Queensland Building Services Authority v Chandra & Anor
[2013] QCAT 628
| CITATION: | Queensland Building Services Authority v Chandra & Anor [2013] QCAT 628 |
| PARTIES: | Queensland Building Services Authority (Applicant) |
| v | |
| Mr Suresh Chandra (Respondent) And Building Approval And Inspection Consultants Pty Ltd |
| APPLICATION NUMBER: | OCR055-12 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 14 October 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member King-Scott |
| DELIVERED ON: | 22 November 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Mr Chandra never be re-licensed as a building certifier by the QBSA; 2. Mr Chandra pay a penalty to the QBSA in the amount of $10,000 by 4.00 pm on 28 March 2014; and 3. Mr Chandra pay the complainant, Mr Niessl, the sum of $44,522.31, being the amount required to complete the work by 4.00 pm on 28 March 2014; 4. Mr Chandra pay the complainant, Mr Niessl, interest of $7,500.00 on the said sum by 4.00 pm on 28 March 2014. |
| CATCHWORDS: | OCCUPATIONAL REGULATIONAL MATTER – DISCIPLINARY PROCEEDINGS – FORMER BUILDING CERTIFIER where retrospectively certified conversion of non habitable space (garage) to habitable space (bedrooms) without carrying out proper inspection or satisfying himself of all relevant facts. Water incursion causing damage and loss of amenity because of failure to waterproof walls. Respondent incompetent and lacking integrity. Repeat offender, fine inadequate, protection of the public warranted that he not hold licence again. |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr S Formby of counsel for the Applicant |
| RESPONDENT: | Mr Greg solicitor for the Respondent |
REASONS FOR DECISION
This is a Disciplinary proceeding conducted pursuant to s 208 of the Building Act 1975. The Applicant is the Queensland Building Services Authority (“QBSA”), the Respondent, Suresh Chandra, was, at the time, a licensed private Certifier.
Mr Richard Anthony Niessl and his wife purchased a house at 71 Grays Road, Gaythorne in May 2008. It was a 5-bedroom renovated Queensland-style house.
Mr Niessl and his wife were informed by the real estate agent who sold the house to them that all renovations were completely certified. In addition, he was provided with approved plans for the works and inspection reports certified by Mr Chandra, confirming the renovations had been approved. Prior to the 2004 renovations, the lower storey had comprised a bedroom, laundry, rumpus room and garage. In 2004, the renovations converted the garage area into two bedrooms with a walk-in wardrobe.
Mr Chandra was a licensed building certifier under the Building Act 1975. He was approached in 2005 by the former owner of the property to retrospectively certify the 2004 renovations. Mr Chandra accepted the engagement and completed a Development Application Form as required by IDAS.[1] Mr Chandra says that the work he was required to inspect were only cosmetic items. The final inspection was non-invasive and the walls had been sheeted and the floors carpeted. As will appear later in these reasons what Mr Chandra was required to certify was the satisfaction of the requirements of the Building Act 1975 and regulations thereunder for the conversion of a non habitable space (the garage) to a habitable space (the bedrooms), and that included inspection and certification of the building work to prevent moisture and surface water penetration into the habitable parts of the building.
[1] Integrated Development Assessment System.
In November 2008, as a result of extensive rainfall, water penetrated through the southern and western walls on the bottom floor and came up through the slab.
Mr Niessl carried out extensive rectification work that included excavation and construction of a well-drained retaining wall on the southern side of the house. It took Mr Niessl 8 months to accomplish this. He and his wife could not afford to engage building contractors to do the work, as the cost estimates were excessive because of the extensive amount of manual labour that would have been required, it being inaccessible by excavation machinery.
Having completed the work, Mr Niessl hoped that would be the end of the water penetration problem. However, that was not to be. In October 2010, there was a prolonged rain period and again water penetrated the downstairs bedroom, this time at a different point, being the western wall and laundry area. Mr Niessl’s earlier work had successfully plugged one source but the water found a different means of entry.
Insurance covered damage and loss to the house contents including carpets. Mr Niessl retained an engineer to provide advice on how to rectify the problem. Drawings were prepared and a builder engaged. Unfortunately the builder failed to complete the work and Mr Niessl, once again, undertook the work himself.
The total cost of repairing the damage and rectifying the cause of the water penetration amounted to $42,722.31 and a further sum for plumbing of $1,800.00.
