Queensland Building Services Authority v Chris Hoole & Staff Pty Ltd
[2012] QCAT 328
•24 July 2012
| CITATION: | Queensland Building Services Authority v Chris Hoole & Staff Pty Ltd [2012] QCAT 328 |
| PARTIES: | Queensland Building Services Authority (Applicant) |
| v | |
| Chris Hoole & Staff Pty Ltd (Respondent) |
| APPLICATION NUMBER: | OCR058-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | K Buxton, Member |
| DELIVERED ON: | 24 July 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Proper grounds exist for the Authority to take a disciplinary action against the respondent for three breaches of the Domestic Building Contracts Act 2000. 2. For its contravention of ss 27(1), 31(4) and 65(2) of the Domestic Building Contracts Act 2000 the respondent will pay to the Authority a penalty of $1,000 within 14 days of this order. 3. Each party bear its own costs. |
| CATCHWORDS: | Building contractor – formal requirement for a regulated contract not met – disciplinary sanction |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
The Queensland Building Services Authority (QBSA) has referred this application to QCAT pursuant to section 34 of the QCAT Act. Section 88 of the Queensland Building Services Authority Act 1991 (QBSA Act) provides the QBSA with the Authority to apply to QCAT to conduct a proceeding to decide whether proper grounds exist for taking disciplinary action against a licensee. The QBSA relies upon section 89(a) which provides that proper grounds exist for taking disciplinary action against the licensee if the licensee contravenes a requirement imposed under the Domestic Building Contracts Act 2000 (DBCA).
The QBSA seeks the imposition of a penalty against the respondent licensee, Chris Hoole & Staff Pty Ltd, on the basis of the following three alleged contraventions of the DBCA:
1.Between 13 January 2009 and 16 January 2009, Chris Hoole & Staff Pty Ltd failed to ensure that a regulated contract, in written form, complied with the formal requirements for a regulated contract, in contravention of section 27(1) DBCA;
2.Between 13 January 2009 and 16 January 2009, Chris Hoole & Staff Pty Ltd failed to ensure that the contract stated the number of days allowed by the building contractor, namely the number of days that will be required to finish the work once it has started, in contravention of section 33(4) DBCA; and
3.On or about 30 January 2009 Chris Hoole & Staff Pty Ltd demanded or received an amount under the contract, other than a deposit, which did not relate to the progress of a work carried out under the contract, in contravention of section 65(2) of the DBCA.
The QBSA seek the imposition of a penalty, together with a costs order against the respondent licensee.
This referral was determined by QCAT on the papers on the basis of the information filed by the QBSA and the respondent licensee in these proceedings.
Material
The QBSA supporting affidavit of Ms Carol Leung sets out the following evidence:
§On 3 March 2009 the QBSA received a residential and commercial construction work complaint form (“the first complaint”) from Ms June McCrorie in relation to defective painting work carried out by the respondent licensee at her home. On the same day the QBSA received a second complaint form (“the second complaint”) alleging that the respondent licensee had taken an unauthorised amount from Ms McCrorie’s credit card.
§The QBSA inspected the contract and determined that it did not comply with the formal requirements of the DBCA as it did not include:
(i) The date the subject work was to start, or how the date was to be decided; and
(ii) The date the work was to finish or if the starting date of the work was not yet known the number of days that would be required to finish the work.
§Instead of identifying a specific completion date for the subject work the respondent licensee wrote “ASAP” at item 6 of the contract.
§Instead of nominating a construction period for the work items 4 and 5 of the schedule were crossed out and the respondent licensee had written “approx 1 week” in their place.
§The respondent licensee failed to ensure that the contract stated the number of calculable days allowed by the building contractor to complete the subject work.
§In a telephone conversation between Ms Leung, a compliance officer, and Mr Chris Hoole of the respondent licensee Mr Hoole confirmed the facts as asserted by the QBSA but denied any wrongdoing and provided some reasons for that assertion.
In the respondent’s reply to the applicant’s agreed set of facts, filed 1 November 2011 the respondent licensee provided the following facts:
§The contract was dated 13 January 2009 with a starting date of 19 January 2009.
§It was explained to the client, due to severe weather conditions, it was not possible to confirm the finish and the customer agreed with “asap”.
§With significant rain periods expected during the job progress the licensee could not confirm the amount or number of days it was filled in as “unknown”. The customer was happy with this.
§The work commenced on 19 January 2009 no deposit was paid by Ms McCrorie on commencement of the work
§On 30 January 2009 the respondent processed the deposit payment, authorised by Ms McCrorie in the sum of $777 but instead deducted $7,070. This was an administrative error in processing.
