Queensland Building Services Authority v Mine-Con Plumbing Pty Ltd
[2009] QCAT 32
•7 December 2009
Citation:Queensland Building Services Authority v Mine-Con Plumbing Pty Ltd [2009] QCAT 32
Parties: QUEENSLAND BUILDING SERVICES AUTHORITY
v
MINE-CON PLUMBING PTY LTD
Application No: QD027-09
Matter type: Occupational regulation matters
Delivered on: 7 December 2009
Delivered at: Brisbane
Decision on the
Papers of: Dr Bridget Cullen Mandikos
Catchwords: Allowable Annual Turnover; Penalty for contravention of section 89 Queensland Building Services Authority Act 1991; Queensland Building Services Authority v Marveldale Pty Ltd [2006] CCT QD001-06; Queensland Building Services Authority v FDC Construction & Fitout Pty Ltd [2009] QCCTB 16; Queensland Building Services Authority v Built Qld Pty Ltd [2005] QCCTB 152; Queensland Building Services Authority v Sunland Constructions Pty Ltd [2004] QCCTB 49; Queensland Building Services Authority v Jordan Constructions Co Pty Ltd [2007] QCCTB 131.
Reasons for Decision
Introduction
This application for disciplinary proceedings was brought by the Queensland Building Services Authority (“the Authority”) against the respondent, alleging that the respondent, as a licensee, had contravened a requirement imposed by the Queensland Building Services Authority Act 1991 (“the QBSA Act”), and had contravened a condition of its license. The basis for the Authority’s application was that, for the license year 2008 - 2009, the respondent had exceeded itsallowable annual turnover (“AATO”) by two-million, one-hundred and thirty-three thousand, seven-hundred and fifteen dollars ($2,133,715.00) equating to a breach of 711.2%. The respondent’sallowable AATO turnoverfor the relevant period was $300,000.00.
Upon consideration of a Consent Notice signed on behalf of the parties and filed on 18th September 2009, the then Commercial and Consumer Tribunal (Ms Schafer, Chairperson) ordered that proper grounds existed for taking the aforementioned disciplinary action against the respondent. The Order further stipulated that the question of penalty would be made on the papers. Both parties filed submissions, and I note that the respondent filed submissions with the benefit of legal representation.
The Order, dated 21st September 2009 contains an error that needs to be rectified within the terms set out in this Order. Specifically, although the 21st September 2009 Order indicates in words that the AATO was exceeded by “two million, one hundred and thirty three thousand, seven hundred and fifteen dollars,” the numerical figure reflects “$1,133,715.00”. I note that the Form 6 Consent Notice, signed by both parties, reflects a figure of “$2,133,715,” as do the written submissions filed by both parties with regard to penalty. Accordingly, I now correct this discrepancy and Order that this figure be corrected to reflect the intention of the parties and the then Commercial and Consumer Tribunal to indicate a consistent numerical figure of $2,133,715.00.
The Commercial and Consumer Tribunal has amalgamated into the Queensland Civil and Administrative Tribunal (“QCAT”). QCAT now hears and decides all matters previously dealt with by the Commercial and Consumer Tribunal: section 256 Queensland Civil and Administrative Tribunal Act 2009.
Submissions of the parties
For reasons of efficiency, both the Applicant Authority and Respondent’s submissions are reproduced in their entirety, in italicised text, below. Whilst I do not propose to address each element of the submissions in my decision, I have considered the entirety of them in forming my view.
Applicant Authority’s submissions
In accordance with the Order of the Commercial and Consumer Tribunal (the “Tribunal”) dated 21 September 2009, the Queensland Building Services Authority (the “Authority”) provides the following submissions on penalty.
Preliminary Matters
1. The Tribunal has ordered that proper grounds exist for taking disciplinary action against the Respondent in that it contravened sections 89(a) and / or 89(k) of the Queensland Building Services Authority Act 1991 (“QBSA Act”) in that, during its licence year 2008-09, it exceeded itsAllowable Annual Turnover(“AATO”) two million, one hundred and thirty-three thousand, seven hundred and fifteen dollars ($2,133,715) or 711.2% without first notifying the Authority or obtaining the Authority’s approval.
2. The Authority reads the following material:
(a) From 1QD Application – Disciplinary Proceeding filed on 4 August 2009 (together with attachments); and
(b) The Affidavit of Michelle Ann Lockton sworn on 31 July 2009.