On 1 April 2009, Mr Niessl lodged a complaint about Mr Chandra’s conduct concerning the building works approved at the site. The complaint was made in relation to Mr Chandra approving and certifying that part of the building works consisting of internal alterations to the lower ground floor area of the dwelling. The substance of the complaint was that Mr Chandra had conducted himself in an unsatisfactory and incompetent manner by approving the building works when they were not in compliance with the required Building Standards, that is, that Mr Chandra had acted unsatisfactorily and incompetently when approving and certifying the building work when the external walls, site drainage and concrete floor slab had not been properly constructed to prevent moisture and surface water penetration into the habitable parts of the building.
An initial complaint was also made against Mr Jeffrey Hills, a registered Professional Engineer in the area of Civil Engineering. However, Mr Hills had never held a Building Certifier’s Licence under the Building Act 1975 and the QBSA had no authority to investigate or make a decision on the conduct of Mr Hills. Mr Hills says his brief did not extend to certification of the work as a habitable area but only as to its structural adequacy.
The QBSA notified Mr Chandra by letter dated 4 April 2011 that it considered he had engaged in two counts of professional misconduct. The QBSA reasons are set out in that letter.
The building works were approved by Mr Chandra on 31 May 2006. Mr Chandra certified the completion of the building works after undertaking a final inspection on 23 June 2006 and issuing the Final Inspection Certificate in the form of “an Inspection Summary”.
Mr Chandra’s response to that complaint was, in substance, that he was being asked to certify and be responsible for works that were beyond the scope of his commission.
The plans approved by Mr Chandra consisted of the conversion of the existing garage into two bedrooms with one of those bedrooms containing a walk-in wardrobe. An internal staircase providing access to the upper floor level at the southern most end of the garage was also part of the building works together with the removal of two garage doors with a replacement by external doors to each new bedroom at the most northern elevation external wall.
When Mr Chandra attended a site meeting with the owner on 3 March 2006, he caused a handwritten note to be made on the file indicating that he was concerned that illegal construction work had previously been undertaken and he had asked the owners for a records search and termite and water penetration reports to be provided. QBSA found no evidence to suggest that Mr Chandra actually received any evidence relating to the records search or adequacy of the concrete floor and external walls of the existing garage to resist the penetration of moisture or surface water.
It is not known whether the earlier building work that involved the construction of a rumpus/family room, bedroom, laundry, bathroom and garage in the lower ground floor, had been lawfully constructed. Subsequent investigations with the Brisbane City Council failed to reveal any evidence of an earlier approval concerning this work. Mr Chandra was aware of this. Mr Chandra had in his possession a pre-purchase inspection report by a Peter Luckman wherein the author doubted that the sub-floor had Council approval.[2] There are also file notations made by Mr Chandra of discussions with the owner where Mr Chandra raised concerns about water penetration to the lower ground floor and the method of termite control.
[2] Attachment 1 to Mr Chandra’s submissions in response.
As stated earlier, Mr Chandra relied on a Certificate given by Mr Jeffrey Hills certifying the structural adequacy of the building work. That Certificate is dated 31 March 2006 and notes an inspection of the room was undertaken by Mr Hills on 23 March 2006. The Certificate given by Mr Hills does not specifically certify the adequacy of the existing external walls or concrete floor to resist moisture penetration from outside.
QBSA’s investigations established that the existing ground floor level of the building where the internal alterations were approved and certified under the building development approval had not been constructed in a manner that prevented water penetration into that part of the building. It was located below and partially below the finished ground level and had been constructed before Mr Chandra issued his Building Development Application Decision Notice.
Mr Niessl obtained a report from Paul Joseph Consulting Structural and Civil Engineers Pty Ltd dated 12 December 2008. It identified the source of water entry during periods of rainfall as occurring via the external masonry walls where they were constructed below finished ground level, construction joints within existing concrete floor slabs which had been poured in a number of smaller sections and overland flow of surface water directed into the building on the northern end from the existing driveway which sloped towards the building where the garage doors had previously been installed. The problem was exacerbated by the height of the floor level not being sufficiently raised above the finished surface of the existing driveway.
Further, all primary building elements susceptible to attack by subterranean termites approved as part of the application were required to be protected in accordance with the requirements of Performance Requirements Qld P2.1.1 of the Building Code of Australia, volume 2 (“BCA”).
