| CITATION: | Gerhardt v Queensland Building & Construction Commission [2014] QCAT 139 |
| PARTIES: | Trevor Gerhardt (Applicant) |
| v | |
| Queensland Building & Construction Commission (Respondent) |
| APPLICATION NUMBER: | GAR230 -13 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 29 November 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 10 April 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Trevor Gerhardt has engaged in unsatisfactory conduct. 2. Queensland Building and Construction Commission may file one (1) copy and serve on Trevor Gerhardt one (1) copy of any submissions as to sanction, by 4:00pm on 24 April 2014 3. Trevor Gerhardt may file one (1) copy and serve on Queensland Building and Construction Commission one (1) copy of any submissions in reply, by 4:00pm on 22 May 2014 4. A decision will be made on the papers as to sanction not before 22 May 2014. |
| CATCHWORDS: | ADMINISTRATIVE REVIEW – OCCUPATIONAL REGULATION – DISCIPLINARY PROCEEDINGS – PRIVATE CERTIFIER – where certifier issued building approval – where plans annexed to building approval different from plans annexed to development approval – where certifier issued final certificate for building different from development plans and building plans – whether certifier engaged in unsatisfactory conduct – whether certifier breached Building Act – whether certifier breached code of conduct – whether certifier entitled to rely on defence of honest and reasonable mistake STATUTORY INTERPRETATION – where certifier relied on Regulation and code of conduct – whether Regulation and code of conduct modified statutory obligations Building Act 1975 (Qld) ss 30, 84, 113A, 258, Schedule 2 Webster v McIntosh (1980) 32 ALR 603 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr P R Smith |
| RESPONDENT: | Mr E Bird, of the Queensland Building & Construction Commission |
REASONS FOR DECISION
In 2007, Brisbane City Council issued a development approval for a home at Stephens St Yeronga. Mr Ben Biggs was the owner, architect and person who lodged that application.
Mr Gerhardt is a private building certifier (Class A). On 23 June 2008, at Mr Biggs’ request, he issued a building approval for a home at the Stephens St address.
However, the plans attached to the building approval (building plans) were not the same as the plans attached to the development approval (development plans). The house as built was different from both sets of plans in small, but material, ways.
The Queensland Building Services Authority (as it then was) found that Mr Gerhardt’s action in issuing the building approval was a breach of s 84(1) of the Building Act and the code of conduct for building certifiers. It also found that Mr Gerhardt had breached his obligations by certifying the finished building even though it did not comply with the approved plans (or the earlier plans). Therefore, on 18 June 2013, it decided that Mr Gerhardt had engaged in unsatisfactory conduct. The Authority reprimanded Mr Gerhardt and required him to take all reasonable steps to ensure that the building did comply with the development approval.
Mr Gerhardt has applied…
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- AGLC
- Gerhardt v Queensland Building & Construction Commission [2014] QCAT 139
- Case
- [2014] QCAT 139
- Decision Date
CaseChat Overview and Summary
The legal issues before the court encompassed whether the certifier's actions constituted unsatisfactory conduct, whether there was a breach of the Building Act, and whether the certifier's reliance on the relevant regulation and code of conduct was a valid defence. Additionally, the court had to consider whether the regulation and code of conduct effectively modified the statutory obligations of the certifier.
The tribunal found that the certifier, Trevor Gerhardt, had indeed engaged in unsatisfactory conduct by not adhering to the approved plans in the issuance of the building approval and final certificate. The tribunal concluded that the certifier's actions amounted to a breach of statutory obligations under the Building Act. Moreover, the tribunal determined that the regulation and code of conduct did not absolve the certifier of responsibility for ensuring compliance with the statutory obligations. As a result, the certifier's defence of honest and reasonable mistake was not upheld.
The tribunal ordered that Trevor Gerhardt had engaged in unsatisfactory conduct, and set timelines for the Commission and Gerhardt to file and serve submissions regarding the appropriate sanction. The final decision on the sanction was to be made not before 22 May 2014.
Orders
Orders of the court
1. Trevor Gerhardt has engaged in unsatisfactory conduct.
2. Queensland Building and Construction Commission may file one (1) copy and serve on Trevor Gerhardt one (1) copy of any submissions as to sanction, by 4:00pm on 24 April 2014
3. Trevor Gerhardt may file one (1) copy and serve on Queensland Building and Construction Commission one (1) copy of any submissions in reply, by 4:00pm on 22 May 2014
4. A decision will be made on the papers as to sanction not before 22 May 2014.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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