Queensland Building Services Authority v Nortask Pty Ltd
[2011] QCAT 164
•12 April 2011
| CITATION: | Queensland Building Services Authority v Nortask Pty Ltd [2011] QCAT 164 |
| PARTIES: | Queensland Building Services Authority |
| v | |
| Nortask Pty Ltd |
| APPLICATION NUMBER: | OCR210-10 QD002-07 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Ms Sandra G Deane, Member |
| DELIVERED ON: | 12 April 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Nortask Pty Ltd will pay the Authority the sum of six thousand dollars ($6,000.00) by way of penalty on or before 4:00pm on 12 June 2011. 2. Nortask Pty Ltd will pay the Authority the sum of $1,500 by way of costs on or before 4:00pm on 12 June 2011. |
| CATCHWORDS: | Disciplinary proceedings – unlicensed contractor – application for costs allowed Queensland Building Services Authority Act 1991, s 90(1)(a) Queensland Building Services Authority v Ventura Quality Painters Pty Ltd D179-96 [1996] QBT 136 Queensland Building Services Authority v Abu-Dabat [2006] QCCTB 32 |
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
These are disciplinary proceedings brought by the Queensland Building Services Authority (“the Authority”) against the Respondent, Nortask Pty Ltd (“Nortask”).
The applications consist of charges involving breaches of the Queensland Building Services Authority Act 1991 (“the QBSA Act”).
Pursuant to directions made at Direction Hearings on 16 December 2010 and 7 March 2011 these applications are to be determined on the papers together in relation to the issue of penalty and costs as it was directed that proper grounds exist for taking disciplinary action against Nortask pursuant to section 90(1)(a) of the QBSA Act.
The Tribunal has received submissions on the penalty and costs issue from the Authority on 15 December 2010 and Nortask on 3 February 2011.
Background
On or about 30 March 2004 Nortask carried out certain work at 15 Mona Street, Mount Isa.
The Authority issued to Nortask Infringement Notice no 4391 dated 24 June 2006 in relation to an offence under section 42(9) of the QBSA Act, namely unlicensed contracting in respect of that work.
The penalty value of the Notice was $600.
Nortask disputed the offence by letter to the Authority dated 21 July 2006.
The Authority filed an application with the (former) Commercial and Consumer Tribunal (CCT) for disciplinary proceedings for breach of the QBSA Act on 4 January 2007 (QD002-07).
[10] On 12 March 2007 QD002-07 was adjourned to the registry pending the outcome of a claim by Nortask and its director, Mr Speziali in different CCT proceedings, BD576-05, which involved a claim for payment of moneys which arose out of the same facts as QD002-07. The BD576-05 proceedings have been finalised.
[11] On or about 13 November 2006 Nortask undertook the construction of a swimming pool, amenities building and associated works at 57 Jane Street, Dirranbandi. Nortask did not hold an appropriate licence under the QBSA Act.
[12] The Authority filed an application with the Queensland Civil and Administrative Tribunal (“Tribunal”) for disciplinary proceedings for breach of section 90(1)(a) of the Queensland Building Services Authority Act 1991 (“the QBSA Act”) on 24 August 2010 (OCR210-10).
[13] Under section 256 of the Queensland Civil and Administrative TribunalAct 2009 (QCAT Act), a pending proceeding (being a proceeding commenced in one of the tribunals replaced by the Tribunal but not heard by the replaced tribunal prior to 1 December 2009) is taken to be a proceeding before the Tribunal.
Authority’s Submissions on Penalty
[14] The Authority referred the Tribunal to previous decisions in relation to factors to be considered in determining an appropriate penalty. The Tribunal may:
a) take into account whether the unlicensed work was wilful or unintentional in determining penalty[1];
[1]Queensland Building Services Authority v Ventura Quality Painters Pty Ltd D179-96 [1996] QBT 136.
b) have regard to:
i) the influence the quantum of the penalty might serve as a deterrent in the future;
ii) the degree to which the penalty may deter others;
iii) an assessment of the gravity of the conduct.[2]
[2]Queensland Building Services Authority v Elgin Slack Property Company Pty Ltd [2005] QCCTB 20.
c) have regard to:
i) protection of consumers;
ii) preventing repetition of the offence and deterring others;
iii) the number of offences in question;
iv) the monetary value involved and profit gained;
v) the motivation behind the offences;
vi) any reparation and remorse evidenced.[3]
d) take into account:
i) the total value of the unlicensed work completed;
ii) the amount of profit resulting from the work;
iii) the degree to which the penalty may prevent a repetition of the offence and deter others;
iv) an assessment of the gravity of the conduct measured against the consumer protection objects;
v) any mitigating factors;
vi) any licence fees forgone.[4]
[3] Queensland Building Services Authority v Taylor [2005] QCCTB 70.
[4] Queensland Building Services Authority v Abu-Dabat [2006] QCCTB 32.
[15] The Authority submits that:
a)the primary purpose of disciplinary proceedings is to protect the public and thus any penalty should be in the nature of deterrence rather than punishment.
b)an appropriate penalty amount would act as a deterrent to discourage Nortask and others from breaches of their obligations to be appropriately licensed.
c)Nortask caused financial detriment to contractors who are appropriately licensed.
d)Nortask exhibited a disregard for consumer protection and safety by carrying out unlicensed building work and points to the fact that there is no recourse to the statutory insurance scheme for defective work where the contractor was not licensed.
e)Such contraventions tend to adversely impact on the integrity of an occupational regulatory scheme and erode public confidence.
f)Nortask saved a considerable amount of money in licence fees over the time which it performed work whilst unlicensed.
g)The swimming pool complex work had a contract price in excess of $1,000,000.
h)Nortask applied for and obtained a licence on 31 July 2007 and the Authority’s records do not otherwise reveal any breaches of the QBSA Act.