Enquiries made with Mr Chandra revealed that Mr Chandra had no evidence to suggest that a termite management system designed to ensure compliance with Performance Requirements Qld P2.1.1 of the BCA had been provided. When certifying the completion of the building works, s 87K (2)(b) of the Standard Building Regulation 1993 (“SBR”) Mr Chandra was required to give a Final Inspection Certificate in the approved form. The approved form for a Final Inspection Certificate was Form 21, Version 1 (Final Inspection Certificate, single detached class 1a buildings and class 10 buildings or structures). That requirement commenced on 14 November 2003.
The formal Final Inspection Certificate given by Mr Chandra after performing the final inspection on 23 June 2006 was given in a form other than required under s 87K(2)(b) of the SBR.
On 4 April 2011, the QBSA concluded its investigation and determined pursuant to s 204 of the Building Act that Mr Chandra had engaged in professional misconduct.
The QBSA case against Mr Chandra was that when approving and certifying the building works at the site he:
(a) failed to ensure the satisfaction of his obligation under s 87A(2) of the Standard Building Regulation 1993 requiring the inspection of the aspects nominated in the Guidelines for inspecting single detached class 1a buildings or class 10 buildings or structures effective 14 November 2003, namely Mr Chandra failed to demonstrate that he adequately checked and assessed (or gained third party certification), during the final inspection for the building work related to:
(i)surface water drainage and floor height level above finished ground to ensure the surface water drainage and floor height was sufficient to prevent surface water entering bedrooms through external walls and/or openings; and
(ii)the adequacy of site works including the extent of any necessary moisture barrier or any subsequent surface drainage system required to be provided to external masonry walls where serving as retaining walls to existing perimeter of the building work; and
(iii)subterranean termite protection; and
(iv)protection of timber framing members from moisture penetration through the concrete slab;
(b) failed to ensure that alterations and additions to the dwelling complied with the requirements of the SBR as required under s.11 of the Building Act;
(c) failed to ensure satisfaction of Conditions 6 and 18 of the Building Development Approval issued by Mr Chandra requiring termite protection to AS3660.1 and the Certificates for termite treatment;
(d) failed to give the Final Inspection Certificate in the form approved as required by s.87K(2)(b) of SBR as applying at the material time;
(e) breached his obligations under points 1, 2, 3, 7 and 8[3] of the Standards of Conduct and Professionalism contained within the Code of Conduct for Building Certifiers;
[3]The Code provided:
A building certifier must:
1. Perform building certifying functions in the public interest.
2. Maintain satisfactory levels of competence.
3. Comply with legislative requirements.
4. Not perform building certifying functions where there is the potential for a conflict of interest.
5. Not perform building certifying functions beyond their level of competence or outside their area of expertise.
6. Maintain confidentiality. Abide by moral and ethical standards expected by the community.
7. Take all reasonable steps to obtain all relevant facts when performing building certifying functions.
8. Clearly document reasons for building certifying decisions.
9. Ensure inspections are carried out to ensure building work complies with the Building Act 1975 and the development permit.
(f) breached his obligations under s.5.3.8 of the Integrated Planning Act 1997 (“IPA”) to always act in the public interest, namely by:
(i)acting in a way contrary to his duty under the Building Act to ensure the alterations and additions complied with the SBR; and
(ii)contravened the Code of Conduct; and
(iii)acting in a way that was grossly negligent and grossly incompetent by approving the conversion of a garage area into habitable bedrooms when that part of the building was not confirmed as having been lawfully constructed for habitable purposes, protected against moisture and surface water to habitable rooms and damage by subterranean termites;
Further, Mr Chandra’s conduct in the performance of his building and private certifying functions was considered to be 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.
At the time of making its decision in respect of Mr Niessl’s complaint, the QBSA reviewed the history of Mr Chandra and found that Mr Chandra had been subject to three recent earlier findings of “unsatisfactory conduct” made by the QBSA under s 204 of the Building Act.
The three earlier findings of unsatisfactory conduct were made by the QBSA after the investigation of three separate complaints about him and identified as file reference numbers 8-72-09, 8-3884-09 and 8-4495-08.
When making its decision on 4 April 2011, the QBSA determined that Mr Chandra had also engaged in professional misconduct due to his engagement in “repeated unsatisfactory conduct”.
