Queensland Building and Construction Commission v Weber (No 2)
[2014] QCAT 532
•28 October 2014
| CITATION: | Queensland Building and Construction Commission v Weber (No 2) [2014] QCAT 532 |
| PARTIES: | Queensland Building and Construction Commission (Applicant) |
| v | |
| Harald Weber (Respondent) |
| APPLICATION NUMBER: | OCR263-13 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 13 October 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Browne |
| DELIVERED ON: | 28 October 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Harald Weber is reprimanded. 2. For a period of six (6) months from the date of this order Harald Weber is to provide a monthly list of development approvals to the Queensland Building and Construction Commission for the purpose of auditing. 3. Harald Weber is to pay the Queensland Building and Construction Commission a penalty of $6,600.00 (60 penalty units) within 21 days from the date of this order. |
| CATCHWORDS: | OCCUPATIONAL REGULATION – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT BY CERTIFIER – where previous finding that certifier’s conduct constituted professional misconduct – appropriateness of sanction to be imposed – whether discretion to make an order under s 211(4) should be exercised Building Act 1975 (Qld), s 208, s 211 |
REPRESENTATIVES:
| APPLICANT: | Mr Simon Formby, in-house legal counsel for the Queensland Building and Construction Commission |
| RESPONDENT: | Mr Brett Heath, solicitor of Carter Newell Lawyers |
REASONS FOR DECISION
On 9 September 2014 the Tribunal made findings that proper grounds exist for taking disciplinary action under s 208 of the Building Act 1975 (Qld) (‘the Building Act’) against Mr Weber. The Tribunal found that Mr Weber’s conduct in relation to performing private building certification work for a private dwelling at Lot 151 Forrest Close, Kuranda (‘the property’) was professional misconduct.
The disciplinary proceedings arise out of a complaint made to the Queensland Building and Construction Commission (‘the QBCC’) by the owners of the property. Mr Weber was the certifier responsible for inspecting the frame of the property and issuing a final inspection of the property conducted on 16 September 2010.
The Tribunal made the following orders on 9 September 2014:[1]
[1]Queensland Building and Construction Commission v Weber [2014] QCAT 448.
1.Proper grounds exist for the taking of disciplinary action under s 208 of the Building Act 1975 (Qld) against Harald Weber as he has behaved in a way that constitutes professional misconduct by:
(i)Engaging in the following conduct:
(a)formulating and assessing an alternative solution that did not comply with s 26 of the Building Act 1975 (Qld) and Parts 1.0.9 and 1.0.10 of the Building Code of Australia;
(b)issuing a development approval for building works when Mr Weber had formulated and assessed the alternative solution in breach of s 137 of the Building Act 1975 (Qld);
(c)failing to inspect work performed in respect of flashings over the windows and doors of the property as required by the ‘guidelines for inspection of Class 1(a) and 10 buildings and structures’ and s 24 of the Building Regulation 2006 (Qld);
(d)accepting an incorrectly and/or inadequately completed form 16 certificate from the builder in relation to waterproofing of the wet areas of the bathroom in breach of item 8 of the Code of Conduct for building certifiers;
(ii)Breaching items 1,3,8,9 and 10 of the Code of Conduct for building certifiers having engaged in certain conduct particularised in paragraph (i) (a), (b), (c) and (d) above.
On 9 September 2014 the Tribunal made directions for the filing and exchange of further submissions in relation to the appropriateness of penalty to be imposed. The application was listed for a hearing on 13 October 2014 and the QBCC and Mr Weber through their legal representatives were invited to make oral submissions at the hearing.
The Tribunal’s power to make an order
The Tribunal has the power under s 211 of the Building Act to make an order in circumstances where it decides that proper grounds exist for taking disciplinary action against a building certifier.
The orders that the Tribunal may make under s 211 of the Building Act include, amongst others:
· an order reprimanding the building certifier;
· imposing conditions considered to be ‘appropriate’ on the certifier’s licence;
· directing the certifier to complete education courses;
· directing the certifier to report on his or her practice as a building certifier;
· suspending the certifier’s licence;
· cancelling the certifier’s licence; or
· disqualifying, indefinitely or for a stated period, the certifier from obtaining a licence as a building certifier from the QBCC.
