Qiu v Building Professionals Board - [2013] NSWADT 289

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Qiu v Building Professionals Board [2013] NSWADT 289
Hearing dates: 16 August 2013
Decision date: 16 December 2013
Jurisdiction: General Division
Before: Judge K P O'Connor, President
P Hayward, Non-judicial Member
Decision:
Respondent's decision is varied as follows:
1. Mr Qiu is reprimanded.
2. Mr Qiu is fined the sum of $7000, payable within 28 days of receipt of notice of this decision.
3. A condition is imposed on his accreditation requiring him to provide a copy of any complying development certificate he issues within two days of its issuance to an accredited certifier approved by the Board. This condition is to take effect once the Board approves of the accredited certifier, and is to remain operative for two years from the date of the approval. These arrangements are to be made within 60 days of the issuance of this decision.
4. Liberty is given to either party to apply on two days' notice in respect of the terms of the above condition.
5. In the meantime the condition imposed by the stay order requiring Mr Qiu to provide a copy of any complying development certificate he issues to the Board within two days of its issuance is to be continued.

Catchwords: PROFESSIONAL DISCIPLINE - Accredited Certifier - Review of disciplinary decision - standards in relation to issuance of construction certificates in respect of residential development projects - Board finding of unsatisfactory professional conduct - ten allegations found proven - orders of reprimand, fine and suspension from issuing construction certificates for two years - eight of the allegations found proven pressed at review hearing - seven findings upheld - finding of unsatisfactory professional conduct - disciplinary order varied. Building Professionals Act 2005, s 19
Legislation Cited: Administrative Decisions Tribunal Act 1997
Building Professionals Act 2005
Environmental Planning and Assessment Act 1979
Cases Cited: Director General, Department of Fair Trading v Cohen [2000] NSWFTT 3
Director General, Department of Infrastructure, Planning and Natural Resources v Boulle [2006] NSWADT 43
Category: Principal judgment
Parties: Ting Jian Qiu (Applicant)
Building Professionals Board (Respondent)
Representation: J Cotton, Lovegrove Solicitors (Applicant)
A Grey, Building Professionals Board (Respondent)

File Number(s): 133197

reasons for decision

This is an application for review of a disciplinary determination of the Building Professionals Board. The review applicant is Ting ('Tony') Jian Qiu, an accredited certifier, registration no BPB 0333.

Board Determination

On 23 May 2013 the Board disciplinary committee determined, following investigation of a complaint by the investigative staff of the Board, that he had engaged in unsatisfactory professional conduct 'as defined under s 19 of the Building Professionals Act 2005 (BP Act)'. It made disciplinary orders.

The Board's disciplinary jurisdiction is conferred by s 31 of the BP Act which provides:

31 Decision after investigation of complaint

(1) After the Board has completed an investigation into a complaint against an accreditation holder, the complaint is to be dealt with in accordance with this section.

(2) The Board may apply to the…

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 Qiu v Building Professionals Board

Details

AGLC: Qiu v Building Professionals Board [2013] NSWADT 289
Case: [2013] NSWADT 289
Decision Date: 16 December 2013

CaseChat Overview and Summary

The Building Professionals Board sought a review of a decision made against Mr Qiu, an accredited certifier. The Board had found Mr Qiu guilty of unsatisfactory professional conduct in relation to the issuance of construction certificates for residential development projects. Ten allegations were found proven, resulting in a reprimand, a fine, and a suspension from issuing construction certificates for two years. The review hearing considered eight of these allegations, upholding seven of the findings. Consequently, the finding of unsatisfactory professional conduct was maintained, but the disciplinary order was varied.

The key legal issues in this case centred on whether the Board's findings of unsatisfactory professional conduct were justified and whether the penalties imposed were appropriate. The court had to assess whether the evidence supported the Board's findings and whether the penalties were proportionate to the misconduct. Additionally, the court examined whether the conditions imposed on Mr Qiu's accreditation were reasonable and whether the Board's decision to vary the original penalty was justified.

The court found that the Board's findings of unsatisfactory professional conduct were supported by the evidence. However, the court considered the penalties imposed to be excessive. The court varied the original penalty, imposing a reprimand, a fine of $7000, and a condition on Mr Qiu's accreditation that required him to provide a copy of any complying development certificate he issued to an accredited certifier approved by the Board within two days of issuance. This condition was to remain in effect for two years from the date of approval. The court also allowed either party to apply for further review of the terms of this condition. In the interim, the condition imposed by the stay order was to continue.

The court's final orders included a reprimand for Mr Qiu, a fine of $7000, and a condition on his accreditation requiring him to provide copies of any complying development certificates to an approved accredited certifier within two days of issuance, for a period of two years. The court also granted liberty to either party to apply for review of the terms of this condition. The interim condition imposed by the stay order was to remain in place until the Board approved the accredited certifier.

Orders

Orders of the court

Respondent's decision is varied as follows:

1. Mr Qiu is reprimanded.

2. Mr Qiu is fined the sum of $7000, payable within 28 days of receipt of notice of this decision.

3. A condition is imposed on his accreditation requiring him to provide a copy of any complying development certificate he issues within two days of its issuance to an accredited certifier approved by the Board. This condition is to take effect once the Board approves of the accredited certifier, and is to remain operative for two years from the date of the approval. These arrangements are to be made within 60 days of the issuance of this decision.

4. Liberty is given to either party to apply on two days' notice in respect of the terms of the above condition.

5. In the meantime the condition imposed by the stay order requiring Mr Qiu to provide a copy of any complying development certificate he issues to the Board within two days of its issuance is to be continued.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Qiu v Building Professionals Board [2013] NSWADT 289
Hearing dates:	16 August 2013
Decision date:	16 December 2013
Jurisdiction:	General Division
Before:	Judge K P O'Connor, President P Hayward, Non-judicial Member
Decision:	Respondent's decision is varied as follows: 1. Mr Qiu is reprimanded. 2. Mr Qiu is fined the sum of $7000, payable within 28 days of receipt of notice of this decision. 3. A condition is imposed on his accreditation requiring him to provide a copy of any complying development certificate he issues within two days of its issuance to an accredited certifier approved by the Board. This condition is to take effect once the Board approves of the accredited certifier, and is to remain operative for two years from the date of the approval. These arrangements are to be made within 60 days of the issuance of this decision. 4. Liberty is given to either party to apply on two days' notice in respect of the terms of the above condition. 5. In the meantime the condition imposed by the stay order requiring Mr Qiu to provide a copy of any complying development certificate he issues to the Board within two days of its issuance is to be continued.
Catchwords:	PROFESSIONAL DISCIPLINE - Accredited Certifier - Review of disciplinary decision - standards in relation to issuance of construction certificates in respect of residential development projects - Board finding of unsatisfactory professional conduct - ten allegations found proven - orders of reprimand, fine and suspension from issuing construction certificates for two years - eight of the allegations found proven pressed at review hearing - seven findings upheld - finding of unsatisfactory professional conduct - disciplinary order varied. Building Professionals Act 2005, s 19
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Building Professionals Act 2005 Environmental Planning and Assessment Act 1979
Cases Cited:	Director General, Department of Fair Trading v Cohen [2000] NSWFTT 3 Director General, Department of Infrastructure, Planning and Natural Resources v Boulle [2006] NSWADT 43
Category:	Principal judgment
Parties:	Ting Jian Qiu (Applicant) Building Professionals Board (Respondent)
Representation:	J Cotton, Lovegrove Solicitors (Applicant) A Grey, Building Professionals Board (Respondent)
File Number(s):	133197