QBSA v Flowtech Hydraulics Pty Ltd - [2013] QCAT 517

CITATION:

Queensland Building Services Authority v Flowtech Hydraulics Pty Ltd [2013] QCAT 517

PARTIES:	Queensland Building Services Authority
v
Flowtech Hydraulics Pty Ltd

APPLICATION NUMBER:

OCR076-13

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Bevan Hughes, Member

DELIVERED ON:

2 October 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. That Flowtech Hydraulics Pty Ltd pays to the Queensland Building Services Authority a penalty of $7,500 by 4pm on 4 November 2013.

2. That Flowtech Hydraulics Pty Ltd pays to the Queensland Building Services Authority its costs fixed at $1,500 by 4pm on 4 November 2013.

CATCHWORDS:

Exceeding Annual Allowable Turnover – where significantly exceeded – two breaches in consecutive years – delay in prosecuting – risk to public – period of licence - costs

Queensland Building Services Authority Act 1991 ss 89(a) and (k), 91(3)
Penalties and Sentences Act 1992 s 5

Queensland Building Services Authority v Alternate Dwellings Pty Ltd [2011] QCAT 460
Queensland Building Services Authority v Battaglia Pty Ltd [2012] QCAT 3
Queensland Building Services Authority v Bellero Constructions Pty Ltd [2004] QCCTB 60
Queensland Building Services Authority v Built Qld Pty Ltd [2005] QCCTB 152

Queensland Building Services Authority v C-View Windows Pty Ltd [2011] QCAT 211

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

What is this Application about?

Flowtech Hydraulics Pty Ltd exceeded its Allowable Annual Turnover (AATO) in two consecutive financial years. In 2009-10, Flowtech exceeded its AATO by $14,558,739 or 135.72 percent. In 2010-11, Flowtech exceeded its AATO by $12,841,183 or 77.1 percent.
By failing to notify or obtain the consent of the Queensland Building Services Authority, Flowtech breached its builder…

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.

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Details

Case: [2013] QCAT 517
Decision Date

CaseChat Overview and Summary

The Queensland Building Services Authority (QBSA) brought an application against Flowtech Hydraulics Pty Ltd for exceeding its Allowable Annual Turnover (AATO) in two consecutive financial years. The Tribunal found that Flowtech breached its builder licence requirements by exceeding its AATO without notifying QBSA or obtaining its consent. The breaches occurred in the 2009-10 and 2010-11 financial years, with Flowtech exceeding its AATO by $14,558,739 or 135.72 percent and $12,841,183 or 77.1 percent, respectively. The Tribunal considered various factors, including Flowtech's history, steps taken to prevent recurrence, and the nature and extent of the breaches. The Tribunal found that the breaches were not intentional and resulted from unpredicted and unprecedented growth in revenue, coupled with a failure in internal procedures. The appropriate penalty was determined to be $7,500, considering the factors and comparable previous decisions. The Tribunal also ordered Flowtech to pay QBSA's costs of $1,500.

The Tribunal's decision was based on the relevant factors and previous decisions that considered similar circumstances. Flowtech's breaches were not intentional, and the company had taken steps to prevent recurrence, such as employing an in-house chief financial officer and implementing recommendations from an independent business review. The breaches were substantial, but the Tribunal considered the delay in prosecuting the breaches and Flowtech's Net Tangible Assets at the time of the breaches. The penalty range was determined to be $6,000 to $8,000, but the Tribunal found that the appropriate penalty for this case was $7,500. The Tribunal also considered the costs incurred by QBSA in preparing the application and determined that a modest amount of $1,500 was reasonable.

Orders