Gerhardt v Queensland Building & Construction Commission - [2014] QCAT 139

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
R v Sheehan [1999] QCA 461

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gerhardt v Queensland Building & Construction Commission

Details

AGLC: Gerhardt v Queensland Building & Construction Commission [2014] QCAT 139
Case: [2014] QCAT 139
Decision Date: 10 April 2014

CaseChat Overview and Summary

In the matter of Gerhardt v Queensland Building & Construction Commission, the Queensland Civil and Administrative Tribunal (QCAT) was tasked with determining whether a private certifier, Trevor Gerhardt, engaged in unsatisfactory conduct by issuing a building approval based on plans that differed from those approved in the development approval process. The certifier subsequently issued a final certificate that also deviated from the approved plans. The Queensland Building and Construction Commission brought the complaint, seeking a determination on the alleged unsatisfactory conduct and potential breaches of statutory obligations under the Building Act.

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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