The Tribunal also has the power under s 211(4) of the Building Act to make an order that the certifier pay an amount ‘sufficient to rectify or complete work’. Section 211(4) provides:
s 211 Orders relating to current building certifier
…
(4)The Tribunal may, in relation to building work that is defective or incomplete as a result of the professional misconduct, make an order that the building certifier-
(a)at the building certifier’s cost, have the work rectified or completed by a person who is appropriately licensed; or
(b)pay the complainant or another person an amount sufficient to rectify or complete the work.
The QBCC in written submissions filed[2] and oral submissions made at the hearing invites the Tribunal to make orders under s 211 of the Building Act as follows:
a) Mr Weber be reprimanded for his conduct.
b) That conditions be imposed on Mr Weber’s licence in relation to providing a monthly list of development approvals to the QBCC for the purpose of auditing for a period of six (6) months from the date of the Tribunal’s order.
c) A monetary penalty be imposed that is appropriate in the circumstances.
d) An order be made under s 211(4)(b) of the Building Act that Mr Webber pay to the QBCC the amount of $56,525.20 plus interest from 12 October 2012.[3]
[2]Commission’s Submissions on Penalty filed on 25 September 2014 and Submissions on behalf of the applicant dated 30 January 2014.
[3]At the rate of 6.75% as determined by the Tribunal in Queensland Building Services Authority v Chandra & Anor [2013] QCAT 628 at [66] the Tribunal allowed interest at a rate of 6.75% being the rate applicable to default judgments in minor civil dispute matters (QCAT Practice Direction No 9 of 2013).
The amount sought by the QBCC by way of compensation under s 211(4)(b) of the Building Act comprises the amount of $53,419.20 paid by the QBCC to rectify the building work under the Statutory Home Warranty Scheme by virtue of s 20(j)(f) of the Queensland Building and Construction Commission Act 1991 (Qld) (the QBCC Act). The QBCC also claim the amounts of $2,380.00 and $726.00 representing rental costs paid by the QBCC to accommodate the home owners during rectification of the building work. The QBCC abandoned its claim for costs of the proceedings under s 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) at the hearing on 13 October 2014.
In oral submissions made at the hearing, Mr Formby on behalf of the QBCC submits that Mr Weber’s conduct is more serious because of the finding of conflict of interest in relation to formulating and assessing an alternative solution. Mr Formby submits that the following should be taken into consideration by the Tribunal in determining the appropriateness of any penalty to be imposed:
a) Mr Weber failed to identify or inspect the work;
b) Mr Weber failed to comply with the Code of Conduct;
c) Mr Weber certified his own alternative solution.
Mr Weber in written submissions filed[4] and oral submissions made at the hearing by his legal representative Mr Heath concedes that it is appropriate for the Tribunal to reprimand Mr Weber. Mr Weber also accepts that it is appropriate to make an order that requires Mr Weber to provide a monthly list of development approvals to the QBCC for a period of six (6) months for auditing.
[4]Respondent’s submissions on penalty filed on 8 October 2014.
In relation to a penalty that may be imposed by the Tribunal, Mr Weber submits that the Tribunal take into consideration relevant matters including: an assessment of the gravity of the conduct; protection of consumers; preventing a repetition of the offence and deterring others; the number of offences; the monetary value involved in the offences and profit gained; motivation behind the offences; and any evidence of reparation and remorse.[5] Mr Weber also submits that any penalty that is to be imposed should ‘sit’ at the lower end of the range having regard to the relevant matters of consideration and authorities presently before the Tribunal where a penalty was imposed against a building certifier.[6]
[5]Ibid, para 25.
[6]Ibid, para 70.
