Queensland Building Services Authority v Bencee Pty Ltd - [2013] QCAT 687

CITATION: Queensland Building Services Authority v Bencee Pty Ltd [2013] QCAT 687

PARTIES:
Queensland Building Services Authority

(Applicant)

v

Bencee Pty Ltd

(Respondent)

APPLICATION NUMBER: OCR142-13

MATTER TYPE: Occupational regulation matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Member Bayne

DELIVERED ON: 14 November 2013

DELIVERED AT: Brisbane

ORDERS MADE:
1. Bencee Pty Ltd pays to the Queensland Building Services Authority a penalty of $11,000 by 3 February 2014.

2. Bencee Pty Ltd pays to the Queensland Building Services Authority its costs fixed at $1,500 by 3 February 2014.

CATCHWORDS:
Exceeding Annual Allowable Turnover – two breaches – timely warning – large sized company – no evidence of management controls in place – costs penalty

Queensland Building Services Authority Act 1991 ss 89(a) and (k), 91(3)

Queensland Building Services Authority v Battaglia Industries Pty Ltd [2012] QCAT 3
Queensland Building Services Authority v Classic Brick & Block Pty Ltd [2011] QCAT 130

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.
REASONS FOR DECISION
What is this Application about?
[1]In 2008-2009, Bencee Pty Ltd had an Allowable Annual Turnover of $3,246,918 and an actual turnover of $4,755,235.
[2]Two years later in 2010-2011, Bencee had an AATO of $7,000,012 and an actual turnover of $12,363,412.
[3]On both occasions, Bencee neither notified the Authority that it was likely to exceed the AATO by more than 10%, nor did it obtain the Authority’s consent to exceed it.
[4]The parties agree, and the Tribunal accepts, that proper grounds exist for taking disciplinary action against Bencee for breaching sections 89(a) and/or 89(k) of the Queensland Building Services Authority Act 1991. The decision of the Tribunal dated 18 July 2013 found that the penalty will be determined on the papers. This determination is the subject of this hearing.
What are the relevant factors?
[5]I accept the following factors in determining the penalty for exceeding the allowable AATO[1]:
a)    Bencee was granted a contractor’s licence in the classes of Carpentry and Joinery in September 2003; an additional licence class (Builder – Medium Rise) was granted in November 2003;
b)    Bencee’s current AATO is $12,000,000[2]; the Authority characterises Bencee as a large size business;
c)    Bencee exceeded its AATO by $1,508,317 (46.5%) in 2008/09 and by $5,363,400 (76.6%) in 2010/11. The second beach is significantly larger, in monetary value and percentage, than the first breach;
d)    The breaches were not isolated incidents as there was more than   one breach;
e)    The explanation from Bencee for the first breach is that it was ‘in an early stage of growth as a company and had steadily progressed’ from an AATO of $250,000 in November 2003 to one of $3,246,918 in October 2008[3];
f)     At the time of the second breach in 2011, Bencee asserted that its business activity was significantly increased as a result of rebuild and new built work following the 2011 floods. Bencee explains that…

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 687
Decision Date

CaseChat Overview and Summary

The Queensland Building Services Authority (Applicant) filed an application against Bencee Pty Ltd (Respondent) regarding the Respondent's failure to comply with the allowable annual turnover (AATO) provisions under the Queensland Building Services Authority Act 1991. The Applicant alleged that Bencee Pty Ltd breached sections 89(a) and/or 89(k) of the Act by exceeding its AATO on two separate occasions without proper notification or consent. This case was determined on the papers, and the Tribunal was required to decide the appropriate penalty for the breaches.

The Tribunal had to consider various factors in determining the appropriate penalty, including Bencee's breach history, the size of the breaches, the lack of adequate management controls, and the company's compliance history. The Tribunal also considered comparable previous decisions and adjusted the penalties to account for inflation and changes in penalty unit values. The Tribunal found that Bencee's breaches were not inadvertent and that the company had not implemented sufficient measures to prevent future breaches. However, the Tribunal also noted that Bencee had accepted responsibility for the breaches and cooperated with the Applicant.

Based on the factors considered, the Tribunal determined that the appropriate penalty for Bencee Pty Ltd was $11,000. The Tribunal also found that the Applicant was entitled to its costs in the amount of $1,500.

The Tribunal ordered that Bencee Pty Ltd pay the penalty of $11,000 and the Applicant's costs of $1,500 by 3 February 2014.

Orders