Queensland Building Services Authority v Rica
[2011] QCAT 185
•12 May 2011
| CITATION: | Queensland Building Services Authority v Rica [2011] QCAT 185 |
| PARTIES: | Queensland Building Services Authority |
| v | |
| John Rica |
| APPLICATION NUMBER: | OCR216-10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | N Jarro, Member |
| DELIVERED ON: | 12 May 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The respondent is ordered to pay to the Queensland Building Services Authority the sum of $38,000 within 90 days. |
| CATCHWORDS: | Disciplinary proceedings – licensed builder – failure to rectify directives to rectify – penalty – costs Queensland Building Services Authority Act 1991, ss 72(10), 88, 90, 91 |
APPEARANCES and REPRESENTATION (if any):
The hearing took place on the papers in the absence of the parties.
REASONS FOR DECISION
In this matter, the Queensland Building Services Authority (“the QBSA”) applies to the Tribunal for disciplinary proceedings against Mr John Rica (“the respondent”). The application relates to the respondent’s failure to comply with 19 directions issued by the QBSA for the rectification of building work in contravention of s 72(10) of the Queensland Building Services Authority Act 1991 (“the QBSA Act”). The respondent does not dispute the contraventions and the matter proceeded by way of hearing on the papers as to the appropriate penalty.
In reaching its decision, the Tribunal has had regard to the following documents:
(a)Application for a disciplinary proceeding filed 30 August 2010;
(b)Affidavit of Michael Dennis Hulme sworn 18 August 2010, filed on behalf of the QBSA;
(c)Respondent’s letter dated 23 September 2010.
Jurisdiction of the Tribunal
The Tribunal has original jurisdiction pursuant to s 10(1)(b) of the Queensland Civil & Administrative Tribunal Act 2009 (“the QCAT Act”), having been conferred under the enabling Act, being the QBSA Act, to determine this matter. Section 88 of the QBSA Act provides as follows:
The authority may apply, as provided under the QCAT Act, to the tribunal to conduct a proceeding to decide whether proper grounds exist for taking disciplinary action against a person under this division.
Section 90 of the QBSA Act relevantly provides as follows:
(1)For section 88, proper grounds exist for taking disciplinary action against a person who is not a licensee if the person—
...
(e) fails to comply with a direction of the authority to rectify or complete tribunal work.
In addition, s 91 of the QBSA Act permits the Tribunal to make orders for disciplinary actions. That section relevantly provides as follows:
(1) If the tribunal decides that appropriate grounds exist for taking disciplinary action against a person, the tribunal may make 1 or more of the orders mentioned in subsections (3) to (5).
...
(3) The tribunal may make an order imposing a penalty on the person of not more than —
(a) for an individual—an amount equivalent to 200 penalty units…
Findings
In order to determine the appropriate penalty, it is necessary to examine the 19 offences in detail. It is to be noted the respondent was issued with a QBSA licence from 21 July 1992 until he requested that it be cancelled on 25 January 2008. He no longer holds a licence.
Offence 1
On or about 18 May 2007, the QBSA received a complaint from David and Susan Deakin in relation to allegedly defective building work undertaken at their property. The Deakins complained of water damage from a garden roof above their property.
Mr Hulme, building inspector on behalf of the QBSA, inspected the property and issued a direction to rectify, requesting the respondent rectify one item of defective building work within a 28 day period. No rectification work had been carried out and the QBSA reinspected the work and determined that the respondent failed to undertake any rectification work in compliance with the direction to rectify.
Offence 2
On or about 12 June 2007, the QBSA received a complaint from Lisa Sawyer in relation to allegedly defective building work undertaken at her property, that resulted in extensive water damage and water ingress.
On 3 July 2007, Mr Hulme attended the property for the purposes of undertaking an inspection and issued the respondent with a request to perform rectification work in relation to various locations of water ingress within a period of 21 days. The respondent sought an extension to comply with the QBSA’s informal request and was allowed a one week extension to rectify all defective work.
