Queensland Building Services Authority v Dankav Pty Ltd - [2013] QCAT 751

CITATION:

Queensland Building Services Authority v Dankav Pty Ltd [2013] QCAT 751

PARTIES:	Queensland Building Services Authority (Applicant)
v
Dankav Pty Ltd (Respondent)

APPLICATION NUMBER:

OCR134-13

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Rogers

DELIVERED ON:

25 November 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

That Dankav Pty Ltd pay to the Queensland Building Services Authority a penalty of $12,500 on or before 31 January 2014.

CATCHWORDS:

Exceeding Annual Allowable Turnover – three breaches – impact of unpredictable events- nature of business.

Queensland Building Services Authority Act 1991 (Qld) ss 89(a), 89(b), 91(3)
Penalty and Sentences Act 1992 (Qld) s 5

Queensland Building Services Authority v Uniport Australia Pty Ltd [2009] QCAT 33
Queensland Building Services Authority v

Megasealed Bathrooms Aust. Pty Ltd [2013] QCAT
Queensland Building Services Authority v Peninsula Construction Group (Qld) Pty Ltd, [2009] QCAT 42
Queensland Building Services Authority v Thomas Coffey Ltd[1] [2006] CCT QD003-06

Queensland Building Services Authority v Battaglia Industries Pty Ltd [2012] QCAT 3
Queensland Building Services Authority v Classic Brick and Block Pty Ltd [2011] QCAT 130
Queensland Building Services Authority v Mainbrace Constructions (NSW) Pty Ltd [2011] QCAT 933

[1] [2006] CCT QD003-06.

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

Dankav Pty Ltd is a company engaged in building reconstruction services following unpredicted events such as flood, cyclone, fire and storm.
Dankav consented to a finding that proper grounds exist for disciplinary action to be taken against it under s 89 of the Queensland Building Services Authority Act 1991 (Qld) for exceeding its Annual Allowable Turnover (AATO) in the 2007-8, 2010-11 and 2011-12 licence years by more than the permitted 10% without first notifying the Queensland Building Services Authority it was likely to do so and obtaining the Authority’s approval.
The issue to be determined by this Tribunal is the appropriate penalty for these three breaches. It may impose a penalty up to 1000 penalty units equating for the years in question to $100,000.[2]
²Queensland Building Services Authority Act 1991 (Qld) s 91(3) and Penalty and Sentences Act 1992 (Qld) s 5.
Previous cases[3] have provided guidance by identifying the factors that are relevant when deciding the appropriate penalty and those factors will now be considered.
[3] Queensland Building Services Authority v Built Qld Pty Ltd [2005] CCT L018-05 at [45].
The length of time the licensee has been in business.
Dankav was registered as a company on 3 August 2006. It was issued with a licence classes ‘Builder – Open’ and Plumbing and Drainage’ by the Authority on 30 August 2006 and a further licence class ‘Builder-Low Rise’ on 1 August 2007. The breaches occurred in the second, fifth and sixth years of its operation
The number of breaches, the amount by which the AATO was breached and the size of the respondent’s business.
There are three…

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 751
Decision Date

CaseChat Overview and Summary

The Queensland Building Services Authority brought an action against Dankav Pty Ltd, a company involved in building reconstruction services, for exceeding its Annual Allowable Turnover (AATO) in three separate licence years without notifying the Authority and obtaining approval. Dankav consented to a finding that there are proper grounds for disciplinary action under the Queensland Building Services Authority Act 1991 (Qld). The Tribunal was required to determine the appropriate penalty for these breaches, with the maximum penalty being 1000 penalty units, which equates to $100,000 for the years in question.

The Tribunal considered the following factors in determining the appropriate penalty: the length of time Dankav had been in business, the number of breaches, the extent by which the AATO was exceeded, the explanation for the breach, whether the breach was likely to recur, previous failures to comply with statutory standards and warnings, and the submissions of both parties regarding the appropriate penalty. Dankav argued that the breaches were due to the unpredictable nature of its business, which involves responding to natural disasters, and that it had taken steps to avoid future breaches. The Authority argued that a penalty in the range of $20,000-$25,000 was appropriate given the pattern of contravening behaviour and the need for general and specific deterrence.

After considering the relevant factors and the circumstances of previous cases, the Tribunal decided to impose a penalty of $12,500. The Tribunal ordered that Dankav pay the amount of $12,500 to the Authority on or before 31 January 2014. Both parties were ordered to bear their own costs of or incidental to these proceedings.

Orders