3. Pursuant to section 107(2)(b) of the Commercial and Consumer Tribunal Act 2003 (“CCT Act”), the Tribunal may make an order imposing a penalty, for a corporation, up to an amount equivalent to 1000 penalty units. The present value of a penalty unit is $100. Therefore, the maximum penalty that may be imposed is $100,000. There is no minimum penalty.
Factors Relevant to Assessing Penalty
4. In the matter of Queensland Building Services Authority v Built Qld Pty Ltd, the Tribunal listed the relevant factors to be taken into account when determining penalty in matters involving a licensee’s breach of their AATO:
i.the length of time the licensee has been in business;
ii.whether the breach was an isolated incident or whether there was more than one breach;
iii.whether there is a satisfactory explanation for the occurrence of the breach;
iv.whether the breach is likely to reoccur;
v.the size of the licensee’s business or company, both relative to the size of the breach and generally;
vi.the amount by which the AATO was exceeded, both in monetary and in percentage terms; and
vii.whether the licensee has been involved in previous events of this nature, or other offences against statutory obligations and / or failure to comply with statutory standards.
5. As is the case in all disciplinary proceedings, the primary purpose of these proceedings is to protect the public and uphold the statutory regulatory scheme.
6. It follows that in respect of any penalty imposed in these proceedings, the penalty should be in the nature of a deterrent, rather than a punishment.
Submissions on Penalty
7. The Respondent was apparently registered as a company on 16 November 2004.
8. On 20 January 2005 the Authority issued the respondent with a licence, originally in the classes of ‘Plumbing and Drainage’ and ‘Fire Hose Reels and Fire Hydrants’. The Authority has since transitioned the class of ‘Fire Hose Reels and Fire Hydrants’ to a new class of ‘Fire Hydrants and Hose Reels’.
9. Over the past four years, the Respondent has been advised on numerous occasions of its licence obligations, for example each year in its renewal application, as well as in its annual renewal notice from the Authority detailing the Respondent’s AATO for the coming licence year and associated licence conditions.
10. The Authority submits the Respondent has not provided a satisfactory explanation for the occurrence of the breach, or indeed any explanation at all.
11. The Authority contends it is of primary importance that licensees both understand and abide by their statutory obligations, including their duty to inform the Authority of changes in financial standing.
12. The Authority submits that it is difficult to determine whether or not it is likely the Respondent will again breach its AATO. The Authority submits the Respondent should demonstrate it has ongoing accounting and business forecasting measures in place to ensure the breach does not occur again in the future.
13. In the absence of the Respondent putting in place appropriate measures to reduce the likelihood of a further breach, it is submitted that any penalty ordered by the Tribunal should be sufficiently significant to encourage the Respondent to take such action. A significant penalty will serve the purposes of these proceedings by encouraging compliance with the regulatory scheme and thus protect members of the public.
14. The Respondent is a medium-sized business. At the time of the breach, the Respondent’s Net Tangible Assets (“NTA”) were declared to be of at least $18,000. However, in its current licence year, 2009-10, the Respondent has obtained an increase in its AATO to eight million, five hundred and ninety-four thousand, six hundred and fifty-six dollars ($8,594,656) on the basis of a report of the Respondent’s NTA being provided as three hundred and fifty-seven thousand, four hundred and eight dollars ($357,408).
15. The Authority submits this circumstance should not result in a more lenient penalty being ordered.
16. The Respondent breached its AATO of three hundred thousand dollars ($300,000) because its Actual Annual Turnover was two million, four hundred and thirty-three thousand, seven hundred and fifteen dollars ($2,433,715).
17. The Authority submits the most significant aspect of the Respondent’s breach is the fact the Respondent exceeded its AATO by 711.2% - that is, more than 71 times the 10% leeway allowed under the ‘Financial Requirements for Licensing’ Policy.
18. In doing so, the Authority submits that based on the monetary value of the breach at two million, one hundred and thirty-three thousand, seven hundred and fifteen dollars ($2,133,715), the Respondent must have known, or ought to have known, of the breach. If the Respondent was somehow unaware of the breach, this fact in itself would demonstrate the Respondent’s systems for monitoring turnover are manifestly inadequate.
19. The breach should properly be seen as a deliberate breach rather than an oversight.
20. The Authority submits that a deterrent affect is unlikely to occur should the penalty ordered be insignificant proportionate to the benefit gained by the Respondent. A monetary penalty should not be merely factored into the Respondent’s (or other licensee’s) business practices.
21. The Authority submits that the primary purpose of the ‘Financial Requirements for Licensing’ Policy is to avoid situations where licensees trade beyond their means, and are unable to honour their liabilities to consumers, contractors and suppliers.
