Queensland Building Services Authority v Maurer
[2010] QCAT 514
•18 October 2010
| CITATION: | Queensland Building Services Authority v Maurer [2010] QCAT 514 |
| PARTIES: | Queensland Building Services Authority |
| v | |
| Mr Ian Searl Maurer |
| APPLICATION NUMBER: | OCR051-09 |
| MATTER TYPE: | Occupational regulation matters – building – penalty and costs decision. |
| HEARING DATE: | On the papers. |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr Bridget Cullen Mandikos, Member |
| DELIVERED ON: | 18 October 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The Respondent to pay to the Queensland Building Services Authority by way of penalty the sum of FIVE THOUSAND DOLLARS ($5,000.00) by 4:00 pm on Wednesday, 24 November 2010. 2. The parties to bear their own costs of and incidental to these proceedings |
| CATCHWORDS : | REVIEW OF BUILDING DISCIPLINARY DECISION – License Lending – Penalty imposed for contravention. Queensland Building Services Authority Act 1991, section 51(1) Queensland Building Services Authority v Acimovic Milan John D178-96 [1996] QBT 202 (1 October 1996) |
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
History of the Matter
This disciplinary proceeding was referred to the Queensland Civil and Administrative Tribunal (“QCAT”) by the Queensland Building Services Authority (“QBSA”), in its capacity as the industry regulator.
The Respondent, Mr Ian Searl Maurer (“Mr Maurer”) is a licensed contractor.
On 25 September 2008, the QBSA issued Mr Maurer with Infringement Notice Number 7931, alleging that Mr Maurer had engaged in ‘license lending’ in contravention of section 51(1) of the Queensland Building Services Authority Act 1991 (QBSA Act).
Following hearing on 5 August 2010, Member Stilgoe decided that Mr Maurer had contravened section 51(1)(a) of the QBSA Act and that proper grounds existed for the taking of disciplinary action against Mr Maurer pursuant to section 89A of the QBSA Act.
Member Stilgoe directed that the parties file and serve submissions in relation to penalty, and further directed that the issues of penalty and costs would be determined on the papers. The parties have now complied with Member Stilgoe’s directions, and it is the decision in relation to penalty and costs that is now before me.
Circumstances leading to disciplinary proceedings
While it has already been decided by QCAT that Mr Maurer did contravene the QBSA Act by licence lending, it is necessary to briefly traverse the circumstances leading to the disciplinary action, in order to place the penalty in context.
Following the making of an anonymous complaint on 4 August 2008, the QBSA commenced an investigation in relation to a quotation that was issued to Mackay Home Assist Service by MJ Builders for the construction of a single bedroom dwelling at 6 Brennan Street, Dystart (“the Property”) on 15 June 2008. The complaint concerned a false license number (#1094031), which was being utilised by MJ Builders. A search of the license number by the Applicant revealed that it belonged to Mr Maurer. MJ Builders, operated by Mark Jones (“Mr Jones”) is not a licensed contractor.
On or about 10 December 2008, the QBSA had a telephone conversation with Mr Maurer in which Mr Maurer admitted to his “arrangement with Mark Jones for the use of his contractor’s license”. Mr Maurer claimed he was going to apply for a company license and use Mr Jones as the nominee, and further admitted to knowing about the quote for the property.[1]
[1] “RP-1” Affidavit of Rachel Protheroe (Queensland Building Services Authority Compliance Officer), sworn to 2 August 2010 (hereafter “RP-#”).
On 26 February 2009, the QBSA received from Mr Maurer a letter dated 15 March 2007 which authorised Mr Jones trading as MJ Builders to carry out construction work using the Respondent’s license number #1094031. Mr Maurer’s digital signature appears at the bottom of the letter.[2]
[2] “RP-6” Letter of Authorisation with Digital Signature.
10. Also on 26 February 2009, the QBSA received from Mr Maurer a letter dated 5 January 2008 in which Mr Maurer suggested that Mr Jones trading as MJ Builders use his contractor’s license for work and pay him a fee based on a percentage of the profit. [3]
[3] “RP-7” Letter for Percentage of Profit.
11. Mr Maurer, in his submissions on penalty, filed in QCAT on 19 August 2010, makes specific reference to conditions that he says he imposed upon MJ Builders to comply with prior to utilising his license number, including a requirement for Mr Jones to register MJ Builders as a company, nominating Mr Maurer as the nominee. According to the facts, however, this was not done. Mr Maurer further indicates that he believed that Mr Jones had thereafter given up building, as he was called up to provide an employment reference to “BMA” on Mr Jones’ behalf. Mr Maurer says that this reference was provided in good faith; with the real assumption that Mark had given up any aspiration to become a builder and instead begin employment with “BMA-Coal”.
12. Furthermore, Mr Maurer has made submissions indicating a serious health incident in Thailand which subsequently made it difficult for him to remain in control of this situation. He further submits that the Tribunal should consider the volatility of his current financial situation, which he says is partly due to a “large fraud case against himself and others by my accountant and his criminal associates,” the “world financial downturn”’ (in his submissions), coupled with the difficulties he is experiencing trying to “survive” on the Centrelink Pension.[4]
[4] “Respondent Submissions on Penalty” filed in QCAT on 19 August 2010.
Penalty parameters
13. Mr Maurer contravened section 51(1)(a) of the QBSA Act, which provides as follows:
51 Improper use of licence card, certificate, number or PIN
(1) A licensee must not allow another person to make use of the licensee’s licence if the licensee knows, or ought reasonably to know, that the other person intends to make use of the licence—
(a) if the other person is not also a licensee—to pretend to be a licensee;
Maximum penalty—250 penalty units.
14. Each penalty unit is presently valued at $100.00: section 5 Penalties and Sentences Act 1992 (Qld). Thus, the maximum penalty that the Tribunal may impose is $25,000.00 in this case.
Decision on Penalty
15. The circumstances presented in Queensland Building Services Authority v Acimovic Milan John D178-96 [1996] QBT 202 (1 October 1996)(“Acimovic”), are somewhat analogous to those presenting here, also involving licence lending for the purposes of building domestic premises. As in this case, the builder had a relationship with the involved parties in Acimovic. The Member in Acimovic had regard to this in making the decision, finding:
“Why he did what he did is beyond me, but it seemed to be to help out a friend. Taking all these factors into account, I impose a penalty of $1,500.00.”
16. I note that Acimovic was decided 14 years ago, meaning that inflation and present-value-for-a-dollar place the penalty imposed in Acimovic as not in keeping with today’s economy. Furthermore, in Acimovic, there was reliance placed on the fact that the builder did not profit. Here, the evidence doesn’t establish that Mr Maurer profited, but does indicate that it was his intention to do so.
17. Considering Mr Maurer’s age (nearly 70), health circumstances, and factors discussed above, I consider that a penalty of $5,000.00 is appropriate.
18. In consideration of the impact of section 100 of the QCAT Act on costs, I order that the parties are to bear their own costs of and incidental to these proceedings.
Orders
1.The Respondent to pay to the Queensland Building Services Authority by way of penalty the sum of FIVE THOUSAND DOLLARS ($5,000.00) by 4:00 pm on Wednesday, 24 November 2010.
2.The parties to bear their own costs of and incidental to these proceedings.
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