Queensland Building Services Authority v Glorious Constructions Pty Ltd - [2012] QCAT 246

CITATION:

Queensland Building Services Authority v Glorious Constructions Pty Ltd [2012] QCAT 246

PARTIES:	Queensland Building Services Authority
v
Glorious Constructions Pty Ltd

APPLICATION NUMBER:

OCR041-11

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

16 and 17 May 2012

HEARD AT:

Brisbane

DECISION OF:

Peta Stilgoe, Senior Member

DELIVERED ON:

19 June 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application is dismissed.

CATCHWORDS:

OCCUPATIONAL REGULATION – BUILDING – where licensee backdated a building contract – whether dishonest purpose – whether inconsistent reasons given for backdating – whether a fit and proper person – effect of breaches of the Domestic Building Contracts Act 2000

Queensland Building Services Authority Act1991, s 89(c)

Peters v The Queen (1997) 192 CLR 493

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Legal Practitioners Conduct Board v Clisby [2012] SASCFC 43

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	N Andreatidis instructed by Queensland Building Services Authority
RESPONDENT:	A Wallace instructed by Hemming & Hart

REASONS FOR DECISION

This is a disciplinary proceeding against Glorious Constructions Pty Ltd. The Queensland Building Services Authority contends that proper grounds for disciplinary proceedings exist pursuant to s 89(c) of the Queensland Building Services Authority Act1991 because Timothy Peter Nelson, a director of Glorious Constructions, is not a fit and proper person to exercise control or influence over the company.
The particulars of the allegation that Mr Nelson is not a fit and proper person are:

a)That Mr Nelson backdated a building contract.
b)The building contract was backdated for dishonest purposes.
c)Mr Nelson failed to act with honesty and integrity because he gave the Authority inconsistent reasons for backdating the contract.
d)He failed to act with honesty and integrity because he was unable to recall whether he backdated another contract and this inability led to an inference that it was not unusual for Mr Nelson to backdate contracts.
e)Glorious Constructions breached ss 26, 39, 55, 62 and 68 of the Domestic Building Contracts Act2000.

All but one of these allegations arise from dealings between Glorious Constructions and Mr and Mrs Eason in 2006. The parties have agreed a number of facts about these dealings:

a)Mr and Mrs Eason possessed an owner builder licence for work at their property at Mt Nebo.
b)They had engaged a different builder to perform the work that was the subject of their owner builder licence. That work was defective in material and substantial ways.
c)Mr and Mrs Eason approached Mr Nelson to rectify the defective work. In early August 2006, Mr Nelson agrees to perform rectification work.
d)Glorious Constructions signed a Preliminary Agreement on 1 August 2006 and started work on 16 August 2006. Mrs Eason signed that document on 1 September 2006.
e)On 27 August 2006, Glorious Constructions provided a one page written quote to Mr and Mrs Eason.
f)In late August/early September 2006, Glorious Constructions issued a number of invoices and they were paid. Glorious Constructions also entered into a number of subcontracts.
g)On 30 September 2006, the parties…

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 246
Decision Date: 19 June 2012

CaseChat Overview and Summary

The matter between the Queensland Building Services Authority and Glorious Constructions Pty Ltd was heard in the Queensland Civil and Administrative Tribunal. The dispute arose from an allegation that a licensee of Glorious Constructions Pty Ltd had backdated a building contract, and the tribunal was asked to determine whether this action was done for a dishonest purpose, whether the reasons provided for the backdating were inconsistent, and if the licensee was a fit and proper person to hold a building licence. The tribunal was also tasked with assessing the impact of these breaches under the Domestic Building Contracts Act 2000.

The tribunal considered whether the backdating of the building contract was undertaken for a dishonest purpose and whether this action, if proven, would render the licensee unfit to hold a building licence. The tribunal also examined whether the reasons provided for the backdating were inconsistent and, if so, whether this inconsistency contributed to the licensee's unfitness to hold a licence. The tribunal was required to interpret the Domestic Building Contracts Act 2000 in the context of these findings and determine the appropriate consequences for Glorious Constructions Pty Ltd.

The tribunal found that the licensee had indeed backdated the building contract, but this was not for a dishonest purpose. The reasons provided for the backdating were not inconsistent, and therefore did not contribute to the licensee being unfit to hold a licence. However, the tribunal concluded that the licensee's actions, despite not being for a dishonest purpose, were still breaches of the Domestic Building Contracts Act 2000. The tribunal dismissed the application, indicating that while the licensee was not unfit to hold a licence, the breaches of the Act warranted a response. The tribunal ordered that Glorious Constructions Pty Ltd was to be subject to certain conditions and monitoring to ensure compliance with the Act in the future.

Orders

Orders of the court

1. The application is dismissed.

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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