22. The Authority’s role as regulator is undermined when licensees breach the financial conditions of their licence. Rapid growth without proper monitoring causes serious concerns to the building industry generally. All parties dealing with licensees deserve to have confidence they are trading with a substantive entity with proven financial wellbeing.
23. When the Respondent traded in breach of its licence conditions it may well have put other parties at risk.
24. The Authority submits the penalty ordered must deter breaches, both by the Respondent and licenses generally. It must also encourage “licensees to be fully aware of the requirements of their licence and their obligations to the Authority”.
Comparative Cases
25. The Authority submits that, when considering penalties ordered in comparative cases, the Tribunal should be mindful of the fact the maximum penalty has recently risen by 33%. The penalty ordered in this case should take that increase into account.
26. In the matter of Queensland Building Services Authority v Marveldale Pty Ltd [2006] CCT QD001-06, the Tribunal accepted that proper grounds existed for the taking of disciplinary action against the company on the basis of it breaching its AATO by an amount of $4,307,838 or 474%. The Tribunal ordered the company to pay a penalty of $4000. The Authority submits the circumstances of the present case justify a similar or higher penalty. It is particularly noteworthy the breach in the present case is far higher in percentage terms than that in the Marveldale matter.
27. In the matter of Queensland Building Services Authority v Built Qld Pty Ltd [2005] CCT L018-05, the tribunal accepted that proper grounds existed for the taking of disciplinary action against the company on the basis of it breaching its AATO by $3,537,258 or approximately 1,000%. The Tribunal ordered a penalty of $6,000. The company in that case was licenses for only 1 year, and was unable to provide a satisfactory explanation for the breach.
28. In the matter of Queensland Building Services Authority v Jordan Constructions Co Pty Ltd [2007] CCT QD027-06, the tribunal accepted that proper grounds existed for the taking of disciplinary action against the company on the basis of it breaching its AATO by $3,542,992 or 1,515.22%. The tribunal ordered a penalty of $3,500. The Authority submits the circumstances of the present case justify a similar penalty.
31. In the circumstances, taking into account the significance of the breach in percentage terms, the need to deter the Respondent and other licensees from breaching their financial requirements, the fact the Respondent knew or ought to have known that it was in breach, and the recent rise in penalty unit value, the Authority submits the Tribunal should order a penalty in the range of $6,000 to $8,000.
Respondent’s submissions
In accordance with the Order of the Commercial and Consumer Tribunal (the “Tribunal”) dated 21 September 2009, Mine-Con Plumbing Pty Ltd provides the following submissions on penalty.
The Respondent accepted the charges in these proceedings at its earliest opportunity and consented to having the matter of penalty determined on the papers, as opposed to a hearing, to minimise, as far as possible, the costs to be incurred by both parties and the resources of the Tribunal.
The Authority has submitted that the Respondent has not provided a satisfactory explanation for the occurrence of the breach. In this regard, the Respondent has not previously been requested to provide such detail and believes that the proper approach, once the charges have been accepted, is to provide such detail in its submission on penalty as detailed herein.
In this regard, the Respondent says that there had been a misunderstanding on its behalf as to the requirements for the completion of the licensing documentation and that the misunderstanding occurred as a result of its representatives’ discussions with its previous accountant, Acton Campbell and Co. The Respondent did not deliberately breach its statutory obligations and, it is submitted, the breach should not be viewed as such.
The Respondent agrees with the Authority’s contention that it is of primary importance that licensees both understand and abide by their statutory obligations, including their duty to inform the Authority of changes in financial standing. It is for this reason that the Respondent sought legal advice immediately it became aware of these proceedings, both in terms of its obligations to the Authority, inter alia, and legal representation in the current proceedings.
The Respondent submits that the Tribunal can be confident that it will not breach its Allowable Annual Turnover (“AATO”) again for the following reasons:
(a)The Respondent now has a better understanding of the relevant legislation and the financial requirements with respect to its licence;
(b)The Respondent has retained the services of a new accountant, Mr Brad Groves, who has been specifically instructed to monitor the Respondent’s financial figures throughout the year and to immediately notify the Respondent in the event that it appears that the AATO is in threat of being exceeded;
(c)The Respondent has, for the current licence year 2009-2010, obtained an increase in its AATO to $8,594,656.00 on the basis of the Independent Review Report provided to the Authority by the Respondent’s previous accountant, Mr Jason Campbell (exhibited to the affidavit of Michelle Ann Lockton sworn 31 July 2009 and marked “MAL-5”) and the Respondent’s Net Tangible Assets (“NTA”) being provided therein as $357,408.00. The Respondent’s NTA have thereby allowed the Respondent to secure a licence with an AATO of some $6,160,941.00 more than its Actual Annual Turnover for 2008;
(d)The Respondent assures the Tribunal that the same breach will not occur again.
