Queensland Building Services Authority v Blumel
[2011] QCAT 643
•14 December 2011
| CITATION: | Queensland Building Services Authority v Blumel [2011] QCAT 643 |
| PARTIES: | Queensland Building Services Authority |
| v | |
| Mr Gregory Norman Blumel |
| APPLICATION NUMBER: | OCR118-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Member |
| DELIVERED ON: | 14 December 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Mr Blumel pay a penalty of $800 to the Authority by 27 January 2012. 2. Mr Blumel pay the Authority’s costs fixed at $800 by 27 January 2012. |
| CATCHWORDS: | BUILDER – DISCIPLINARY PROCEEDINGS – where failure to provide contract in writing – where early admission that grounds for disciplinary action exist – where parties provided joint submissions as to penalty Domestic Building Contracts Act2000, s 26 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
The parties agree that there are proper grounds for taking disciplinary action against Mr Blumel for a breach of section 26 Domestic Building Contracts Act2000 (“DBC Act”) – failing to put a contract in writing. The tribunal has been asked to determine penalty in circumstances where the parties have agreed that an appropriate penalty is a fine of $800 plus an order that Mr Blumel pay the Authority’s costs of $800.
Mr Blumel has been a builder since 1978 and has held an open licence since 2003. Apart from this proceeding, his record has been unblemished.
Mr Blumel has known Ms Vlores for about 25 years. Ms Vlores is a friend of Mr Blumel’s daughter and, until recently, referred to him as “Dad”. In March 2010, Mr Blumel provided Ms Vlores and her partner with a quote for domestic building work containing an estimate of $5,000 - $6,000 including GST.
The quote was accepted and Mr Blumel carried out domestic building work. He gave Ms Vlores and her partner an invoice dated 26 May 2010 for $6,372.45. Mr Blumel concedes that he did not provide a contract in writing to Ms Vlores and her partner.
The Authority issued proceedings in the tribunal for Mr Blumel’s breaches of the DBC Act in:
a) Carrying out building work without holding an appropriate licence; and
b) Failing to provide a contract in writing.
The Authority concedes that Mr Blumel does have the relevant licence so does not press for a finding on the first ground articulated in its application to the tribunal.
The Authority says that the circumstances in aggravation of this offence are:
a) Mr Blumel failed to meet his well-known responsibilities under the DBC Act. His long career as a builder means that he ought to have been aware of the requirements to put contracts in writing.
b) The purpose of the DBC Act is to achieve a balance between the interests of building contractors and building owners and the requirement for contracts to be in writing is an important mechanism to minimise disputes.
c) Ms Vlores and her partner did allege defective and incomplete work and made a complaint to the Authority. The absence of a written contract made the resolution of that dispute more difficult.
d) Mr Blumel says that the contract was a costs-plus contract. This raises additional compliance issues although the tribunal is not asked to deal with them.
Mr Blumel says that the circumstances in mitigation of the offence are:
a) His good record to date.
b) His relationship with Ms Vlores explains why he did not ensure compliance with the DBC Act with his usual vigour.
c) The breach is unlikely to reoccur so there is no need for deterrence.
d) Mr Blumel submitted a quote before commencing the work and the invoice submitted was within that range. He was not deliberately or recklessly non-compliant with the Act nor did he attempt to deprive Ms Vlores and her partner of the protection available under the DBC Act.
e) The failure to comply with the DBC Act was not a factor in his dispute with Ms Vlores.
f) Ms Vlores has not paid the invoice and the arrangements to settle the amount outstanding means that Mr Blumel will suffer financially from this transaction.
The Authority also submits the following circumstances in mitigation:
a) That Mr Blumel was licensed to carry out the work.
b) That he admitted proper grounds exist for disciplinary action at an early stage.
c) That, although the invoice rendered was higher than the regulated amount, it was within the range of the quote provided.
[10]I am satisfied that proper grounds exist for disciplinary action in that, in breach of s 26 of the DBC Act, Mr Blumel failed to provide a contract in writing.
[11]I am mindful that Mr Blumel provided an estimate of the cost of the work which may not have required a written contract and of the relationship between Mr Blumel and Ms Vlores that explains (although does not justify) why he took a more relaxed approach to this contract. I am also mindful that Mr Blumel has settled his dispute with Ms Vlores on unfavourable terms, thereby already suffering a financial penalty for his failure to commit the contract to writing.
[12]Mr Blumel should be penalised at least the amount of the penalty notice issued by the Authority, which is $800. Even though he has admitted fault at an early stage, the Authority had to issue these proceedings and attend a compulsory conference. It is right that Mr Blumel should bear a proportion of those costs.
[13]I order that Mr Blumel pay a penalty of $800 to the Authority by 27 January 2012. I further order that Mr Blumel pay the Authority’s costs fixed at $800 by 27 January 2012.
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