Previous history of conduct
Mr Weber has a history of unsatisfactory conduct. Particulars of six (6) previous findings of unsatisfactory conduct in 2006, 2012 and 2013 were particularised in written submissions prepared and filed by the QBCC as follows:[7]
[7]Submissions on behalf of the applicant dated 30 January 2014, [39].
Date of Decision
Nature of complaint
Finding
Outcome
Other information
22/02/2006
Construction was inconsistent with development approval.
Unsatisfactory conduct
Reprimand
27/08/2012
Approved fence without proof of structural adequacy.
Unsatisfactory conduct
Reprimand
27/12/2012
Storm water pipe encroached over boundary
Unsatisfactory conduct
Reprimand
15/10/2012
Balustrades did not meet Building Code of Australia requirements
Unsatisfactory conduct
Reprimand and Licence condition
Licence condition stated for 6 months the certifier was to seek inspection help for any balustrade that required inspection
31/07/2013
Approved fence 2.2m tall without Development Approval from the local government
Unsatisfactory conduct
Reprimand and ensure certification
14/10/2013
Building Approval inconsistent with Material Change of Use Approval
Unsatisfactory conduct
Reprimand
The Tribunal was informed at the hearing by Mr Heath representing Mr Weber, that there were more recently two (2) further findings of unsatisfactory conduct in 2014. The QBCC later provided the Tribunal with a copy of Mr Weber’s licensing information that included particulars of his recent unsatisfactory conduct as a follows:
· 13 February 2014 – finding of unsatisfactory conduct - conduct that was contrary to the standards of conduct and professionalism whereby a Building Certifier must comply with legislative requirements and must not perform building certifying functions where there is a potential for a conflict of interest. Results: reprimand, direction and ensure certification.
· 28 February 2014 – finding of unsatisfactory conduct – incorrectly issued the Form 21 Final Inspection Certificate when some of the external walls of the dwelling were not waterproof. Results: reprimand.
Other matters relevant to conduct
As previously detailed in the Tribunal’s reasons for decision dated 9 September 2014, Mr Weber is a licenced building certifier with approximately 20 years experience in the industry of development approval endorsement. Mr Weber has conducted business in the Far North Queensland region having established his business All Construction Approvals in about November 2000.
Mr Weber has issued approximately 25,000 certifications or approvals since commencing operation, for buildings including sheds, units, warehouses, offices and residential dwellings.[8] In written submissions filed Mr Weber estimates that he has personally completed approximately 12,500 development approvals or certifications since he commenced work as a qualified certifier.
[8]Respondent’s submissions on penalty dated 8 October 2014 at [15].
There is evidence before the Tribunal in relation to the completion of professional development courses by Mr Weber relevant to the issue of whether he should be directed to complete educational courses under s 211 of the Building Act. Mr Heath, on behalf of Mr Weber, submits that a building certifier is required to complete 90 hours of professional development over 3 years with a minimum of 20 hours each year and a maximum of 50 hours each year. The completion of the professional development courses or training is monitored by the Australian Institute of Building Surveyors. Mr Heath submits that Mr Weber is discharging and exceeding the professional development requirements. The QBCC in oral submissions made at the hearing does not dispute that Mr Weber has completed the professional development requirements for a building certifier.
Mr Weber in written submissions filed submits that there is evidence before the Tribunal of remorse and cooperation with the disciplinary proceedings. Mr Weber, in written submissions submits that his remorse is ‘evidenced by the steps he has undertaken since the QBCC decision to ensure that this type of conduct is not repeated’.[9] Mr Weber also submits that he did not contest the QBCC’s finding of professional misconduct and has assisted the QBCC ‘where possible’ and refers to providing files in a timely manner. Mr Weber also contends that he has ‘acknowledged that there were inadequacies with the processes he undertook in certifying the property’.[10]
[9]Ibid, para 40.
[10]Ibid, para 39.
Mr Weber submits in written submissions filed that the party responsible for the defective work at the property was the builder and not Mr Weber.[11] Mr Weber also submits that there was no ‘monetary gain’ in relation to his conduct and his ‘professed aim was primarily to assist the owner and the builder to have the property certified with the minimum time and expense possible’.[12]
[11]Ibid, para 41.
