Queensland Building Services Authority v Dinstarr Developments Pty Ltd - [2012] QCAT 413

CITATION:

Queensland Building Services Authority v Dinstarr Developments Pty Ltd [2012] QCAT 413

PARTIES:	Queensland Building Services Authority
v
Dinstarr Developments Pty Ltd

APPLICATION NUMBER:

OCR017-12

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Michael James Howe, Member

DELIVERED ON:

3 September 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

Dinstarr Developments Pty Ltd pay a penalty of $3,000 to the Queensland Building Services Authority by 30 November 2012.

CATCHWORDS:

Occupational regulation – builders – failure to comply with direction to rectify – disputed direction to rectify – claim that work done – factors relevant to penalty – comparable cases

Queensland Building Services Authority Act 1991, ss 3, 88, 89(j)

QBSA v Brian Frederick Blacks unreported D033/92 13 April 1993 referred to in QBSA v Reid [2012] QCAT 199
NSW Bar Association v Evatt (1968) 117 CLR 177
QBSA v Battaglia Industries Pty Ltd [2012] QCAT 3
QBSA v T & T Building Pty Ltd [2008] CCT QD009-08
QBSA v Reid [2012] QCAT 199
QBSA v LastLaugh [2011] QCAT 263

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

Background

In May 2010 Pavillions Body Corporate complained to the Authority about defective roof and guttering work done by Dinstarr.
The Authority inspected the units and obtained a report from a roofing specialist. The report identified 6 problems, two of which the Authority decided should be rectified by Dinstarr. Both of those problems were about the fall in gutters.
On 15 September, 2010 the Authority issued a request to rectify to Dinstarr. One month later a plumber was engaged to check to see if any rectification work had been done. He reported that some work had been done but not all.
On 27 January, 2011 the Authority issued a direction to rectify to Dinstarr. Rectification was required by 24 February, 2011.
In March 2011 the Authority received a letter from the body corporate complaining nothing had been done about the gutters. The Authority contacted Dinstarr. Dinstarr maintained rectification work had been done the previous October by the original contractor. The contractor said that too. The original contractor went back in April 2011 to find the problem had returned.
On 7 April, 2011 the Authority issued an infringement notice to Dinstarr imposing a $2,000 penalty.
In May 2011 Dinstarr complained that further work would be done by the contractor but the contractor had had problems involving inclement weather, the height of the roof concerned and associated workplace health and safety issues. The contractor needed another 21 days. Dinstarr wanted the direction to rectify withdrawn. The Authority refused. The infringement notice wasn't paid. The Authority has brought this disciplinary proceeding against Dinstarr.

The Proceedings

The Authority initially applied for an order that proper grounds existed for taking disciplinary action against Dinstarr, as required by the QBSA legislation[1]. In June this year at a…

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: [2012] QCAT 413
Decision Date: 3 September 2012

CaseChat Overview and Summary

In the matter of the Queensland Building Services Authority versus Dinstarr Developments Pty Ltd, the Queensland Civil and Administrative Tribunal (QCAT) examined a dispute concerning alleged non-compliance with a direction to rectify certain building works. The Authority alleged that Dinstarr had failed to comply with a direction to rectify non-compliant building work. Dinstarr argued that it had already carried out the required rectification work, and that the Authority's direction was therefore incorrect. The Tribunal was tasked with determining whether Dinstarr had indeed failed to comply with the direction, and if so, what penalty should be imposed.

The legal issues at the heart of this case revolved around the interpretation of the direction issued by the Authority, the evidence of whether Dinstarr had complied with that direction, and the appropriate penalty to be imposed if Dinstarr was found to have failed to comply. The Tribunal needed to consider the evidence presented by both parties, the relevant legislation and regulations, and any comparable cases to reach a decision.

The Tribunal concluded that Dinstarr had indeed failed to comply with the direction to rectify. It found that Dinstarr had not provided sufficient evidence to demonstrate that the required rectification work had been completed. The Tribunal also considered various factors relevant to the penalty, including the seriousness of the non-compliance, the degree of culpability, and comparable cases. After weighing these factors, the Tribunal determined that a penalty of $3,000 was appropriate.

Accordingly, the Tribunal ordered Dinstarr Developments Pty Ltd to pay a penalty of $3,000 to the Queensland Building Services Authority by 30 November 2012.

Orders

Orders of the court

Dinstarr Developments Pty Ltd pay a penalty of $3,000 to the Queensland Building Services Authority by 30 November 2012.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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