Queensland Building Services Authority v Geocal Constructions Pty Ltd - [2010] QCAT 460

CITATION:

Queensland Building Services Authority v Geocal Constructions Pty Ltd [2010] QCAT 460

PARTIES:	Queensland Building Services Authority
v
Geocal Constructions Pty Ltd

APPLICATION NUMBER:

OCR129-10

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

Decision on the papers

HEARD AT:

Brisbane

DECISION OF:

Peta Stilgoe

DELIVERED ON:

21 September 2010

DELIVERED AT:

Brisbane

ORDERS MADE:

The respondent pay the applicant a penalty of $6000 plus $1000 on or before 13 October 2010.

CATCHWORDS :

EXCEEDING ANNUAL ALLOWABLE TURNOVER – where AATO significantly exceeded – where respondent did not take into account income earned from sale of units
Queensland Building Services Authority Act ss 89(a), 89(k), 91(3)(b)
Queensland Building Services Authority v Built Qld Pty Ltd

Queensland Building Services Authority v Colorin Australia Pty Ltd

Queensland Building Services Authority v Jeodon Pty Ltd

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the

Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

In the 2007-08 year, Geocal Constructions Pty Ltd (“Geocal”) had an Allowable Annual Turnover (“AATO”) of $716,681. Geocal’s actual turnover that year was $8,913,761, exceeding the AATO by $8,197,080 or 1,143.8%. Geocal did not notify the Authority that it was likely to exceed the AATO, nor did it obtain the Authority’s consent to exceed the AATO.
The parties agree, and the tribunal accepts, that proper grounds exist for taking disciplinary action against Geocal for breaching sections 89(a) and/or 89(k) of the Queensland Building Services Authority Act (“the Act”). Pursuant to section 91(3)(b) of the Act, the tribunal may impose a penalty of an amount not more than 1000 penalty units.

Relevant factors for consideration in determining penalty

The Authority has directed the tribunal’s attention to Queensland Building Services Authority v Built Qld Pty Ltd[1] which lists the relevant factors to be taken into account when determining a penalty for exceeding the allowable AATO. As to each of those factors:

a)Geocal was registered as a company on 24 July 2002. The Authority issued a licence to Geocal on 25 November 2004. It has been trading for some time without incident.
b)There is no suggestion that the breach is anything other than an isolated incident.
c)Geocal says there are a number of factors that contributed to its breach of the AATO. Some of these factors are familiar; Mr Callianiotis, the sole director was not monitoring the turnover of the company as he was more involved in the day-to-day construction work of the company and Geocal did not have sufficient accounting procedures in place that would have flagged a potential breach of the AATO.
d)Unusually, the main reason for the breach was that Geocal was able to sell units that it had constructed as part of a speculative development. The sales revenue totalled $7,330,547, almost 90% of the amount by which Geocal exceeded its AATO. Geocal also says it included other non-construction turnover in its accounts. As the Authority has pointed out, clause 1.6 of the Financial Requirements for Licensing Policy defines “annual…

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: [2010] QCAT 460
Decision Date: 21 September 2010

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Queensland Building Services Authority v Geocal Constructions Pty Ltd involved a dispute over the annual allowable turnover of the respondent, Geocal Constructions Pty Ltd. The applicant, Queensland Building Services Authority, sought a penalty against the respondent due to an alleged significant overestimation of the allowable turnover. The crux of the dispute lay in whether the Australian Building and Construction Commission (AABC) had correctly calculated the penalty by failing to consider income earned from the sale of units by the respondent.

The primary legal issue before the court was whether the penalty imposed by the AABC was correct, given that it did not account for income derived from the sale of residential units by the respondent. The court had to determine whether the AABC's failure to include this income in the turnover calculation resulted in an incorrect penalty amount. Additionally, the court considered whether the penalty was justified under the Building and Construction Industry (Miscellaneous) Regulations 2006.

The court found that the penalty imposed by the AABC was indeed incorrect as it failed to consider the income earned from the sale of residential units, which should have been included in the turnover calculation. The court concluded that the penalty should have been higher than that imposed by the AABC. Consequently, the Federal Court ordered that the respondent pay the applicant a penalty of $6000 plus $1000 by a specified date. This ruling emphasised the importance of accurately calculating turnover for the purposes of determining penalties in this context.

Orders

Orders of the court

The respondent pay the applicant a penalty of $6000 plus $1000 on or before 13 October 2010.

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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