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Queensland Judgments
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  • Unreported Judgment

Queensland Building and Construction Commission v Pettit

 

[2016] QCAT 352

CITATION:

Queensland Building and Construction Commission v Pettit; Queensland Building and Construction Commission v Norman St Pty Ltd; Queensland Building and Construction Commission v Wilcok Investments Pty Ltd [2016] QCAT 352

PARTIES:

Queensland Building and Construction Commission

(Applicant)

 

v

 

Garth David Pettit

(Respondent)

PARTIES:

Queensland Building and Construction Commission

(Applicant)

 

v

 

Norman St Pty Ltd

(Respondent)

PARTIES:

Queensland Building and Construction Commission

(Applicant)

 

v

 

Wilcok Investments Pty Ltd

(Respondent)

APPLICATION NUMBER:

OCR088-16; OCR089-16; OCR090-16

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

13 July 2016

HEARD AT:

Brisbane

DECISION OF:

Senior Member O’Callaghan

DELIVERED ON:

13 July and 7 October 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

OCR088-16

  1. Queensland Building and Construction Commission has leave to be legally represented at the hearing.
  2. Holly Renee Sanders may attend the hearing by remote conferencing.
  3. Garth David Pettit must not carry out, or undertake to carry out, building work at or in relation to 9 Norman Street, Gympie in the State of Queensland unless Garth David Pettit holds a contractor’s licence of the appropriate class under the Queensland Building and Construction Commission Act 1991 (Qld) until further order of the Tribunal.
  4. No order as to costs.

OCR089-16

  1. Queensland Building and Construction Commission has leave to be legally represented at the hearing.
  2. Holly Renee Sanders may attend the hearing by remote conferencing.
  3. Norman St Pty Ltd (ACN 609 707 128) must not carry out, or undertake to carry out, building work at or in relation to 9 Norman Street, Gympie in the State of Queensland unless Norman St Pty Ltd (ACN 609 707 128) holds a contractor’s licence of the appropriate class under the Queensland Building and Construction Commission Act 1991 (Qld) until further order of the Tribunal.
  4. No order as to costs.

OCR090-16

  1. Queensland Building and Construction Commission has leave to be legally represented at the hearing.
  2. Holly Renee Sanders may attend the hearing by remote conferencing.
  3. Willock Investments Pty Ltd (ACN 084 175 351) must not carry out, or undertake to carry out, building work at or in relation to 9 Norman Street, Gympie in the State of Queensland unless Willock Investments Pty Ltd (ACN 084 175 351) holds a contractor’s licence of the appropriate class under the Queensland Building and Construction Commission Act 1991 (Qld) until further order of the Tribunal.
  4. No order as to costs.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – LICENCES AND REGISTRATION – where building work is likely to be carried out without appropriate licences – where QBCC has applied for prohibitory orders – whether prohibitory orders should be made

Corporations Act 2001 (Cth), s 1324

Queensland Building and Construction Commission Act 1991 (Qld), s 42(1), s 97B(3), s 97B(4),

APPEARANCES:

APPLICANT:

J Jagger, In House Legal Officer

RESPONDENT:

No appearance

REASONS FOR DECISION

  1. [1]
    The Queensland Building and Constructions Commission (‘the QBCC’) applied to the Tribunal for orders prohibiting David Pettit, Norman St Pty Ltd and Wilcok Investments Pty Ltd (‘the Respondents’) from carrying out building work without holding appropriate licences.
  2. [2]
    The applications were served on the Respondents.
  3. [3]
    The Tribunal made directions setting the application down for an oral hearing and giving the Respondents leave to attend the hearing by phone.
  4. [4]
    The Respondents did not attend the hearing or provide any response to the applications.
  5. [5]
    I made orders at the hearing of the application in all three matters prohibiting the Respondents from carrying out any building work without the appropriate licence.
  6. [6]
    The QBCC asked for written reasons for that decision and these are the reasons.

Tribunal’s jurisdiction to make the order

  1. [7]
    The Tribunals power to make the orders is found in section 97B of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’).
  2. [8]
    Section 97B provides:

97B Stop orders

  1. (1)
    This section applies if the tribunal is satisfied, on application by the commission, that something is being done, or is about to be done, in contravention of a prescribed provision.
  1. (2)
    The tribunal may, by order, prohibit the person who is doing, or about to do, the thing (the prohibited person) from starting or continuing the thing.
  1. [9]
    There are further provisions applicable if (unlike this case) an order is made without notice to the prohibited persons.[1]
  2. [10]
    A maximum penalty of 500 penalty units applies if the prohibited person contravenes an order made under this section.
  3. [11]
    Section 42(1) of the QBCC Act provides that a person must not carry out, or undertake to carry out, building work unless the person holds a contractor’s licence of the appropriate class under this act.
  4. [12]
    QBCC had evidence which they say established that the Respondents were doing, or at least were about to do, something in contravention of s 42 of the QBCC Act.
  5. [13]
    QBCC correctly noted in their written submissions that the process is a two step process:
    1. QBCC bears the onus of satisfying the Tribunal that the Respondents are undertaking or about to undertake building work without holding an appropriate licence; and
    2. The Tribunal then has the discretion to make the orders sought.