[12]Ibid, para 37.
Mr Weber also contends that the reason for the conduct was an ignorance of the applicable rules and a ‘failure to adequately supervise’ a cadet with 3 years experience, Mr Nesbit, employed by All Construction Approvals.[13]
[13]Ibid, para 38.
As detailed in the Tribunal’s reasons dated 9 September 2014, Mr Nesbit inspected the property in particular the bathroom on 16 September 2010. Mr Weber relied on information given to him by Mr Nesbit about the property.
What is the appropriate penalty to be imposed?
The Tribunal’s power in disciplinary proceedings and in exercising the power under s 211 of the Building Act are not punitive in nature but are ‘protective’.[14]
[14]Queensland Building Services Authority v Nelson [2007] QCCTB 71, at [48], see New South Wales Bar Association v Ebbert (1968) 117 CLR 177 at 183.
It was determined in the 2009 decision of Queensland Building Services Authority v Chandra[15] in considering whether a penalty should be imposed that the interests of the public should be protected. The former Commercial and Consumer Tribunal determined:
The public persona of a private certifier is of a professional who is meticulous and knowledgeable about what is required. They are, as I have said, the last line of defence against sub-standard and shoddy building practices. A great deal of trust is therefore reposed in them by the community. … Indeed the impression I had was that, if a significant penalty was not imposed, then it would (if not immediately, then at a time) be business as usual, as it were. That is not in the interests of, nor is it protecting, the public.
I consider, in this instance, the message has to be imparted by way of deterrence that, if a private certifier holds the privilege of being able to practice, with the considerable responsibility and trust that that imposes, then nothing less than full and complete application to any certification task, without shortcuts, is required.[16]
[15]Queensland Building Services Authority v Chandra [2009] QCCTB 203.
[16]Ibid, at [133] to [134].
I do not accept the submissions made by Mr Heath on behalf of Mr Weber that Mr Weber’s conduct in respect of these proceedings is at the lowest level of conduct. This submission was made in the context of considering other relevant decisions where a penalty was imposed against a building certifier including the 2013 decision of Queensland Building Services Authority v Chandra & Anor.[17]
[17][2013] QCAT 628.
It is accepted by the parties that the 2013 decision of Queensland Building Services Authority v Chandra & Anor[18] is relevant to disciplinary proceedings concerning a building certifier as the matter involves conduct that may be regarded at the higher standard. In Queensland Building Services Authority v Chandra & Anor[19] the Tribunal determined that Mr Chandra in performing his building and private certifying functions engaged in conduct that:
(a)showed incompetence and lack of adequate judgment, integrity, diligence and care in performing building certifying functions; and
(b)compromised the health of a person and the amenity of a person’s property; and
(c)was contrary to a function under the Building Act and the IPA by:
(i)disregarding appropriate matters; and
(ii)contravening the Code of Conduct.[20]
[18][2013] QCAT 628.
[19][2013] QCAT 628.
[20]Queensland Building Services Authority v Chandra & Anor [2013] QCAT 628, [26].
In the 2013 decision of Chandra the Tribunal ordered that Mr Chandra never be re-licensed as a building certifier, that he pay a penalty in the amount of $10,000 and pay the complainant home owner the sum of $44,522.31 being the amount required to rectify the building work plus interest. The Tribunal stated the following in relation to the disciplinary proceedings relevant to Mr Chandra’s conduct:
I have little difficulty finding that Mr Chandra was guilty of professional misconduct. He appears to have taken a rather cavalier attitude in applying himself to his role of registered certifier. There was strong evidence to suspect that the earlier work had not been lawfully approved, yet, Mr Chandra, although initially appearing to show some concern, quickly forgot about it. On the other hand he made demands for inspection certificates and reports but again failed to follow up. One gains the strong impression that it was all for show and that there was little substance to his investigations. In my opinion, Mr Chandra’s conduct was incompetent and lacking in integrity. As a consequence, his conduct compromised the amenity of [the home owners] property for some considerable time and put [the home owner] and his family to considerable inconvenience and expense. I have no hesitation finding that there are proper grounds for taking disciplinary action against Mr Chandra.[21]
[21]Ibid, [52].
