Queensland Building and Construction Commission v D Block Constructions Pty Ltd - [2015] QCAT 62

CITATION:

Queensland Building and Construction Commission v D Block Constructions Pty Ltd [2015] QCAT 62

PARTIES:	Queensland Building and Construction Commission (Applicant)
v
D Block Constructions Pty Ltd (Respondent)

APPLICATION NUMBER:

OCR242-14

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

DELIVERED ON:

23 February 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Proper grounds exist for taking disciplinary action against D Block Constructions Pty Ltd pursuant to section 89(j) of the Queensland Building and Construction Commission Act 1991.

2. D Block Constructions Pty Ltd pays to the Queensland Building and Construction Commission a penalty of $3,850 by 4pm on 30 March 2015.

3. D Block Constructions Pty Ltd pays to the Queensland Building and Construction Commission its costs fixed at $1,500 by 4pm on 30 March 2015.

CATCHWORDS:

OCCUPATIONAL REGULATION – DISCIPLINARY PROCEEDINGS – where builder failed to comply with Direction To Rectify – where Queensland Building and Construction Commission issued Notice of Infringement – where Commission paid out statutory claim to rectify Builder’s defective work – where Builder told owner after receiving Notice of Infringement that it would rectify – where Builder did not attempt to rectify and did not comply with Notice of Infringement
COSTS – INTERESTS OF JUSTICE where Builder forced Commission to commence proceedings and then failed to engage with Tribunal process

Penalties and Sentences Act 1992 (Qld) s 5
Queensland Building and Construction Commission Act 1991 (Qld) ss 89, 91
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 102

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 (Qld) (QCAT Act).

REASONS FOR DECISION
What is this Application about?

D Block Constructions Pty Ltd failed to comply with the Queensland Building and Construction Commission’s Direction to Rectify.[1]
[1] Direction To Rectify No. 39626 dated 28 November 2013.
The Commission then issued an Infringement Notice for a penalty of $2,200.[2]
[2] Infringement No. 16772 dated 13 January 2014.
Instead of paying the penalty, D Block belatedly emailed the home owners saying that it “would like to complete” the Direction To Rectify.[3] It never did.
[3] Email Derek Quan to Warren and Lynne dated 14 January 2014.
The Commission then notified D Block of the approval of a claim under the statutory insurance scheme of $4,881.20 to rectify the building work.[4]
[4] Notice Of Debt dated 23 January 2014.
The Commission seeks a penalty to be imposed on D Block for…

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: [2015] QCAT 62
Decision Date: 23 February 2015

CaseChat Overview and Summary

The Queensland Building and Construction Commission brought an action against D Block Constructions Pty Ltd, a builder, for failure to comply with a Direction To Rectify issued by the Commission. The dispute was heard by the Queensland Civil and Administrative Tribunal. The Commission had issued a Notice of Infringement against the builder for non-compliance with the Direction To Rectify, and subsequently paid out a statutory claim to rectify the builder's defective work. Despite being informed of the Notice of Infringement, the builder did not attempt to rectify the work and did not comply with the Notice.

The central legal issues before the court were whether the Commission had proper grounds to take disciplinary action against the builder and whether the builder should be held liable for costs and penalties. The court had to determine if the builder's failure to comply with the Direction To Rectify and the Notice of Infringement justified disciplinary action under the Queensland Building and Construction Commission Act 1991. Furthermore, the court needed to consider whether the builder's conduct warranted an award of costs and penalties to the Commission.

The court found that the Commission did indeed have proper grounds for taking disciplinary action against the builder, as the builder had failed to comply with the Direction To Rectify and the Notice of Infringement. The builder had also forced the Commission to commence proceedings and subsequently failed to engage with the Tribunal process. Consequently, the court awarded costs and penalties to the Commission. The builder was ordered to pay a penalty of $3,850 and costs of $1,500 by a specified date.

The court's decision highlights the importance of builders complying with Directions To Rectify and Notices of Infringement issued by the Queensland Building and Construction Commission. Failure to do so may result in disciplinary action, costs, and penalties being awarded to the Commission. The decision serves as a reminder to builders of their obligations under the Act and the consequences of non-compliance.

Orders

Orders of the court

1. Proper grounds exist for taking disciplinary action against D Block Constructions Pty Ltd pursuant to section 89(j) of the Queensland Building and Construction Commission Act 1991.

2. D Block Constructions Pty Ltd pays to the Queensland Building and Construction Commission a penalty of $3,850 by 4pm on 30 March 2015.

3. D Block Constructions Pty Ltd pays to the Queensland Building and Construction Commission its costs fixed at $1,500 by 4pm on 30 March 2015.

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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