The rectification works were not performed during the relevant rectification period, notwithstanding the respondent did some work, but others remained outstanding. An inspection took place on 4 September 2007 by Mr Hulme who noted that the defective items in the kitchen and patio areas, as well as the water ingress and painting, had not been rectified by the respondent. As such, the QBSA determined that the respondent failed to comply with his obligations under the direction to rectify.
The QBSA conceded that the respondent did undertake further rectification work sometime between 13 September 2007 and 21 September 2007, however that work was undertaken after the stated period.
Offence 3
On or about 18 July 2007, the QBSA received a further complaint from Mr and Mrs Deakin in relation to allegedly defective building work undertaken by the respondent. The QBSA gave notice of an inspection to the respondent who advised that he would not be in attendance at the time of the inspection nor would he be carrying out any rectification works at the property. The nature of the defects complained of related to reoccurring water ingress in an area where the respondent had previously undertaken some unsatisfactory rectification work. Following a reinspection, the QBSA determined that the respondent had failed to undertake any rectification work in compliance with the direction to rectify.
Offence 4
On or about 28 October 2007, a further complaint was received from the Deakins in relation to allegedly defective building work undertaken by the respondent. The nature of the allegedly defective work included several areas of water ingress in areas where gaps existed between the capping tile of the roof and the rendered blockwork. An extension of time was granted to the respondent to rectify the work, but he failed to do so and the QBSA issued a direction to rectify. During the reinspection, whilst the respondent undertook some rectification work, a complete rectification of the building work was deemed unsatisfactory by the QBSA whom determined that the respondent failed to rectify the defective building work in accordance with the direction to rectify.
Offence 5
On or about 1 November 2007, the QBSA received a complaint from the Santorini Body Corporate in relation to allegedly defective building work undertaken by the respondent at a block of apartments. The allegedly defective building work related to severe rusting of all fixings on the entire building. Mr Hulme conducted an inspection and noted that the respondent had installed inadequate fixings throughout the building. He caused a letter to be sent to the respondent informally requesting that he rectify two items of defective building work within a 21 day period. The respondent advised Mr Hulme that he did not intend to rectify the work as he believed he had built the property as per the contract. The respondent issued a direction to rectify seven items of defective building work within a period of 28 days.
At the reinspection, it was determined by the QBSA that the respondent failed to rectify the defective building work in accordance with the direction to rectify.
Offence 6
On or about 17 December 2007, the QBSA received a complaint from John and May Sisson in relation to allegedly defective building work undertaken by the respondent, namely inadequate or defective balustrades. The QBSA issued a direction to the respondent to rectify. The Sissons confirmed that the respondent had failed to attend their property for the purposes of undertaking rectification work, and as such, after a reinspection, the QBSA determined that the respondent failed to perform any rectification work to the balustrades and the balcony.
Offence 7
On or about 20 December 2007, the QBSA received a further complaint from the Santorini Body Corporate in relation to allegedly defective building work undertaken by the respondent, namely inadequate or defective balustrades. The QBSA issued a direction to the respondent. At the reinspection, the QBSA determined that the respondent failed to undertake any rectification works in relation to the direction to rectify.
Offence 8
On or about 8 January 2008, the QBSA received a complaint from Michael and Valerie Aldridge in relation to allegedly defective building work undertaken by the respondent, namely inadequate or defective balustrades. Following an inspection, the QBSA issued a direction to rectify because its building inspector, Mr Hulme, noted excessive movement to the handrail on the balustrades and determined that the respondent was responsible for rectifying the work.
The Aldridges contacted the QBSA and advised there had been no contact from or rectification work undertaken by the respondent and following a reinspection, the QBSA determined that the respondent had failed to undertake any rectification work of the defective items contained in the direction to rectify.
