Queensland Building Services Authority v Silverback Constructions Pty Ltd - [2013] QCAT 222

CITATION:

Queensland Building Services Authority v Silverback Constructions Pty Ltd [2013] QCAT 222

PARTIES:	Queensland Building Services Authority (Applicant)
v
Silverback Constructions Pty Ltd (Respondent)

APPLICATION NUMBER:

OCR298-12

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Bevan Hughes, Member

DELIVERED ON:

8 May 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. That Silverback Constructions Pty Ltd pay the Queensland Building Services Authority a penalty of $4,800 by 4:00pm on 11 June 2013.

2. Each party pays its own costs of and incidental to the proceedings.

CATCHWORDS:

Exceeding Annual Allowable Turnover – where significantly exceeded – different director during relevant period – warning letter sent

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

What is this Application about?

During the 2011-12 licence year, Silverback Constructions Pty Ltd exceeded its Allowable Annual Turnover (AATO) by $3,222,761 or 1074 percent. Silverback did not notify the Queensland Building Services Authority that it was likely to exceed the AATO, nor did it obtain the Authority’s consent to exceed the AATO.
This means that Silverback breached its builder licence requirements. The Authority therefore proceeded with a disciplinary application against Silverback.
The reason for these requirements is to help ensure that builders trade within their means and are able to honour their commitments to consumers, contractors and suppliers.
The Tribunal makes the following orders with the agreement of the Authority and Silverback[1]:
(a)That proper grounds exist for taking disciplinary action against Silverback Constructions Pty Ltd in that it contravened sections 89(a) and (k) of the Queensland Building Services Authority Act 1991 in the 2011-12 licence year by exceeding its Allowable Annual Turnover (AATO) by $3,222,761 or 1074 percent, without first notifying the Queensland Building Services Authority that it was likely to exceed its AATO or obtaining the Authority’s approval; and
(b)That each party pays its own costs of and incidental to the proceedings.
[1] Statement of Agreed Facts dated 9 April 2013, paragraph 14.
It is then for…

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: [2013] QCAT 222
Decision Date

CaseChat Overview and Summary

The Queensland Building Services Authority (QBSA) filed a disciplinary application against Silverback Constructions Pty Ltd, asserting that the respondent had breached its builder's licence by significantly exceeding its Allowable Annual Turnover (AATO) during the 2011-12 licence year. The Tribunal was required to determine whether the respondent had contravened the licensing requirements and, if so, to impose an appropriate penalty. The legal issues centered around whether Silverback had indeed exceeded its AATO without proper notification or consent and what penalty was appropriate given the circumstances.

The Tribunal found that Silverback had indeed exceeded its AATO by a substantial margin, amounting to $3,222,761 or 1074 percent. This breach occurred despite a previous warning from the QBSA regarding a suspected AATO breach for the prior year. The Tribunal considered several factors in determining the appropriate penalty, including the size of the business, the extent of the breach, and the absence of prior breaches. The Tribunal also noted that Silverback had been warned about potential AATO breaches but failed to take appropriate action.

In assessing the penalty, the Tribunal compared the present case to previous decisions where similar breaches occurred. The Tribunal found that while some cases warranted higher penalties due to multiple breaches or larger excesses, the present case warranted a penalty closer to $5,000, considering the significant percentage by which the AATO was exceeded. The Tribunal concluded that a penalty of $4,800 was appropriate to ensure compliance with licensing requirements and to deter future breaches.

The Tribunal ordered that Silverback Constructions Pty Ltd pay a penalty of $4,800 to the Queensland Building Services Authority by 4:00pm on 11 June 2013. Additionally, each party was ordered to bear its own costs of and incidental to the proceedings.

Orders