It is not necessary to consider professional misconduct in respect of the Second Respondent, Building Approval and Inspection Consultants Pty Ltd ABN 17 085 123 557, as that company has now been deregistered.
On 15 May 2013, the Tribunal, at the request of both parties, determined a preliminary question on the papers. The question was in effect, at law what were Mr Chandra’s obligations in respect of the certification that had been requested of him. The Tribunal determined that Mr Chandra’s obligations were not limited to certifying the structures shown in the plans provided to him, but extended to certifying that the renovations to the property, taking into account the proper “classification” of the works there, in light of the building legislation applying at the time.
The Tribunal further stated:
The building work Mr Chandra certified included the conversion of the garage area into two bedrooms, the garage was a class 10a structure. The bedrooms were to be a class 1a structure.
Mr Chandra was obliged to ensure that the converted space complied with the requirements of a class 1a structure. He was obliged to ensure the health and safety of any person, or the amenity of any person’s property was not compromised. He was obliged to apply all relevant building laws and regulations. He was obliged to conduct such tests as were necessary to make himself aware of any conditions that might have influenced his decision.
Quite clearly, on Mr Chandra’s own admission, he has not complied with his obligations set out in the Code of Conduct approved under the provisions of the SBR.
Mr Chandra did not seriously contest the substance of the allegations made against him. His defence was that at the time in 2006, he believed his obligations were limited, as he had advised the QBSA in his letter in response. He understood that his role was not as clearly defined in 2006 as it is now and that he believed he had discretionary powers in respect of any work he certified.
Professional misconduct and unsatisfactory conduct are defined in Schedule 2 of the Building Act 1975. Where relevant to the issues arising in this case, the definition for “professional misconduct” is as follows:
Professional misconduct, for a building certifier or former building certifier, includes the following –
(a) conduct that -
(i)shows incompetence, or a lack of adequate knowledge, skill, judgment, integrity, diligence or care in performing building certifying functions; and
(ii)compromises the health or safety of a person or the amenity of a person’s property or significantly conflicts with a local planning scheme; and
Example of significantly conflicts with a Local Planning Scheme –
The approved building work compromised the outcome sought by the Planning Scheme.
(iii)is contrary to a function under the Act or another Act regulating building certifiers (including private certifiers for building work), including, for example, -
A.disregarding relevant and appropriate matters; and
B.acting outside the scope of the building certifier’s powers; and
C.acting beyond the scope of the building certifier’s competence; and
D.contravening the Code of Conduct; and
E.falsely claiming the building certifier has the Schedule 2 qualification, necessary experience or licence to be engaged as a building certifier;
…
(e) other improper or unethical conduct;
(f) repeated unsatisfactory conduct.
“Unsatisfactory conduct” is defined as follows:
Unsatisfactory conduct, for a building certifier or former building certifier, includes the following –
(a)conduct that shows incompetence, or a lack of adequate knowledge, skill, judgment, integrity, diligence or care in performing building or private certifying functions;
(b)conduct that is contrary to a function under the Act or another Act regulating building certifiers (including private certifiers for building work) including, for example –
(i) disregarding relevant and appropriate matters; and
(ii) acting outside the scope of a building certifier’s powers; and
(iii) acting beyond the scope of a building certifier’s competence; and
(iv) contravening the Code of Conduct;
(c)conduct that is of a lesser standard than the standard that might reasonably be expected of the building certifier by the public or the building certifier’s professional peers.
Member Lorisch in QBSA v Chandra [2009] CCT Qd 035-05 said:
[63] Putting aside paragraphs (b)-(f) of the definition of “professional misconduct” in the Building Act, the difference between what amounts to “professional misconduct” and what amounts to “unsatisfactory conduct” is (ii) of paragraph (a) of the definition of professional misconduct, namely that which –
“compromises the health and safety of a person or the amenity of a person’s property or significantly conflicts with a Local Planning Scheme”.
The QBSA further submits that in certifying the plans and alterations to the premises on 31 May and 23 June 2006 Mr Chandra compromised the amenity of the property and the occupants, being Mr Niessl and his family. I accept that submission.
There is no evidence that the health and safety of the Mr Niessl or his family were at any time compromised, but clearly the amenity of the property was. It was necessary for Mr Niessl to remove his children from their ground floor bedrooms because of flooding and rehouse them in the upstairs accommodation which led to cramped living quarters for all concerned. There was also the presence of water-soaked carpets and contents which were damaged which clearly affected the amenity of the premises.