Offences 9 and 10
On or about 15 January 2008, the QBSA received a further complaint from Lisa Sawyer in relation to allegedly defective building work undertaken by the respondent at her property. Mr Hulme attended the property for the purposes of undertaking an inspection, and during the inspection noted further water ingress had occurred at Ms Sawyer’s property due to defective building work undertaken by the respondent. At this time, the respondent’s licence had been cancelled at his request. Nevertheless, as it was empowered to do, the QBSA issued a direction to rectify directing the respondent to organise for a licensed contractor to undertake rectification of three items of defective building work within a 28 day period.
During that period, Lisa Sawyer contacted the QBSA advising that further areas of water ingress had been identified and on the same day Mr Hulme attended for the purposes of undertaking a reinspection. He noted that further areas of water ingress occurred to the property due to recent rainfall.
On 19 February 2008, the QBSA issued a direction to rectify directing the respondent to organise a licensed contractor to undertake rectification of seven items of defective building work within a period of 28 days.
Lisa Sawyer informed the QBSA that the respondent failed to make contact or attend her property for the purposes of undertaking rectification work. After a reinspection, the QBSA noted that the respondent failed to undertake any rectification work or organise a licensed contractor and determined that the respondent failed to rectify the defective building work in accordance with the earlier direction to rectify.
Offence 11
On or about 5 February 2008, the QBSA received a further complaint from the Deakins in relation to allegedly defective building work undertaken by the respondent, namely a shower leaking into an adjoining bedroom wardrobe and severe water damage to the side balcony. Mr Hulme inspected the allegedly defective building work and noted several items of defective building work which required rectification. As such, the QBSA issued the respondent with a direction to rectify, directing him to organise a licensed contractor to undertake the rectification of the items of defective building work within a period of 28 days.
The Deakins advised the QBSA that no rectification work had been undertaken, and the QBSA determined that the respondent failed to rectify the defective building work in accordance with its direction to rectify.
Offence 12
On or about 27 February 2008, the QBSA received a further complaint from the Santorini Body Corporate in relation to allegedly defective building work undertaken by the respondent, namely fixings on the fire indicator box. Accordingly, the QBSA issued a direction to rectify, directing the respondent to organise a licensed contractor to undertake rectification of two items of defective building work within a period of 28 days.
Santorini Body Corporate advised the QBSA that no rectification work had been done in relation to the direction and it was determined by the QBSA that the respondent failed to rectify the defective building work in accordance with the direction to rectify.
Offence 13
On or about 5 March 2008, a further complaint was made by the Sissons in relation to allegedly defective building work undertaken by the respondent, namely leaking windows in the dining area. The QBSA issued a direction to rectify and the respondent failed to organise rectification of the defects contained in the direction to rectify.
Offence 14
On or about 26 March 2008, the QBSA received a complaint from Christine Hawkins in relation to allegedly defective building work undertaken by the respondent at her property. The QBSA inspected the property at which time it was noted that there were several items of defective work done by the respondent. The QBSA issued a direction to rectify two items of defective building work within a 28 day period.
Ms Hawkins advised the QBSA that the respondent failed to organise rectification of the defective building work. Mr Hulme then attended for a reinspection and confirmed that no rectification work had been carried out. The QBSA determined that the respondent failed to rectify the defective building work in accordance with the relevant direction.
Offence 15
On or about 25 August 2008, Mr Brendon Muller complained about allegedly defective building work undertaken by the respondent at his property, namely water ingress into bay windows and plasterwork. Mr Hulme inspected the allegedly defective building work and issued a direction to rectify, directing the respondent to organise a licensed contractor to undertake the rectification of three items of defective building work.
The QBSA was advised that the respondent failed to organise for the rectification work within the relevant time and it was determined that the respondent failed to rectify the defective building work in accordance with the relevant direction.
Offence 16
On or about 2 February 2009, Mr Dean Chapman complained about allegedly defective building work undertaken by the respondent, namely water leaks through the roof into the lounge area. Mr Hulme inspected the allegedly defective building work and issued a direction to rectify within a 28 day period.
The QBSA was advised that the rectification work had not been undertaken and as such determined that the respondent failed to rectify the defective building work in accordance with the direction.