I have in this matter carefully considered the Tribunal’s reasons dated 9 September 2014. Mr Weber’s conduct although not as serious as the conduct in the 2013 decision of Queensland Building Services Authority v Chandra & Anor,[22] is not conduct at the lower end of the scale as submitted by Mr Heath. The Tribunal has determined, in the reasons dated 9 September 2014, that Mr Weber failed to: take appropriate steps to properly inspect work, make further enquiries when necessary, maintain knowledge of the applicable rules and relevant standards; and comply with legislative requirements such as not to perform a function that would be a conflict of interest for the purposes of s 137 of the Building Act.[23]
[22][2013] QCAT 628.
[23]Queensland Building and Construction Commission v Weber [2014] QCAT 448, [121] to [124].
Mr Weber submits that the reason for the conduct as stated in the Tribunal’s decision made on 9 September 2014 was to ‘minimise costs and expense to the builder and owner and an ignorance of the applicable rules; or a failure to adequately supervise Mr Nesbit a cadet supervisor with 3 years experience’.[24]
[24]Queensland Building and Construction Commission v Weber [2014] QCAT 448, at [121].
Mr Weber’s good intentions in relation to the conduct should not otherwise detract him from the duties and responsibilities he has as a building certifier with several years experience. The Tribunal determined on 9 September 2014:
It is expected that a person suitably qualified as a building certifier would have knowledge of relevant legislation and standards including the Australian Standard that sets criteria for wet areas within residential buildings and gives minimum requirements for materials, designs and installation. Mr Weber has failed to keep himself informed of relevant standards and legislative requirements including the appropriate steps that should be taken by a builder certifier when presented with building work that does not comply with the development approval.[25]
[25]Ibid, [123].
I have considered the submissions made by the QBCC and Mr Weber in relation to the appropriateness of the penalty to be imposed. I am satisfied that a reprimand is appropriate in the circumstances. I am also satisfied that imposing conditions that require Mr Weber to provide a monthly list of development approvals to the QBCC for the purpose of auditing for a period of six (6) months from the date of this decision is also appropriate.
The Tribunal has been referred to various authorities in relation to the appropriateness of any monetary penalty to be imposed. I have also considered the submissions made including Mr Weber’s written submission that a monetary penalty ‘would serve no public benefit and would be purely punitive in nature’.[26]
[26]Respondent’s submissions on penalty filed on 8 October 2014, para 89.
I am satisfied that a monetary penalty is appropriate in this matter. A monetary penalty will be effective as a deterrent to other building certifiers particularly in relation to the standard that is expected by a certifier and the importance of s 137 of the Building Act that requires a private certifier to not perform a certifying function if in performing the function the certifier has a conflict of interest. The maximum monetary penalty that may be imposed by the Tribunal is equivalent to 80 penalty units under s 211(5) of the Building Act.[27] I have considered below some of the relevant authorities where a monetary penalty was imposed by the Tribunal and the former Commercial and Consumer Tribunal.
[27]A penalty unit under the Penalties and Sentences Act 1992 as at 1 October 2014 is $110.00.
In the decision of Queensland Building Services Authority v Wilkins,[28] the Tribunal ordered that the building certifier be fined $4,000.00 representing a penalty of 40 penalty units. The Tribunal considered that the building certifier (Mr Wilkins) was remorseful, had been cooperative and that there were significant consequences in relation to the circumstances of what was described by the Tribunal as ‘a most unfortunate chain of events’ that led to the drowning of a young child.[29]
[28][2012] QCAT 582.
[29]Queensland Building Services Authority v Wilkins [2012] QCAT 582, [20].