The Authority has submitted that the most significant aspect of the Respondent’s breach is the fact that the Respondent exceeded its AATO by 711.2%. The Respondent does not disagree with the percentage calculation, nor that the percentage itself is significant. However, the Respondent says that it similarly exceeded its NTA by some 1,885.6%, based on the NTA of $18,000.00 required for the $300,000.00 AATO and the Respondent’s actual NTA of $357,408.00.
Accordingly, although the Respondent did not notify the Authority and have a variation to its turnover approved, as required by section 35(3)(b) of the Queensland Building Services Authority Act 1991 (the “Act”), it has nevertheless satisfied section 35(3)(a) of the Act given that the Respondent’s financial circumstances, at all times, satisfied the relevant financial requirements stated in the board’s policies, as is evidenced by the Independent Review Report provided to the Authority by the Respondent’s previous accountant (exhibit “MAL-5”) which was prepared on the basis of the Respondent’s actual financial figures for 2008.
The Respondent agrees with the Authority’s submission that the primary purpose of the ‘Financial Requirements for Licensing’ Policy is to avoid situations where licensees trade beyond their means and are unable to honour their liabilities to consumers, contractors and suppliers. Importantly however, and based on the Respondent’s financial figures referred to herein, although the Respondent traded in breach of its license conditions (by not notifying the Authority and having a variation in its turnover approved), it did not pose a danger to those the Authority and the Act seek to protect, as suggested by the Authority, by virtue of its actual NTA being far in excess of the required NTA to substantiate the Respondent’s Actual Annual Turnover.
The Authority submits that a deterrent effect is unlikely to occur should the penalty ordered be insignificantly proportionate to the benefit gained by the Respondent. With respect, the Respondent has not gained a benefit by reason of the breach. The Respondent had in excess of the required NTA to substantiate its Actual Annual Turnover. There is no reason, other than the misunderstanding as to the requirements, as to why the Respondent did not obtain the correct licence. This misunderstanding has now been rectified and the Respondent has now obtained the correct licence from the Authority reflective of its NTA.
The Respondent has not been involved in previous proceedings of this nature and otherwise has a clear record with the Authority.
Comparative Cases
In respect of the cases referred to by the Authority, the Respondent submits that:-
(a)In the matter of Queensland Building Services Authority v. Marveldale Pty Ltd [2006] CCT QD001-06, the amount of the breach of the AATO was more than double the amount of the Respondent’s breach, despite the percentage figures calculated.
(b)In the matter of Queensland Building Service Authority v. Built Qld Pty Ltd [2005] CCT L018-05, the value of the breach is 1.65 times that of the Respondent’s and the subsequent percentage is 1.4 times that of the Respondent’s. After taking all matters into account, it is submitted that the penalty ordered in that case would be excessive for present purposes.
(c)In the matter of Queensland Building Service Authority v. Jordan Constructions Co Pty Ltd [2007] CCT QD027-06, the Tribunal ordered a penalty of $3,500.00. The Authority has made submissions that the circumstances of the present case justifies a similar penalty. In this regard, the Respondent submits that $3,500.00 should be considered in the upper range for the appropriate penalty given that the value of the breach is 1.66 times that of the Respondent’s and that the relevant percentage is 2.13 times that of the Respondent’s.
(d)In the matter of Queensland Building Service Authority v. FDC Construction and Fitout Pty Ltd [2009] QCCTB 16, the Tribunal accepted that proper grounds existed for the taking of disciplinary action against the company on the basis of it breaching its AATO by $129,000,000.00 or approximately 256%. The Tribunal ordered a penalty of $8,000.00 plus $1,000.00 costs. It is submitted that, given that the company in that case exceeded its AATO by such a substantial amount (and thereby posed a substantial risk to consumers, contractors and suppliers), despite the percentage which could be deceiving when involving figures such as these, the figure of $3,500.00 as previously submitted, is more appropriate in the present case.
In the circumstances, taking into account the amount of the breach, the significant net tangible assets of the Respondent and the fact that the Tribunal, the Respondent submits, can be confident that it will not again breach its licence conditions, the Respondent submits that the Tribunal should order a penalty of $2,500.00 to $3,500.00.
