondent be fined the sum of $5000.
(Page 18)
- I certify that this and the preceding [36] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR C RAYMOND, SENIOR MEMBER
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