Queensland Building Services Authority v Smith
[2012] QCAT 1
•5 January 2012
| CITATION: | Queensland Building Services Authority v Smith [2012] QCAT 1 |
| PARTIES: | Queensland Building Services Authority |
| v | |
| Mr Huia Karaitiana Smith |
| APPLICATION NUMBER: | OCR147-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr J R Forbes, Member |
| DELIVERED ON: | 5 January 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. That by way of disciplinary sanction the Respondent pay the sum of nine hundred and fifty dollars ($950) to the Queensland Building Services Authority within sixty (60) days of service of this order upon him. |
| CATCHWORDS: | Building contractor – regulated contract – failure to ensure that contract is wholly in writing – disciplinary sanction Queensland Building Services Authority Act 1991 ss 88, 89(a) |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
In this disciplinary proceeding the following orders are sought:
(i)That proper grounds exist for taking disciplinary action against Huia Karaitiana Smith (“the Respondent”), licence number 1136340, pursuant to section 88 and section 89(a) of the Queensland Building Services Authority Act 1991 (“QBSA Act”) because the Respondent contravened a requirement imposed under the Domestic Building Contracts Act 2000 (“the DBC Act”) by failing to put a contract in writing.
(ii)That pursuant to section 91(3) of the QBSA Act the Respondent be ordered to pay a penalty.
(iii)That the Respondent be ordered to pay the Applicant’s costs as agreed, or failing agreement, as assessed.
Appropriate jurisdiction is conferred on this Tribunal by sections 6, 9, 10 and 102 of the Queensland Civil and Administrative Tribunal Act 2009, sections 88 and 89 of the BSA Act, and sections 8, 9 and 26 to 30 of the Domestic Building Contracts Act 2000.
Section 89 of the BSA Act provides, so far as is now material:
“For section 88, proper grounds exist for taking disciplinary action against a licensee if--
(a) the licensee contravenes a requirement imposed under this Act or the Domestic Building Contracts Act 2000 ...”.
and section 26 of the DBC Act provides:
“A building contractor who enters into a regulated contract must ensure the contract--
(a) is in written form when it is entered into; or
(b) is put into written form—(i) as soon as practicable (but within 5 business days) after it is entered into; and
(ii) before a start is made in carrying out the subject work.
Maximum penalty--80 penalty units.”
The requisite contents of a regulated contract are elaborated in sections 27-30 of the same Act. In particular, the writing must set out in full all the terms of the contract.[1]
[1] DBC Act, s 27(2)(b).
The expression “domestic building work” includes work associated with the renovation, alteration, extension, improvement or repair of a home, and without limiting that description, landscaping and paving.[2]
[2] DBC Act, ss 8(3)(b), (4)(a), (b).
A “regulated contract” is a domestic building contract for which the contract price is more than the “regulated amount”[3], which at all material times was $3,300.[4]
[3] DBC Act, s 9(1).
[4] DBC Act, 2nd Schedule.
The parties to the present contract were the Respondent, as builder, and Samantha Martin and Marcus Dutton, as owners of premises at 18 Collett Court, Marian, Mackay. The job entailed concrete work in a garage and around a swimming pool. The agreed price was $3,570.
The Respondent, by his solicitors, Strutynski Law of Mackay, and by his affidavit sworn on 19 November 2011, admits the breach alleged.
The Applicant does not pursue its initial application for costs.[5] The only remaining issue, therefore, is the amount of the sanction to be applied.
[5] Submissions of Applicant, 21 October 2011.
[10]The primary purpose of a disciplinary sanction is protective, rather than penal.[6] It is obvious that the interest to be protected in a case of this kind is that of the building owner, who is entitled to a complete contract in writing, in accordance with the DBC Act.
[6]NSW Bar Association v Evatt (1968) 117 CLR 177; 109, 113; Ex parteAttorney-General (Cth); Re a Barrister and Solicitor (1972) 20 FLR 234 at 244; Clyne v NSW BarAssociation (1960) 104 CLR 186; MacMillan v PharmaceuticalCouncil of WA [1983] WAR 166 at 174; Hardcastle vCommissioner of Police (1986) 53 ALR 593 at 597; PoliceService Board v Morris (1985) 156 CLR 397 at 412; Adamsonv Queensland Law Society Inc [1990] 1 Qd R 498 at 504.
[11]The Applicant submits that the Respondent should be fined no less than $800, lest other recipients of an infringement notice[7] gain the impression that, by ignoring it (as did the Respondent) they may emerge with a lighter sanction that such a notice entails. The Applicant seeks a fine of between $1,500 and $2,000, payable within 60 days. The Applicant points out that the work was left unfinished and in an unsatisfactory state. However, that is not the subject of a charge in this case, and I do not regard it as a matter of aggravation relevant to the existing charge.
[7]State Penalties Enforcement Act 1999, Part 3, ss 13ff; State Penalties Enforcement Regulation 2000, s 4, Schedule 1, specifying a fine of 8 penalty units ($800) for an infringement of s 26 of the DBC Act.
[12]The Respondent, in mitigation, refers to “family issues”, including his partner’s and his mother’s ill health, and the recent death of his brother in New Zealand. He says that these events affected the normal conduct of his business, and proper attention to the requirements of the Act. These assertions are not challenged, doubtless because it would be difficult, not to say invidious, for the Applicant to do so. They deserve due consideration. The Respondent says, further, that he has held a builder’s licence since 2008, and has not been held responsible for any other breach of discipline. These claims are also undisputed.
[13]I note that the price of the contract was only $270 beyond the threshold of a “regulated contract”.
[14]I find that proper grounds exist for taking disciplinary action against the Respondent Karaitiana Smith, pursuant to section 88 and section 89(a) of the Queensland Building Services Authority Act 1991 (“QBSA Act”), in that he contravened a requirement imposed under the Domestic Building Contracts Act 2000 by failing to put a regulated contract in writing.
[15]In the circumstances I consider that an appropriate sanction is $950.
ORDER
That by way of disciplinary sanction the Respondent pay the sum of nine hundred and fifty dollars ($950) to the Queensland Building Services Authority within sixty (60) days of service of this order upon him.
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