In the decision of Queensland Building Services Authority v Nelson[30] the Tribunal imposed a penalty of $2,000.00. The Tribunal was satisfied that the building certifier had demonstrated remorse. The Tribunal determined that the building certifier ‘did not act deliberately but rather had a poor appreciation of his obligations as a certifier and demonstrated a lack of care and diligence in carrying out his duties’.[31] The Tribunal also considered that the building certifier’s conduct had ‘potentially serious consequences for the homeowner’.[32]
[30][2007] QCCTB 71.
[31]Ibid, at [51].
[32]Ibid.
In the 2010 decision of Queensland Building Services Authority v Chandra[33] the Tribunal imposed a penalty of $12,000.00. The Tribunal considered that Mr Chandra had been previously ordered to pay a penalty of $7,500.00 following misconduct proceedings that led to a suspension of his licence in 2009. The Tribunal determined that Mr Chandra ‘has not accepted full responsibility for the conduct that led to the findings of unsatisfactory conduct and professional misconduct, in that he continues to suggest reasons that others are partly to blame, at a stage when the only matters in issue are penalty and costs’.[34]
[33][2010] QCAT 451.
[34]Ibid, [32].
In the more recent 2013 decision of Queensland Building Services Authority v Chandra[35] the Tribunal referred to Mr Chandra’s conduct that involved an ‘extensive history of professional misconduct and unsatisfactory conduct’. The Tribunal imposed a penalty of $10,000.00 and Mr Chandra was ordered to pay an amount required to rectify the work under s 211(4)(b) of the Building Act plus interest to the home owners.[36] In ordering the amount to be paid to the home owners the Tribunal considered the ‘reasonableness’ of the amount claimed by way of rectification costs. Member King-Scott stated:
It is reasonable that Mr Chandra pay for the costs of rectification claimed on the complaint’s behalf. The total cost of repairing the damage and rectifying the cause of the water penetration amounted to $42,722.31. That amount does not include [the homeowner’s] personal labour, time off work, holiday and long service leave expended….Having heard [the homeowner] give evidence, I have no hesitation, whatsoever, in accepting the truthfulness of his evidence, and I would allow the further sum of $1,800 in the absence of receipts. I assess the cost at $44,522.31.[37]
[35][2013] QCAT 628.
[36]Ibid, [64].
[37]Ibid, [64].
In this case I am satisfied that Mr Weber has cooperated with the QBCC in relation to the disciplinary proceedings for the purposes of the Tribunal being able to determine the issue of conduct on the papers without an oral hearing. I have considered the submissions made by Mr Weber in relation to the ‘measures’ including practices that he states have been put in place by him since the disciplinary proceedings to ensure that this type of ‘conduct’ does not happen in the future. Mr Weber in written submissions refers to the following steps taken by him:
a) Scrutinising the work of cadet certifiers to a greater level;
b) Requiring cadet certifiers to provide him with photographs of properties when they are undertaking a final inspection;
c) Updating checklists where Mr Weber has been advised by the QBCC that his current processes are deficient; and
d) Advising all employees of All Construction Approvals of the proper steps to be taken when presented with building work that does not comply with a development approval.[38]
[38]Respondent’s submissions on penalty filed on 8 October 2014, para 33.
I accept that Mr Weber is presently complying with his professional development requirements as a certifier as submitted by Mr Heath at the oral hearing. I have also considered Mr Weber’s previous history in relation to the eight (8) findings of unsatisfactory conduct; and the consequences that flow from his conduct. As determined by the Tribunal in the reasons dated 9 September 2014:
Mr Weber as the certifier has relied on information given to him by Mr Nesbit that was clearly inadequate. There are consequences that flow from Mr Weber’s conduct including presenting a risk to health and safety of occupants of the property in using the bathroom and damage to the internal walls of the property as a result of water penetration.[39]
[39]Queensland Building and Construction Commission v Weber [2014] QCAT 448, [119].
Taking into consideration all of the relevant matters I am satisfied that a monetary penalty of 60 penalty units presently valued at $110.00 per penalty unit is appropriate.