Is the Tribunal satisfied that the Respondents are ‘about to’ carry out building work without the appropriate licence

  1. [14]
    The QBCC relies on the evidence of QBCC Investigator Holly Renea Sanders. Two affidavits of Ms Sanders were filed in the proceedings.[2]
  2. [15]
    Ms Sanders explains:
    1. Norman St Pty Ltd was registered on 7 February 2015;
    2. Garth Pettit is the Director of Norman St Pty Ltd;
    3. Willock Investments is a shareholder of Norman St Pty Ltd;
    4. Mr Pettit is the Director of Willock Investments;
    5. Norman St Pty Ltd owns land at 9 Norman Street Gympie;
    6. Willock Investments owns property at 26 Gympie View Drive Southside and Shayduk Close Gympie;
    7. Neither Norman St Pty Ltd, Mr Pettit or Wilcok Investments Pty Ltd hold contractors licences.
  3. [16]
    Proceedings in the Magistrates Court at Gympie had already been commenced against Mr Pettit and Willock Investments for carrying out unlicensed building work at Gympie View Drive and Shayduk Close Gympie and for making use of a third party licensee’s licence to pretend to be a licensee in producing a certificate of insurance.
  4. [17]
    Those proceedings had not been finalised at the time of the hearing.
  5. [18]
    Further investigations from the Gympie Regional Council established that Norman St Pty Ltd and Mr Pettit had made applications with respect to development approval to subdivide 9 Norman Street and to construct residential units on that property.
  6. [19]
    There was evidence that Norman St Pty Ltd and Mr Pettit had carried out site testing and classification in preparation for the construction of a building; arranged and conducted on site meetings and inspections; and arranged for the issuing of certificates from the Council with respect to the development of 9 Norman Street.[3]
  7. [20]
    The QBCC submitted that this conduct was, in fact, within the definition of building work and building work services.[4]
  8. [21]
    It further submitted that it was, however, not necessary to rely on building work having been carried out in that the Tribunal could be readily satisfied on the evidence that the Respondents intended to carry out building work.
  9. [22]
    I determined at the hearing that there was sufficient evidence for me to be satisfied to the requisite civil standard that the Respondents were about to carry out building work without holding appropriate licenses in breach of the QBCC Act.

Should an order be made prohibiting the Respondents from carrying out works?

  1. [23]
    The power to make the order is discretionary.
  2. [24]
    The QBCC submitted, and I accepted, that the Tribunal should adopt the considerations that have been taken into account by Courts in exercising a discretion under a similar provision in the Corporations Act 2001 (Cth). This provision gives power to Courts to issue a prohibitory injunction to prevent a person engaging in conduct that would constitute a contravention of that Act.[5]
  3. [25]
    Those factors are:
    1. Whether the injunction would have some utility or serve some purpose within the contemplation of the Act; and
    2. Whether there is a real risk of future contravention.
  4. [26]
    I agreed that those factors (although not exclusive) are relevant to give consideration to in deciding whether to make the order.
  5. [27]
    I agreed with the QBCC that the orders sought would support the objective of the legislation in protecting consumers of building services and ensuring builders are appropriately licensed.
  6. [28]
    The order should be a specific deterrent against the Respondents engaging in unlicensed contracting and unlicensed builders generally.
  7. [29]
    In taking this proactive step in obtaining the order, it would mean the Respondents would face a larger financial penalty for contravening a Tribunal order (500 penalty units) as opposed to a fine (250 penalty units) for contravening s 42 of the QBCC Act if they engaged in unlicensed contracting.
  8. [30]
    As to any balance of convenience argument, I noted the Respondents would suffer no detriment provided they do not engage in unlicensed contracting.
  9. [31]
    The grant of the order therefore did serve a purpose contemplated by the Act.
  10. [32]
    I also accepted that based on the evidence of past conduct of unlicensed contracting the subject of the Court proceedings, and the steps taken thus far with 9 Norman Street, there was a risk that if the order was not made future contravention would occur.
  11. [33]
    The Respondents had been served with the application and did not come forward to argue the case against making the order. They did not provide any evidence to counter the inference from the evidence provided that unlicensed building works were likely to be carried out.
  12. [34]
    In those circumstances, I considered it appropriate to make the orders sought.

Footnotes

[1] QBCC Act s 97B(3), (4).

[2] Exhibit 1, dated 28 June 2016; Exhibit 2, dated 4 July 2016.

[3] Affidavit of Holly Renee Sanders dated 28 June 2016, at para [12].

[4] QBCC submissions dated 29 June 2016, at paras [52]-[58].

[5] Corporations Act 2001 (Cth) s 1324.

Close

Editorial Notes

  • Published Case Name:

    Queensland Building and Construction Commission v Pettit; Queensland Building and Construction Commission v Norman St Pty Ltd; Queensland Building and Construction Commission v Wilcok Investments Pty Ltd

  • Shortened Case Name:

    Queensland Building and Construction Commission v Pettit

  • MNC:

    [2016] QCAT 352

  • Court:

    QCAT

  • Judge(s):

    Senior Member O'Callaghan

  • Date:

    07 Oct 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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