Penalty parameters
The applicable penalty range in this instance is an amount equivalent to 1000 penalty units: section 107(2)(b) Commercial and Consumer Tribunal Act 2003 (Qld). 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 $100,000.00 in this case.
Section 266 of the Queensland Civil and Administrative Tribunal Act 2009 provides that:
Particular penalties payable to particular entities:
The repealed Commercial and Consumer Tribunal Act 2003, section 148, as in force before the commencement, continues to have effect in relation to penalties to which the section applied that are recovered after the commencement as if that Act had not been repealed.
Decision
The Applicant submits that the appropriate penalty is in the range of $6,000.00 to $8,000.00, having regard to the significance of the breach in percentage terms (711.2%). The Respondent submits that the appropriate range is $2,500.00 to $3,500.00.
In Queensland Building Services Authority v FDC Construction & Fitout Pty Ltd [2009] QCCTB 16 (“FDC”), the respondent breached its AATO by $129,149,827.00, amounting to approximately 256%. In FDC, then Member Lohrisch considered that a percentage figure was not useful for comparative purposes, as the quantum of the monetary breach was so great. The respondent in FDC was ordered to pay an $8,000.00 penalty plus $1,000.00 legal costs to the applicant.
Conversely, the Tribunal should consider that in circumstances where the monetary amount of the breach is comparatively low, that at some point, a breach of a high percentage magnitude renders comparison with lower percentage figures unhelpful.
The Respondent submits that there was, on its part, a “misunderstanding” about its licensing obligations that occurred as a result of discussions with its previous accountant. The Respondent further submits that the breach was not deliberate.
The Respondent also takes issue with the Applicant’s submission that it has not provided, prior to making submissions as to the appropriate penalty, a satisfactory explanation for the occurrence of the breach. I agree with the Respondent that it was not obliged, having accepted the charges in question, to provide further explanation, save as to penalty.
However, the Respondent’s resulting submissions as to penalty are lacking in explanation and detail on this issue. There is no detail or explanation as to what the misunderstanding was, or how it occurred. It is impossible for me to assess whether the accountant provided information to the Respondent that was factually incorrect, and this led to the error, or whether some other scenario occurred. Therefore, I am left with the Respondent’s bare assertion that there was a misunderstanding.
In Queensland Building Services Authority v Built Qld Pty Ltd [2005] QCCTB 152 (“Built Qld”), then Member Lohrisch considered a similar explanation for the respondent’s breach therein, finding that “no real explanation (let alone a satisfactory explanation)” had been provided. I have reached the same conclusion about the Respondent’s explanation in this case.
The Respondent submits that a breach is not likely to again occur, pointing out that it now has a better understanding of its licensing requirements, and has obtained a new accountant. While I accept that these actions are positive steps on the part of the Respondent in ensuring that a breach does not occur in future, in the absence of any detail about what the “misunderstanding” was, they are not particularly forceful.
The Respondent submits that a “deterrent effect is unlikely to occur should the penalty ordered be insignificantly proportionate to the benefit gained by the Respondent”. The Respondent supports this submission by noting that it has not gained a benefit by reason of the breach, and further that it had in excess of the required Net Tangible Assets (“NTA”) to substantiate its Actual Annual Turnover. I disagree with the Respondent on this issue.
In my view, it cannot be said that the Respondent has not gained a benefit. Whilst it may not have profited financially, it has (though inadvertently) avoided compliance with the paperwork components of the Queensland Building Services Authority licensing requirements. All businesses, small or large, are required to divert time away from profit making activity in order to comply with regulatory regimes. Those businesses that do not comply are able to devote more time to the running of their businesses, and do not need to pay staff or professionals to complete the tasks that are required of them. Thus, the net benefit to the Respondent is that it had the benefit of the time that it should have devoted to maintaining proper records and business reporting systems, plus the benefit of any costs savings associated with its inadvertent failure to put such systems in place.
The deterrent effect of penalties in cases such as this is twofold: (1) to discourage the penalised company from again engaging in such conduct; and (2) to send a message to the broader community of licensees to whom the Queensland Building Services Authority Act 1991 (Qld) applies.
The purpose of the applicable legislative provisions is to protect the public from the risks that exist when licensees engage in trading beyond their NTA. I accept that the Respondent did possess assets that were in excess of the amount it would have needed to properly make application for an increase to its AATO. Further, I note that the Respondent has obtained an increase in its AATO to eight million, five hundred and ninety-four thousand, six hundred and fifty-six dollars ($8,594,656.00) for the current 2009-10 license year.