§Ms McCrorie emailed the respondent on 7 February 2009 complaining that the $7,070 had been deducted from her account. This amount was not repaid by the respondent but was held by the respondent until it became due.
§The respondent gave Ms McCrorie a $700 discount for any inconvenience caused by the earlier incorrect debiting of her account.
Relevant law
Section 27 DBCA requires the building contractor under a regulated contract to ensure the contract complies with the formal requirements for a regulated contract including setting out in full all the terms of the contract and stating required matters.[1] The “required matters” set out in section 28(2) DBCA and include the date the contract is made the date the work is to start or how that date is to be decided and the date the work is to be finished (or the number of days that will be required to finish the work once started). This is the provision which the respondent licensee is said to have contravened by not including the starting date on the copy of the contract retained by Ms McCrorie and (although the respondent’s own copy of the contract bears the date 19 January 2009) it does not state how long it was to take. The absence of any stipulation as to the time taken to complete the work is enough to give rise to a strict contravention of the required matters and the contract does therefore fall short of the requirements set out in section 27(a).
[1] Section 27(2)(b) and (d) DBCA.
In circumstances where the starting date for work is not yet known and where a number of days that will be required to finish the work is nominated in compliance with section 28(2)(h) DBCA, section 33 DBCA requires the contract to stipulate any allowances to be made in the contract for any delay in taking into account the cancellation of the number of days required. Compliance with this section requires references to inclement weather, non working days or any other matter reasonably likely to delay the carrying out of the work.[2] However, the building contractor is required to comply with s 33(2) and stipulate likely delays only if there is a reasonable likelihood that the subject work will be affected by such factors as inclement weather, non working days and other delay factors.
[2] Section 33(2) DBCA.
In its filed material the respondent concedes that there were significant periods of inclement weather. There is no serious suggestion that these could not be estimated (albeit with a necessary degree of imprecision). This, therefore, is a contravention of section 33 which could give rise to a disciplinary outcome for the respondent licensee.
Section 65 DBCA precludes a building contractor under a regulated contract from receiving an amount other than the deposit unless the amount is directly related to the progress of the work carried out under the contract.[3] Clearly, there is no factual dispute that an amount above the agreed deposit sum was deducted from Ms McCrorie’s account. Rather than being immediately returned to her (which, had this occurred, would still have amounted to a strict contravention of section 66) the respondent licensee asserts that by the time the error was brought to his attention the entire contract sum was almost due. It is conceded by the respondent licensee then an administrative error took place the facts therefore give rise to a contravention of s 66 in relation to which a disciplinary outcome could arise.
[3] The maximum penalty unit for contravention of this provision is 50 penalty units.
Conclusions in relation to the disciplinary proceeding
QCAT is afforded a broad range of powers under section 91 QBSA Act in relation to disciplinary actions including the imposition of penalties together with reprimanding a licensee and the suspension, imposing of conditions or cancellation of the licensee’s license.
The QBSA has submitted that a penalty should be applied and that the following amounts are appropriate in the circumstances set out in its written submissions.
(a)Offence 1 – contravention of section 27(1) DBCA $400 to $600;
(b)Offence 2 – contravention of section 33(4) DBCA $400 to $600; and
(c)Offence 3 – contravention of section 65(2) DBCA $800 to $1,000.
It is noted in the QBSA’s submissions filed 1 August 2011 that the QBSA now asserts that each party ought bear its own costs in the application.
The respondent licensee asserts that it has a clean record, that this was one administrative error among thousands of contracts, that it manages a large number of employees including administrative staff, and that administrative errors do happen from time to time. The respondent submits that the Tribunal should take a lenient approach in relation to these disciplinary proceedings.
Although the Tribunal is satisfied that there have been contraventions of the provisions as set out above, these contraventions both individually and collectively appear to be formal rather than substantive contraventions. There is no evidence of an endemic practice within the respondent’s business that results in frequent or multiple infringements and there is evidence to suggest that, once Ms McCrorie began to complain about the quality of the work itself the administrative error in deducting monies from her account earlier than was envisaged by both parties sought to inflame Ms McCrorie and lead inevitably to the application by the QBSA of its resources in a thorough investigation of this matter.
It is difficult to separate the three offences which all arose from the same contract, the domestic painting work. Treated together, it appears that the imposition of a penalty of $1,000 for all three offences is commensurate with the seriousness of the offences and gives proper weight to the circumstances of them.
Orders
Proper grounds exist for the Authority to take a disciplinary action against the respondent for three breaches of the Domestic Building Contracts Act 2000.
For its contravention of sections 27(1), 31(4) and 65(2) of the Domestic Building Contracts Act 2000 the respondent will pay to the Authority a penalty of $1,000 within 14 days of this order.
Each party bear its own costs.
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