The Tribunal’s power to make an order under s 211(4) of the Building Act
The Tribunal has a discretion under s 211(4)(b) of the Building Act to make an order that the building certifier pay another person an amount sufficient to rectify or complete defective or incomplete work.
The Tribunal’s power under s 211(4)(b) of the Building Act must be considered in context of s 211(1) that provides that the Tribunal ‘may make 1 or more of the orders mentioned in subsections (2) to (7)’. The Tribunal in exercising a discretionary power must be satisfied that it is appropriate in all of the circumstances of the matter for the order to be made.
The Tribunal’s power to determine whether proper grounds exist for taking disciplinary action against a building certifier and in making an order under s 211 of the Building Act involves an exercise of the Tribunal’s original jurisdiction by virtue of s 9(2) of the QCAT Act. Relevantly s 9(4) of the QCAT Act provides that ‘the Tribunal may do all things necessary or convenient for exercising its jurisdiction’.
The QBCC seeks an order under s 211(4)(b) of the Building Act for the payment of ‘an amount’ that, as submitted, is an ‘amount sufficient to rectify or complete work’.
The amount claimed by the QBCC comprises of money already paid by the QBCC in relation to rectification of the building work under the Statutory Home Warrant Scheme by virtue of the QBCC Act. The money paid by the QBCC also includes an amount for rental costs paid to accommodate the home owner during rectification of the building work plus interest.[40]
[40]The claim for interest is also made under s 211(7) of the Building Act.
The amount claimed by the QBCC under s 211(4)(b) of the Building Act is disputed by Mr Weber. Mr Heath in oral submissions made at the hearing contends that the QBCC is effectively seeking to recover a statutory debt as recognised under the QBCC Act in circumstances where there is express power under the QBCC Act to recover money paid under the insurance scheme.
Mr Heath also raises an issue of procedural fairness in that he contends Mr Weber was not afforded the opportunity to be included in the process in relation to the rectification of the building work under the QBCC Act including for example being given an opportunity to respond to any direction to rectify that may have been issued by the QBCC under the QBCC Act.
Mr Heath raises a further issue in relation to causation in that he contends there is no sufficient causal connection between the conduct of Mr Weber in certifying the building work and the loss in relation to the amount paid for rectification of the defective works. Mr Heath submits that had Mr Weber acted appropriately and rejected the building work performed by the builder then it would have been necessary for the building work to be rectified in any event.
What is the QBCC’s power to recover the amount claimed under the QBCC Act?
The QBCC has the power to pay money for rectification of building work under the insurance scheme by virtue of the QBCC Act. The QBCC is a regulatory body established by virtue of the QBCC Act to ‘administer [the QBCC Act] and further its objects’.[41] Section 3 of the QBCC Act provides the objects of the Act as follows:
[41]QBCC Act s 7.
3Objects of Act
The objects of this Act are—
(a)to regulate the building industry—
(i)to ensure the maintenance of proper standards in the industry; and
(ii)to achieve a reasonable balance between the interests of building contractors and consumers; and
(b)to provide remedies for defective building work; and
(c)to provide support, education and advice for those who undertake building work and consumers.
Part 5 of the QBCC Act includes provisions relevant to the ‘Queensland Home Warranty Scheme’ that provides insurance cover for residential construction work. The QBCC has the power to make payments under the insurance scheme as appropriate by virtue of s 20(j)(f) of the QBCC Act and to ‘seek tenders’ for carrying out building work that is defective or incomplete under s 74.
There is no requirement under the QBCC Act for the QBCC to issue a direction to rectify prior to making a payment under the insurance scheme. Section 74 of the QBCC Act gives the QBCC the power to ‘seek tenders’ for carrying out the work without issuing a direction to rectify. Section 74(2) of the QBCC Act provides:
s74 Tenders for rectification work
(2)The commission must also seek tenders for carrying out building work if the commission –
(a)is of the opinion that the building work is defective or incomplete; but
(b)has decided not to give a direction under section 72 for the rectification of the building work.