Nortask entered a guilty plea at a relatively early stage of OCR210-10.
[16] The Authority referred the Tribunal to the following previously decided unlicensed contracting penalties:
Case Monetary Value/Circumstances Penalty Queensland Building Services Authority v Brock[5] Contract value $6,073.55 $2,000
QBSA v Newby Enterprises Pty Ltd[6] Profit made $10,000 $15,000 Queensland Building Services Authority v Abatech Pty Ltd[7] No profit made $3,000 QBSA v AAA Aussie Emergency Glass Pty Ltd (QD009-09) One charge - Quotation incorrectly issued on unlicensed entity letterhead $2,000 fine
$1,500 costsQBSA v Gregson (OCR047-09) One charge –
Quote for $16,695$2,500 fine
$1,000 costsQBSA v Vanwyk (QD014-09) Two charges –
Work value $8,400$4,000 fine
$350 costsQBSA v Walker (QD006-08) One charge
Work value $4,000$1,750 fine
$500 costsQBSA v Holmes (QD017-08) One charge
Work value approx $3,800$1,500 fine
$800 costsQBSA v Core (QD018-08) One charge of unlicensed contracting and a second charge under s90(1)(e) QBSA Act
Work value approx $2,400$5,000 fine
$800 costsQBSA v Sung Dae Kim (QD012-08) One charge
Work value approx $6,000$2,000 fine
$800 costsQBSA v Ryan (QD017-07) One charge of unlicensed contracting and a second charge under s90(1)(e) QBSA Act
Work value $2,500$1,300 fine (for both offences)
$350 costs[5] [2008] CCT QD006-07.
[6] [2006] QCCTB 166.
[7] [2006] QCCTB 153.
[17] The Authority submits that the Tribunal should order a penalty against Nortask in the range of six thousand dollars to ten thousand dollars ($6,000.00 to $10,000.00).
Nortask’s Submissions on Penalty
[18] Nortask submits that:
a)the tribunal work undertaken in relation to the first charge was very minor in nature and it received no payment whatsoever for that work. It incurred substantial costs in the BD576-05 proceedings.
b)whilst it did not hold a licence at relevant times its director and now Nominee did hold an appropriate licence.
c)the Tribunal should ignore the Authority’s submission that other contractors suffered financial detriment as the Authority provided no evidence.
d)it did not disregard consumer protection and safety and points to its director holding a licence.
e)it and its director has unblemished records over a combined significant period.
f)it first became aware of the infringement about 7 January 2007 when the Authority commenced QD002-07 and it took immediate steps to obtain an appropriate licence.
g)it did not blatantly disregard the regulatory requirements but rather misunderstood them.
h)it operates in the Dalby region which has been adversely affected by floods in December 2010 and January 2011 resulting in substantial loss of income and any penalty will cause financial strain at this time.
it has co-operated with the Authority and entered a plea of guilty at an early stage.
[19] Nortask referred the Tribunal to the following previously decided unlicensed contracting penalties:
Case Monetary Value/Circumstances Penalty Queensland Building Services Authority v Taylor[8] 10 charges $800
$900
$1,200
$1,600
$1,000
$3,250
$800
$2,500
$500
$2,000Queensland Building Services Authority v Abu-Dabat[9] Quote for $17,000
Paid $13,000
Authority submitted net profit margin may have been $1,300$900 Queensland Building Services Authority v C&C Pacific Pty Ltd[10] Value of work $395,000 carried out while suspended during period 24 May 2004 to 9 September 2004 $2,000 [8] [2005] QCCTB 70.
[9] [2006] QCCTB 32.
[10] [2005] QCCTB 49.
[20] Nortask submits that the Tribunal should order a penalty in the range of $1,500 to $3,000 for each offence and be allowed 60 days to pay.
Submissions on Costs
[21] The Authority also seeks an order for costs pursuant to section 102 of the QCAT Act in relation to the proceedings in the amount of fifteen hundred dollars ($1,500.00) as set out in the Justices Regulation 2004 and seeks an order that costs be paid within 60 days.
[22] Nortask adopts the Authority’s submissions as to costs.
Discussion and Decision
[23] The Authority is responsible for regulation of the building industry in a way which gives the public confidence. It is important that participants understand that compliance with statutory requirements is to be taken seriously.
[24] I note Nortask’s and its director’s otherwise good record and that Nortask took steps and became appropriately licensed in 2007. I also note that it first received an Infringement notice in June 2006 which ought to have alerted it and its director to their misunderstanding of the licensing requirements.
[25] The Authority submitted that other contractors have suffered financial detriment. I accept that other licensed contractors did not obtain contracts for the performance of the work the subject of the charges because Nortask obtained them and that the other contractors may have thereby suffered financial detriment.
[26] I accept that Nortask did not make any profit in respect of the work the subject of the first charge however it is troubling that Nortask did not make any submissions in relation to the profit it earned arising out of the swimming pool complex contract. That was a significant contract, the contract price being in excess of $1,000,000, which is significantly more than the value of work in the other decisions on penalty to which the Tribunal was referred.
Orders
[27] Nortask Pty Ltd will pay the Authority the sum of six thousand dollars ($6,000.00) by way of penalty on or before 4:00pm on 12 June 2011.
[28] Nortask Pty Ltd will pay the Authority the sum of $1,500 by way of costs on or before 4:00pm on 12 June 2011.
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