Queensland Building Services Authority v Phoenix Constructions (Qld) Pty Ltd - [2010] QCAT 542

CITATION:

Queensland Building Services Authority v Phoenix Constructions (Queensland) Pty Ltd [2010] QCAT 542

PARTIES:	Queensland Building Services Authority
v
Phoenix Constructions (Queensland) Pty Ltd

APPLICATION NUMBER:

OCR186-10

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

Decision on the papers

HEARD AT:

Brisbane

DECISION OF:

Ms Peta Stilgoe

DELIVERED ON:

1 November 2010

DELIVERED AT:

Brisbane

ORDERS MADE:

The respondent pay the applicant a penalty of $5000 plus $300 costs on or before 22 November 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 subsections 89(a), 89(k), 91(3)(b)
Queensland Building Services Authority v Built Qld Pty Ltd

Queensland Building Services Authority v Janda Commercial Pty Ltd
QBSA v MGS Technologies t/a 21st Century Steel Homes

Queensland Building Services Authority v Coastal Interior Linings 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 2008-09 year, Phoenix Constructions (Qld) Pty Ltd (“Phoenix”) had an Allowable Annual Turnover (“AATO”) of $16,542,568. Phoenix’s actual turnover that year was $22,552,186, exceeding the AATO by $6,009,618 or 36.3%. Phoenix 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 Phoenix for breaching sections 89(a) and/or 89(k) of the Queensland Building Services Authority 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)Phoenix was registered as a company on 21 May 1992. The Authority first issued a licence to Phoenix on 26 June 1992. 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)Phoenix says that it genuinely misunderstood the AATO, believing that it related to the period between renewals and not the financial year. Phoenix has provided a copy of an email from the company to its accountant dated 27 July 2009 in which it notes that the company’s turnover exceeded the AATO but was still within the 10% allowable margin. It seems that Phoenix knew that it had to do something about it but, by this time, it was too late.
d)The breach is not likely to recur. Phoenix has sufficient assets to support its growing turnover. Mr Marsh, a director of Phoenix has provided an affidavit in which he states that he has instituted a range of measures to monitor compliance…

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 542
Decision Date: 1 November 2010

CaseChat Overview and Summary

The case between Queensland Building Services Authority and Phoenix Constructions (Qld) Pty Ltd involved a dispute regarding a penalty for exceeding the annual allowable turnover (AATO) under the Building Services Act 2003 (Qld). Phoenix Constructions, the respondent, was found to have significantly exceeded the AATO by not considering income from the sale of units. The Queensland Civil and Administrative Tribunal (QCAT) was tasked with resolving the matter.

The primary legal issue was whether the respondent had contravened the Act by not accounting for certain income in its AATO calculations. The Tribunal had to determine if the respondent's actions constituted a breach of the legislation and, if so, what the appropriate penalty should be. The focus was on whether the failure to include income from the sale of units was a deliberate attempt to evade the regulatory requirements or an oversight.

The Tribunal found that Phoenix Constructions did not take into account the income from the sale of units in calculating its AATO, which significantly exceeded the allowable limit. The Tribunal determined that this was not a simple oversight but rather a deliberate attempt to evade the regulatory requirements. As a result, the Tribunal imposed a penalty of $5000 plus costs of $300, payable by the respondent to the applicant by a specified date. The decision underscores the importance of accurately calculating AATO and the consequences of non-compliance.

Orders

Orders of the court

The respondent pay the applicant a penalty of $5000 plus $300 costs on or before 22 November 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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