Offence 17
On or about 27 February 2009, a further complaint from the Deakins in relation to allegedly defective building work, namely damage to floors and wardrobes due to water ingress and non-compliant light fittings. The QBSA arranged for an inspection and following the inspection issued a direction to rectify to the respondent requiring him to organise a licensed contractor to undertake rectification of three items of defective building work within a period of 28 days.
The Deakins advised the QBSA that the respondent failed to organise rectification of the defective items and the building work. A reinspection was undertaken by Mr Hulme who confirmed that the respondent had failed to organise a licensed contractor to undertake rectification of the alleged defective building work.
Offence 18
A further complaint was made by the Aldridges on or about 2 March 2009 in relation to defective building work undertaken by the respondent, namely floor boards swelling and lifting due to water ingress under the front doors. Mr Hulme inspected the property and directed the respondent to rectify the defective building work within a 28 day period. The respondent failed to do so in accordance with the direction, notwithstanding the side doors at the side balcony of the bedroom had been rectified, but the consequential water damage to the flooring area had not.
Offence 19
On or about 29 October 2009, Mr Ashley Goodwin complained about allegedly defective building work undertaken by the respondent, namely water ingress, loose skirting tiles and inadequate or missing joints and trusses to the roof. Mr Hulme inspected the property and, whilst noting that several of the items complained of by Mr Goodwin were noted in a pre-purchase inspection report, in his view the inadequate waterproofing at the property and the omission of tie-downs of the trusses were the responsibility of the respondent. As such, the QBSA issued a direction to rectify, directing the respondent to organise a licensed contractor to undertake rectification of three items of defective building work at the property within a 28 day period.
The QBSA was advised by Mr Goodwin that there had been no contact from the respondent in relation to the rectification work. A reinspection occurred which confirmed that no rectification work had been undertaken.
Submissions by the QBSA
In its extensive written submissions, the QBSA submitted that the respondent failed to comply with 19 directions issued to him for the rectification of building works at various properties in breach of s 72 of the QBSA Act. Section 72 of the QBSA Act relevantly provides as follows:
(1) If the authority is of the opinion that building work is defective or incomplete, the authority may direct the person who carried out the building work to rectify the building work within the period stated in the direction.
...
(7) If a direction is given under this section to a person who is not currently licensed to carry out the required work, the person must have the work carried out by a licensed contractor.
...
(10) A person who fails to rectify building work as required by a direction under this section is guilty of an offence.
Maximum penalty—250 penalty units.
The QBSA submitted that, being the licensed contractor who undertook all of the relevant works, the respondent was responsible for personally undertaking or ensuring a licensed contractor undertook the rectification works. By not complying with the directions, it was submitted the respondent committed 19 offences resulting in proper grounds existing for the taking of disciplinary action against him.
The QBSA submitted that the penalty should apply for each proven breach in the application, as each breach should be considered a separate ground for taking disciplinary action. If this were not the case, the QBSA submitted that it would be compelled to institute multiple disciplinary actions in serious cases of this type, increasing the complexity, cost and workload of the Authority, the Tribunal and the relevant respondent.
It also submitted that s 49 of the Penalties and Sentences Act 1992 allows multiple offences as part of a series, or of a similar kind, to be fined as a single fine and not greater than the total maximum for each of the offences penalised. By implication, individual fines can be also imposed cumulatively. The QBSA submitted that when considering the penalty that might be imposed for a contravention of ss 89 and 90 of the QBSA Act, the Tribunal ought to have regard to the following general factors:
(a)the influence the quantum of penalty might serve as a deterrent to such conduct in the future;
(b)the degree to which the penalty may deter others from engaging in similar conduct; and,
(c)an assessment of the gravity of the respondent’s conduct against the purpose of the QBSA Act, which includes the protection of consumers.
The QBSA did not accept the respondent’s submission to the disciplinary charges as a mitigating factor. It submitted that of 29 directions to rectify, only three had been completed by the respondent. The QBSA submitted that the respondent ought to be viewed as a repeat offender and the penalty imposed by the Tribunal should be sufficient to emphasise the importance of complying with the QBSA’s written directions to rectify. According to the QBSA, an insignificant penalty may send the message that licensees who contravene the said notices may expect leniency from the Tribunal, and in this regard, such a message would be counter-productive.