Mr Chandra did not give oral evidence and was not required for cross-examination. In his written submissions in defence he said that he had not been engaged to ascertain if the structure had adequate protection against moisture and surface water entry. He maintained that he had a discretionary power whether to carry out such an inspection. He implied that if there had been some evidence of water entry then the criticism of him might have been justified. However, there was no evidence and the only way he said such an inspection could have been done would have been to dig a trench around the perimeter of the house that would have been impractical and costly.
Mr Chandra further stated that to impose the duty on a certifier as suggested by the QBSA would in effect make him an auditor, not just of the work he is asked to assess, but also any and all adjoining and existing work in a building to ensure it complies with all applicable Building Codes.
Clearly such propositions cannot stand in the light of the Tribunal’s decision on the preliminary point referred to above. Mr Chandra’s obligation was not limited to inspection of the internal work but included an obligation to take all reasonable or necessary steps to ensure that the conversion of a Class 10a to a Class 1a complied with relevant building laws, regulations and codes.
In mitigation, Mr Chandra submitted that in 2006 the duties and responsibilities of a private certifier were not as thoroughly understood as they presently are. Mr Chandra provided no evidence to support this contention. It seems to me that that is because there has been no change in attitude and a certifier’s responsibilities and obligations were in 2006 the same as they are now.
In mitigation, Mr Chandra said he may have been mistaken but his conduct was not unreasonable, blatant or reckless in the exercise of his discretion.
Mr Chandra was on notice that the ground floor renovations were probably not compliant. He was aware of his obligation when he states:
I informed Mrs Prieto that the issue of retrospective approval for works that had already been carried out required a lot more scrutiny as we had NO opportunity to inspect the vital stages of the works, namely the footing, slab and frame.
There is a Building Development Approval signed off by Mr Chandra on 31 May 2006. It was conditional upon inspection of and a certificate from a competent person for:
a) pool reinforcements;
b) fencing;
c) firewall inspection;
d) retaining wall inspection.
These requirements were superfluous to the building application for the property as there was no pool indicated on the plan, there was no fencing indicated on the plan, there was no detached dwelling house which required firewalls and there were no retaining walls indicated in the application.
In a sheet entitled “Standard Building Requirements” in the Development Approval, Mr Chandra included many superfluous requirements detailing structural requirements relating to retaining walls, safety fences, driveway crossings and stormwater connections as well as surveyors certificates and test results for compaction tests for fill material all of which had no relevance to the works he was certifying.
In addition, he required to inspect numerous and varied certificates again mostly irrelevant to the work he was certifying. However, there is no evidence that any of the certificates were provided or sighted by him except for Mr Hills’ certificate referred to earlier.
In my opinion the inclusion of these irrelevant factors in the Building Development Approval demonstrated that at no time did Mr Chandra properly consider the requirements of the particular development. It is submitted that this demonstrates a lack of integrity, diligence and care in performing his certifying functions. Again I accept those submissions.
I have little difficulty in 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 Mr Niessl’s property for some considerable time and put Mr Niessl 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.
If need be I would also find that Mr Chandra had also engaged in professional misconduct due to his engagement in “repeated unsatisfactory conduct”.
Section 212 of the Building Act 1975 provides the
Orders relating to former building certifier
(1) This section applies if the tribunal decides that proper grounds exist for taking disciplinary action against a former building certifier.
(2)The tribunal may make 1 or more of the orders mentioned in subsections (3) to (8).
(3)The tribunal may make an order requiring the former building certifier to—
(a)have another person who is appropriately licensed take all necessary steps to ensure the certification of building work complies with—
(i) this or another Act; or
(ii) any relevant development approval; or
(iii) a local planning instrument; or
(b)pay the complainant or another person an amount sufficient to complete the certification work.
(4) The tribunal may, in relation to building work carried out that is defective or incomplete as a result of the professional misconduct, make an order that the former 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.
(5)The tribunal may make an order imposing a penalty on the former building certifier of not more than—
(a)for a first finding of professional misconduct—an amount equivalent to 80 penalty units; or
(b)for a second finding of professional misconduct—an amount equivalent to 120 penalty units; or
(c)for a subsequent finding of professional misconduct—an amount equivalent to 160 penalty units.
