Queensland Building Services Authority v Dinstarr Developments Pty Ltd
[2012] QCAT 413
•3 September 2012
| 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 |
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 compulsory conference Dinstarr agreed that proper grounds had existed. Given that concession the only outstanding matters now are as to penalty and costs.
[1] Section 88 Queensland Building Services Authority Act 1991.
The Authority’s Submissions
The Authority submits there are a number of factors relevant to penalty. The penalty imposed should act as a deterrent to conduct of the type involved here, both to Dinstarr and others generally. Dinstarr cancelled its QBSA licence on 20 October, 2010 and so the direct deterrent to that company may be of somewhat reduced effect.
[10]Also relevant says the Authority is that consumers should not lose confidence in the industry and that confidence will be lost if they see the Authority's directions to rectify disobeyed.
[11]The gravity of Dinstarr’s conduct against the objects of the legislation must be assessed.
[12]Dinstarr did try to rectify the defective work but the attempts were not satisfactory. They should be considered a mitigating circumstance as to penalty. In all the circumstances the Authority suggests the penalty in the range of $3,000-$5,000. The Authority does not seek costs.
The Legislation
[13]The object of the QBSA legislation is to maintain proper standards in the building industry, achieving a balance between the interests of building contractors and consumers with remedies for defective building work, and all whilst educating those involved in the industry[2].
[2] Section 3.
[14]The Authority submits the gravity of Dinstarr's conduct must be assessed against those objects.
[15]The imposition of penalties is part of maintenance of proper standards, not simply punishment for the wrongdoing. It is now well established that the purpose of disciplinary sanctions is the protection of interests and standards rather than punitive response.[3]
[3]NSW Bar Association v Evatt (1968) 117 CLR 177; QBSA v Battaglia Industries Pty Ltd [2012] QCAT 3 and the cases cited there by Dr Forbes
[16]Though eventually conceded by Dinstarr, Dinstarr and other licensees must understand that the proper ground for disciplinary action here is the failure to comply with the direction to rectify or complete tribunal work[4]. The breach was constituted immediately the direction to rectify was not complied with, regardless of the reason why[5].
[4] Section 89(j).
[5]QBSA v Brian Frederick Blacks unreported D033/92 13 April 1993 referred to in QBSA v Reid [2012] QCAT 199.
Dinstarr's Submissions on Penalty and Costs
[17]Dinstarr says its previous good history should be taken into account and the likelihood of the situation arising again is improbable. Both those submissions are valid and I do take them into account.
[18]Dinstarr also says that the rectification work was hampered by the height of the roof and safety considerations, as well as wet weather and a denial of access by the owner.
[19]I do not accept that height and safety features prevented compliance with the direction to rectify during the 28 days leading up to 24 February, 2011. Such problems are not that unusual in this industry and they simply had to be factored into the required remedial actions.
[20]Further as to the weather being an issue, Dinstarr itself says the rectification work amounted to some 2 hours work for a roofing plumber. I cannot accept there was no window of opportunity in the 28 day rectification period to do that.
[21]As to denial of access by Pavillions Body Corporate, there was no denial during the 28 day period of the direction to rectify. The complaint of Pavillions Body Corporate was that no one bothered to show during the 28 days to do anything.
[22]Dinstarr’s other submission is that there was a problem with communication between it and the Authority. Dinstarr says the Authority had a breakdown in communication and didn't provide it with a necessary report at the critical time of notification of the direction to rectify.
[23]Dinstarr was first contacted by the Authority about problems with the building on 18 May, 2010 by telephone. There was an inspection of the property on 7 June 2010 by Mr Starret of Dinstarr amongst others. A roofing report was done by an independent contractor on 5 July, 2010.
[24]Then there was a telephone call by Mr Lowrie of the Authority to Mr Starret on 15 September, 2010. The report was obviously referred to during that conversation because Mr Lowrie states Mr Starret gave a verbal commitment to rectify the problem with falls on the gutters as identified by the roofing report.
[25]On 24 September, 2010 a letter was sent by the Authority to Dinstarr confirming that items 1 and 6 of the report, which was attached, were to be rectified.
[26]Eventually on 27 January, 2011 the Authority issued the direction to rectify.
[27]In light of this order of events I cannot accept there was a breakdown in communication caused by the Authority. If there was a misunderstanding I suspect it was one between Dinstarr and its original contractor about what amounted to adequate rectification work. Dinstarr had every opportunity to get the rectification work done. It disputed the work was necessary, and then it disputed what had to be done to rectify.
Appropriate Penalty
[28]The Authority cited a number of previous decisions on penalties for guidance. It is important that there be consistency. Some of the decisions were unhelpful because the builder had made no attempt at rectification at all. That is not the case here where the rectification was late and ineffective.
[29]There are a number of other matters I should mention however. There has not been any claim on the statutory insurance fund because the work was not residential building work. Additionally, the cost of repairs does not appear significant.
[30]I assume the gutter falls have now been fixed, although that has not been confirmed by either party. I would expect that information to be given by the Authority if it was not the case and the Body Corporate was still complaining.
[31]Dinstarr eventually accepted the validity of the direction to rectify and has obviated the need for a hearing on the point. Accepting the validity of the direction to rectify does not mean however that there should be no penalty.
[32]I have taken into account a number of other decisions involving contractors in circumstances not dissimilar to those here and the penalties imposed as a result of a failure to comply with a direction to rectify.
[33]In QBSA v T & T[6] the builder completed the work required in a direction to rectify but outside the nominated period. A $3,000 penalty was imposed.
[6] QBSA v T & T Building Pty Ltd [2008] CCT QD009-08.
[34]In QBSA v Reid[7] the builder made attempts to rectify but they were insufficient and delayed outside the requisite time. The builder had a penalty of $3,000 imposed and costs of $1,500 ordered paid.
[7] [2012] QCAT 199.
[35]In QBSA v LastLaugh[8] the licensee contested whether it rather than a contractor was responsible to perform rectification work in the direction to rectify and the work was not done in time. A penalty of $3,000 was imposed and costs of $1,500 ordered to be paid.
[8] [2011] QCAT 263.
[36]In all the circumstances, and bearing in mind the scheme of the legislation and the requirement of penalty to act as deterrent, the appropriate penalty in my opinion is $3,000, no order as to costs and time to pay.
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