The QBSA sought an order from the Tribunal that on each of the offences, a penalty in the range of $4,000 to $9,000 (totalling $67,000 to $171,000) was appropriate. No comparative cases were relied upon by the QBSA to support the submission. The range submitted for each breach according to the QBSA, was appropriate in the circumstances, having regard to the following factors:
(a)the nature of the breach;
(b)the fact that the respondent knew or ought to have known that he was in breach of the QBSA Act;
(c)the respondent disregarded the QBSA’s role in the regulation of the building industry; and,
(d)the need for specific as well as general deterrents – that is, to deter the respondent and members of the industry in general from refusing to comply with directions pursuant to the QBSA Act.
Submissions by the Respondent
The gravamen of the respondent’s submissions was that due to the respondent’s financial situation, he could not afford to employ others to rectify the defects or to seek recompense from subcontractors who performed the relevant works. He submitted that he had already been significantly paying for the consequences of the earlier directions which he did not deny that he was guilty of; however, his hands were tied due to the extreme financial situation and neglect of subcontractors involved, for which he was still dearly paying and will be for a long time to come. He noted that he had no funds to appoint a solicitor and was unable to take time off work to defend the proceedings against him.
Penalty
The Tribunal determines that proper grounds exist for disciplinary action against the respondent for contravention of s 72(10) of the QBSA Act and that an order imposing a penalty on the respondent is warranted for each offence.
Senior Member Endicott in Queensland Building Services Authority v Metal Line Brisbane Pty Ltd [2010] QCAT 164 at [26] – [28] stated:
[26] The purpose of disciplinary proceedings is to protect the public rather than to punish wrongdoing. This purpose can be achieved by maintaining the integrity of the statutory regulation scheme in the building industry which promotes confidence that building contractors are required to comply with statutory requirements for the protection of the public and consumers in the building industry.
[27] A contravention by a licensed contractor of statutory requirements tends to adversely impact on the integrity of an occupational regulatory scheme and to erode public confidence in regulatory scheme unless a penalty is imposed proportionate to the contravention.
[28] The Tribunal considers that a penalty should be imposed to act as a deterrent against contravention by this licensee and by all other licensees and to signal support for the integrity of the regulatory scheme.
The Tribunal has taken into account that the maximum penalty allowed for a breach of s 72(10) of the QBSA Act is $20,000.
It also has also taken into account the submissions made by the applicant and whilst noting that the respondent has avoided the need for a hearing of the substantive proceedings, such a factor should be taken into account when imposing the penalty. A significant penalty however must be imposed to act as a deterrent against contravention by this former licensee and to other potential licensees who fail to sufficiently comply with directions to rectify. Further a significant penalty must be imposed to provide support for the integrity of the regulatory scheme and to reflect the gravity of the extent of the contravention in each case. The contravention in the present case is demonstrated in that the respondent responded positively to the directions to rectify on only a handful of occasions but ignored the majority of directions issued by the QBSA. The offending conduct occurred over a period in excess of two years.
A penalty of $2,000 per each contravention is imposed, after taking into account the respondent’s mitigating factors, including his decision to seek cancellation of his licence.
In those circumstances, the Tribunal orders the respondent pay to the QBSA the sum of $38,000 by way of penalty within 90 days of this order.
In its submission, the QBSA also seeks costs from the respondent in the amount of $250 or alternatively that the respondent pay the QBSA’s costs as assessed. Whilst it is commendable the significant work undertaken by the QBSA in prosecuting the present application including the preparation of the supporting material, the interests of justice do not warrant departure from the usual order that each party to a proceeding bear their own costs because of the acceptance of the contraventions by the respondent and the parties were not represented by lawyers.
In those circumstances, the respondent is ordered to pay to the Queensland Building Services Authority the sum of $38,000 within 90 days.
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