(6) …
(7)The tribunal may make an order that the former building certifier must—
(a)not be licensed or re-licensed by BSA for the period stated in the order; or
(b)never be licensed or re-licensed by BSA.
(8)The tribunal may make any other order it considers appropriate.
(9)If the tribunal makes an order under subsection (5) or (6)(b), the tribunal must order the amount be paid to the person bringing the disciplinary proceedings.
(10)The tribunal may make an order under subsection (6) or, if the order affects the corporation or local government, under subsection (8), only if the corporation or local government has been joined as a party to the proceeding.
Mr Chandra has form. In QBSA v Chandra [2010] QCAT 451, Dr Bridget Cullen set out Mr Chandra’s history of misconduct.
Proven complaints in respect Mr Suresh Chandra, Licence No A81718, at the time of the hearing of the 2010 matter were:
1.Case ID 81718_19: Engaged in Unsatisfactory Conduct. Reprimand was given. (Finalised 04 June 2004)
2.Case ID 81818_21: Engaged in Unsatisfactory Conduct. Reprimand was given. (Finalised 21 June 2005)
3.Case ID: 81718_37: Engaged in Unsatisfactory Conduct. Direction was given resulting in an Enforcement Action. (Finalised 12 April 2006)
4.Case ID: 81718_41: Engaged in Professional Misconduct as well as Unsatisfactory Misconduct. Reprimand was given. (Finalised 15 January 2008)
5.Case ID: 81718_22: Engaged in Professional Misconduct and underwent an Educational Course, Report on Practise, Suspension of License, an Order pursuant to s 45(4) of the Building Act 1975 that the Respondent at his own cost, have the work found to be defective rectified by a person appropriately licensed. In addition, a Monetary Penalty was ordered to be paid in the sum of $7,500.00. (Finalised 11 September 2009)
6.Case ID: 81718_45: Engaged in Unsatisfactory Conduct. Reprimand was given. (Finalised 28 April 2010)
7.Case ID: 81718_44 Engaged in Unsatisfactory Conduct. Reprimand was given. (Finalised: 30 July 2010)
In Chandra v QBSA [2008] CCT CR004-08, Mr Chandra sought a review of a decision by the QBSA that found him guilty of professional misconduct. Member Lorisch confirmed the Authority’s decision on review. Dr Cullen, in the 2010 proceedings, imposed the following penalty in respect of that decision:
i) Mr Chandra’s Licence No A81718 be cancelled;
ii) Mr Chandra be disqualified from obtaining a licence in the Class of Assistant Building Surveyor and/or Building Surveying Technician for a period of not less than 2 years and 3 months (2 ¼ years);
iii) Mr Chandra pay a penalty to the QBSA in the amount of $12,000 within 60 days of the order.
I understand that there is a further instance where Mr Chandra was disciplined, being on 17 May 2010 in respect of case ID Number 81718/50 in which he was found guilty of unsatisfactory conduct relevant to the approval of assessable building work. It is not apparent what penalty was imposed on that occasion.
I am not aware whether the offences complained of in those matters occurred before or after the events for which he is now being disciplined. In QBSA v Chandra [2009] CCT QD035-05, Mr Chandra was disciplined on 10 September 2009 for events that took place before 14 October 2005 (when the Authority commenced proceedings). On that occasion, the following orders were made:
1.Subject to order 3, the respondent’s licence in the class of building surveyor be suspended for a period of 8 months.
2.Pursuant to section 45(4) of the Building Act 1975, the respondent at his own cost, will have the work, found in these proceedings to be defective, rectified at the following addresses by a person appropriately licenced:
(1) 20 Federation Street, Wynnum West
(2) 8 Coolibah Place, Narangba
(3) 6 Coolibah Place, Narangba
3.During the 8 month suspension period the respondent is to –
(a) undertake educational instruction/programs of 20 hours at least, approved, and monitored and certified in writing by the Authority, to include fire protection matters and, if possible, other certification issues which have arisen during the course of these proceedings.
(b) have the rectification work referred to order 2 completed to the written satisfaction of the Authority.4.In the event the respondent fails to comply with order 3 within the time allowed, the period of suspension of 8 months is hereby extended until there has been compliance.
5.For the period of 12 months following the period of suspension, the respondent is directed to report on his practice as a building certifier to the Authority on a monthly basis for a 12 month period of matters where he has issued approvals for certificates with respect to fire separation.
