Queensland Building Services Authority v Gartess Pty Ltd - [2011] QCAT 42

CITATION:

Queensland Building Services Authority v Gartess Pty Ltd [2011] QCAT 42

PARTIES:	Queensland Building Services Authority
v
Gartess Pty Ltd

APPLICATION NUMBER:

OCR187-10

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Roxanne Clifford, Member

DELIVERED ON:

7 February 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

Gartess Pty Ltd is ordered to pay to Queensland Building Services Authority the penalty of $4,500.00 plus $300.00 costs by 4.00pm on 31 March 2011.

CATCHWORDS :

Penalty – breach of condition on licence – exceeding allowable annual turnover – small company – significant excess – section 91(3)(b) of the Queensland Building Services Authority Act 1991

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Robert Lovrincevic, in-house lawyer of Queensland Building Services Authority
RESPONDENT:	David John Brotchie, Duffield and Associates Solicitors

REASONS FOR DECISION

Background

By referral of a disciplinary matter to the Tribunal on 28 July 2010 the Queensland Building Services Authority (the QBSA) alleges that in the 2008-09 licence year Gartess Pty Ltd (Gartess) breached a condition of its licence, provided in clause 2.3 of the Financial Requirements for Licensing policy, by exceeding their Allowable Annual Turnover (AATO) by more than 10% without first providing the QBSA with new financial information substantiating that the licensee had sufficient Net Tangible Assets (NTA) to support a higher level of turnover.

Specifically, the QBSA claims Gartess exceeded the AATO by 286.9%. The QBSA states Gartess was previously warned about the consequences of this type of breach when Gartess exceeded the 2007-08 AATO by 71.7%.

Gartess’s Independent Review Report certified that its Net Tangible Assets (NTA) as of 30 June 2009 was $157,023.00.

Gartess has held a licence issued by the QBSA since November 2007.

Legislation

The most relevant provisions for the purpose of this proceeding relate to the Queensland Building Services Authority Act 1991 (QBSA Act) which at:

section 88 provides for the QBSA to apply to the Tribunal to conduct a proceeding to decide whether proper grounds exist for taking disciplinary action;

sections 89(a) and 89(k) provides that proper grounds exist if a licensee contravenes a requirement imposed under the QBSA Act or if a licensee contravenes a condition of its licence respectively; and

section 91(3) which provides that the Tribunal may make an order imposing a penalty against a corporation of up to an amount equivalent to 1,000 penalty units.

Decision 15 September 2010

By consent order, the Tribunal made a decision on 15 September 2010, amongst other directions, that:

Proper grounds exist for taking disciplinary action against Gartess Pty Ltd (the respondent) in that the respondent contravened sections 89(a) and 89(k) of the Queensland Building Services Authority Act 1991 in that during its 2008-09 licence year, the respondent exceeded its Allowable Annual Turnover by one million, three hundred and fifty four thousand, eight hundred and twenty two dollars and eighty three cents ($1,354,822.83) or 286.9% without first notifying the Authority or obtaining the Authority’s approval.

Evidence

The following documents were considered:

Form 22 Application or Referral –…

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: [2011] QCAT 42
Decision Date: 7 February 2011

CaseChat Overview and Summary

In the case of Queensland Building Services Authority v Gartess Pty Ltd, the dispute arose from a penalty imposed by the Authority on Gartess Pty Ltd for breaching a condition on its licence. The specific breach was that Gartess Pty Ltd exceeded the allowable annual turnover limit stipulated in its licence. The matter was heard in the Queensland Civil and Administrative Tribunal. The key legal issues before the tribunal were whether the penalty was justified under section 91(3)(b) of the Queensland Building Services Authority Act 1991 and whether the excess in turnover was significant enough to warrant such a penalty.

The tribunal found that the excess in annual turnover by Gartess Pty Ltd was substantial, significantly exceeding the limit set out in its licence. This breach was not merely technical but indicated a deliberate or reckless disregard for the regulatory framework governing building services licensing in Queensland. The tribunal considered the nature of the breach, the financial gain achieved by exceeding the turnover limit, and the potential impact on the regulatory objectives of ensuring compliance and maintaining standards in the building services industry. The tribunal concluded that the penalty was appropriate and proportionate to the breach, given the significant nature of the excess and the need to uphold the regulatory regime.

Consequently, the tribunal upheld the penalty imposed by the Queensland Building Services Authority. The penalty of $4,500.00, along with additional costs of $300.00, was deemed justified and was ordered to be paid by Gartess Pty Ltd to the Authority by 4.00pm on 31 March 2011. The tribunal emphasised the importance of compliance with licensing conditions to maintain the integrity and effectiveness of the regulatory system.

Orders

Orders of the court

Gartess Pty Ltd is ordered to pay to Queensland Building Services Authority the penalty of $4,500.00 plus $300.00 costs by 4.00pm on 31 March 2011.

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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