The QBCC has the power under s 71 and s 93 of the QBCC Act to recover the amount of any payment made under the insurance scheme. Relevantly s 71(1) provides that the QBCC may ‘recover the amount of the payment, as a debt, from the building contractor by whom the relevant residential construction work was, or was to be, carried out or any other person through whose fault the claim arose’.
It was determined by the Court of Appeal in Queensland Building and Construction Commission v Lifetime Securities (Australia) Pty Ltd & Anor,[42] that the QBCC has a right to recover under s 71(1) of the QBCC Act that is not ‘conditioned upon the legal quality of any step that QBCC may have taken antecedent to a decision to make payments under the scheme’.[43]
[42][2014] QCA 161. See also Mahoney v Queensland Building Services Authority [2013] QCA 323.
[43]Ibid, p 9.
I accept the submissions made by Mr Heath that s 71 of the QBCC Act confers power on the QBCC to recover the money paid under the insurance scheme and that this is an ‘express right’ to recover the money as a ‘debt’ as determined by the Court of Appeal in Queensland Building and Construction Commission v Lifetime Securities (Australia) Pty Ltd & Anor.[44]
[44]Ibid.
Should the Tribunal make an order under s 211(4)(b) of the Building Act?
I am satisfied that the QBCC is a ‘person’ for the purposes of s 211(4)(b) of the Building Act for whom the Tribunal can order an amount of money ‘sufficient to rectify’ should be paid.
I am also satisfied that for the purposes of s 211(4)(b) of the Building Act there is building work completed by the builder that is ‘defective’ as a result of the professional misconduct. There are consequences that flow from Mr Weber’s conduct including building work that is not compliant and is defective. Mr Weber’s conduct as a private certifier that attracts disciplinary proceedings concerns, amongst others, a failure by him to properly inspect building work and to make enquiries. Mr Weber did not personally inspect the building work and relied on information given to him by his cadet, Mr Nesbit. The Tribunal made findings on 9 September 2014 in relation to the consequences that flow from Mr Weber’s conduct including ‘presenting a risk to the health and safety of the occupants of the property in using the bathroom and damage to the internal walls of the property as a result of water penetration’.[45]
[45]Queensland Building and Construction Commission v Weber [2014] QCAT 448, [119].
I have also considered whether the amount paid by the QBCC including the rental costs is an amount sufficient to rectify the defective work. There is evidence before the Tribunal relied upon by the QBCC in relation to the amount claimed under s 211(4)(b) of the Building Act including the ‘scope of works’ for the payment made under the insurance scheme and evidence of the money having been paid including rental costs.[46] Mr Formby on behalf of the QBCC submits that the payment made under the insurance scheme is for the purposes of s 211(4)(b) of the Building Act ‘an amount sufficient to rectify the work’. I accept this submission.
[46]See the Affidavit of Michael Roy Pehrson sworn 23 May 2014.
I am not satisfied however that the Tribunal’s discretion to make an order under s 211(4) of the Building Act should be exercised for the following reasons:
a) It is not appropriate to make an order in the present circumstances having considered all of the matters in relation to Mr Weber’s previous history of conduct and other matters relevant to the suitability of any penalty to be imposed. The purpose of disciplinary proceedings is not punitive in nature and it is not appropriate in this matter to order that Mr Weber pay the costs of rectification of the building work having considered the appropriateness of the penalty to be imposed as set out at paragraphs [30], [37], [38] and [39] of these reasons; and
b) It is not appropriate to make an order under s 211(4)(b) of the Building Act in circumstances where there is an express power under s 71 of the QBCC Act given to the QBCC to recover the amount of any payment made under the insurance scheme as a ‘debt’ from the building contractor or any other person ‘through whose fault the claim arose’.
I make orders in relation to penalty to be imposed as determined at paragraphs [30] and [39] of these reasons that: Mr Weber be reprimanded; that Mr Weber for a period of six (6) months from the date of this order provide a monthly list of development approvals to the QBCC for auditing purposes; and Mr Weber pay a fine of 60 penalty units in the amount of $6,600.00.
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