6.The respondent is to pay to the applicant by way of penalty the sum of $7,500.00 within 28 days of the date of this decision.
I was referred to a decision of the Western Australian Supreme Court, Court of Appeal, of Paridis v Settlement Agents Supervisory Board (2007) 33 WAR 361 where Buss JA, with whom the other members of the Court agreed, said at 375:
The character and purpose of the disciplinary proceedings against the member of a profession have been examined on numerous occasions. The object of those proceedings is the protection of the public and the maintenance of proper professional standards. The maintenance of proper professional standards is conducive to the protection of the public. Disciplinary proceedings are not designed to punish the person who is disciplined. …
The High Court has expressed similar views in Wentworth v New South Wales Bar Association (1992) 176 CLR 239 at 251 and Smith v New South Wales Bar Association (1992) 176 CLR 256 at 270.
It was submitted on the Authority’s behalf that were these criminal proceedings, the Tribunal would rightly take into account, in these proceedings, earlier penalties imposed for offences that predated the current offence. The Tribunal would have to take into account the punishment on the preceding occasion and ask the question, “If all the matters had come to the court at the same time, would a greater penalty have been imposed?” However, the Authority says that this is not the case here; the function of a disciplinary proceeding is as stated in the above authorities it is not to punish but to protect the public and maintain proper professional standards.
The Authority submits that it is relevant to take into account Mr Chandra’s response to Mr Niessl’s complaint and his defence of this matter prior to the decision of the Tribunal in the appeal delivered on 15 May 2013[4], that is, that Mr Chandra maintained that his liability as a Certifier did not extend to carrying out inspections of the earlier work or even questioning its effectiveness.
[4] QBSA v Chandra & Anor [2013] QCATA 142.
It is submitted that Mr Chandra has shown little remorse in the past and shows little remorse for his failings and the damage he has caused in this case. Certainly, his incompetence put Mr and Mrs Niessl to great expense and inconvenience and has caused much unhappiness in the Niessl household. In all probability without Mr Chandra’s certification of the renovations at 71 Grays Road Gaythorne, Mr and Mrs Niessl would not have purchased the property.
In view of the extensive history of professional misconduct and unsatisfactory conduct, it is my view, that a monetary penalty is merely punishing Mr Chandra without achieving the objects of the legislation. The history of his conduct is well documented and fines, although a deterrent to others in the industry, in this instance, have had little effect on Mr Chandra. The best protection for the public in this case is that Mr Chandra never be allowed to hold a license again.
It is also reasonable that Mr Chandra pay for the costs of rectification claimed on the Complainant’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 Mr Niessl’s personal labour, time off work, holiday and long service leave expended. Nor does it include sums paid by the insurer. Further, Mr Niessl expended the sum of $1,800 on plumbers. That was not included because Mr Niessl does not have receipts for the work. Having heard Mr Niessl 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.
The reasonableness of amount claimed cannot be doubted as it does not include labour costs, which if the rectification work had been carried out by a registered builder would have been substantial. Mr Niessl, who is a professional soldier, has been disadvantaged in his promotion prospects because of the time he spent away from his duties and the need to stay in Brisbane to finalise the rectification work. This disadvantage is not compensable in these proceedings.
The Tribunal can make any other order it considers appropriate[5] and in this instance I am of the opinion it is reasonable to include interest on the sum of $44,522.31. In view of the uncertainty of when the various costs were incurred I will allow interest on the whole sum from 17 September 2011[6] to 17 March 2014 at a rate of 6.75%[7]. That amounts to $7,500 rounded off.
[5] Building Act 1975 s 212(8).
[6] A portion of those cost, about $13,708.52 was incurred from 7 September 2010.
[7]I have applied the interest rate applicable to default judgments in minor civil disputes QCAT Practice Direction No 9 of 2013, arguably a higher rate on interest could be imposed.
The Tribunal orders that:
i) Mr Chandra never be re-licensed as a building certifier by the QBSA;
ii) Mr Chandra pay a penalty to the QBSA in the amount of $10,000 by 4.00 pm on 28 March 2014; and
iii) Mr Chandra pay the complainant, Mr Niessl, the sum of $44,522.31, being the amount required to rectify the work by 4.00 pm on 28 March 2014;
iv) Mr Chandra pay interest of $7,500.00 on the said sum by 4.00 pm on 28 March 2014.
4
6
0