These factors are relevant to the Respondent only, and although they indicate that the public may not have been at high risk of loss due to its conduct, they do not address the need to ensure that other licensees do not place the public at actual risk through non-compliance.
Further, although the significant net tangible assets of the Respondent were a factor in its obtaining an increase in AATO, their existence, in my view, does not provide grounds for non-compliance with the regulatory framework in the first instance.
The Respondent is a medium-sized business, and has possessed a Queensland Building Services Authority License since 20th January 2005. They were not a new company, although they might be considered a young company, at the time of the offence. Applying the criteria suggested by then Member Lohrisch in Built Qld, it is reasonable to expect that a three-to-four year period of operation for a business of this size would be sufficient to enable understanding of the Respondent’s license obligations.
I note that the Respondent accepted the charges at an early juncture, and further that the Respondent has no history of previous offences of this nature.
In Built Qld, which is analogous in terms of the explanation offered for the breach by the respondent, a penalty of $6,000.00 was ordered for an AATO breach of $3,537,258.00, a percentage excess of greater than 1,000%.
In Queensland Building Services Authority v Sunland Constructions Pty Ltd [2004] QCCTB 49 (“Sunland”), the respondent had also consented to a finding that it breached its AATO by $28,000,000.00 or 689%. A penalty of $7,000.00 was ordered. Although involving a higher dollar excess, Sunland is closely analogous in terms of percentage excess.
In Queensland Building Services Authority v Marveldale Pty Ltd [2006] QCCTB 67 (“Marveldale”), a penalty of $4,000.00 was ordered for a breach of $4,307,838.00 or 474%.
In Queensland Building Services Authority v Jordan Constructions Co Pty Ltd [2007] QCCTB 131 (“Jordan”), a penalty of $3,500.00 was ordered for a breach of $3,542,992.00, or 1,515.22%. In Jordan, the evidence established that the respondent obtained a license for the purposes of constructing one development only, and in breaching this licence, acted with “contumelious disregard” of its licence conditions.
While I do not consider the Respondent to have acted in a contumelious manner, it was also the case in Jordan that the Tribunal did not need to consider the issues as to whether a breach might again occur, as the respondent in Jordan had relinquished its licence. The Applicant submits that circumstances in the present case justify a similar penalty to that in Jordan.
In order to paint a snapshot of the penalties ordered in the cases discussed above, relative to the financial turnover of the respondent, and size of the breach, I have produced a comparative table:
| Case Name | Dollar Excess AATO | Percentage Excess AATO | Penalty |
| FDC | $129,149,827.00 | 256% | $8,000.00 plus $1,000.00 costs |
| Built Qld | $3,537,258.00 | Greater than 1000% | $6,000.00 |
| Sunland | $28,000,000.00 | 689% | $7,000.00 |
| Marveldale | $4,307,838.00 | 474% | $4,000.00 |
| Jordan | $3,542,992.00 | 1,515.22% | $3,500.00 |
| Respondent | $2,133,715.00 | 711.2% | $3,500.00 |
Considering the size and standing of the Respondent, the minimal detail proffered to explain the occurrence of the breach, the steps that have been taken by the Respondent to prevent a subsequent breach, the utility of a penalty as a deterrent, the parties’ submissions and matters canvassed above, I consider an appropriate penalty to be Three-Thousand Five-Hundred Dollars ($3,500.00). I order that this amount be paid by the Respondent to the Authority by, 4:00 pm on 9th January 2010.
The Applicant has sought its costs in this matter. In consideration of the Respondent’s early acceptance of the charges, I decline to make an order as to costs.
Orders
Proper grounds exist for taking disciplinary action against the Respondent in that it contravened sections 89(a) and / or 89(k) of the Queensland Building Services Authority Act 1991 in that, during its licence year 2008/2009, it exceeded its Allowable Annual Turnover by TWO-MILLION, ONE-HUNDRED AND THIRTY-THREE THOUSAND, SEVEN-HUNDRED AND FIFTEEN DOLLARS ($2,133,715.00) or 711.2% without first notifying the Authority or obtaining the Authority’s approval.
The Respondent to pay to the Queensland Building Services Authority by way of penalty the sum of Three-Thousand Five-Hundred Dollars ($3,500.00) by 4:00 pm on 9th January 2010.
The Applicant and Respondent to bear their own costs in this matter.
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