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Queensland Building and Construction Commission v D Block Constructions Pty Ltd[2015] QCAT 62

Queensland Building and Construction Commission v D Block Constructions Pty Ltd[2015] QCAT 62

CITATION:

Queensland Building and Construction Commission v D Block Constructions Pty Ltd [2015] QCAT 62

PARTIES:

Queensland Building and Construction Commission

(Applicant)

 

v

 

D Block Constructions Pty Ltd

(Respondent)

APPLICATION NUMBER:

OCR242-14

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane 

DECISION OF:

Member Hughes

DELIVERED ON:

23 February 2015

DELIVERED AT:

Brisbane 

ORDERS MADE:

  1. Proper grounds exist for taking disciplinary action against D Block Constructions Pty Ltd pursuant to section 89(j) of the Queensland Building and Construction Commission Act 1991.
  2. D Block Constructions Pty Ltd pays to the Queensland Building and Construction Commission a penalty of $3,850 by 4pm on 30 March 2015.
  3. D Block Constructions Pty Ltd pays to the Queensland Building and Construction Commission its costs fixed at $1,500 by 4pm on 30 March 2015.

CATCHWORDS:

OCCUPATIONAL REGULATION – DISCIPLINARY PROCEEDINGS – where builder failed to comply with Direction To Rectify – where Queensland Building and Construction Commission issued Notice of Infringement – where Commission paid out statutory claim to rectify Builder’s defective work – where Builder told owner after receiving Notice of Infringement that it would rectify – where Builder did not attempt to rectify and did not comply with Notice of Infringement

COSTS – INTERESTS OF JUSTICE where Builder forced Commission to commence proceedings and then failed to engage with Tribunal process

Penalties and Sentences Act 1992 (Qld) s 5

Queensland Building and Construction Commission Act 1991 (Qld) ss 89, 91

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 102

Queensland Building Services Authority v. Black, Unreported D033/92, 13 April 1993

Queensland Building Services Authority v. Colmer [2013] QCAT 61

Queensland Building Services Authority v. Flowtech Pty Ltd [2013] QCAT 517

Queensland Building Services Authority v. Last Laugh Pty Ltd [2011] QCAT 263

Queensland Building Services Authority v. Lindenberg [2004] CCT L009-04

Queensland Building Services Authority v. Reid [2012] QCAT 199

Queensland Building Services Authority v. Rowlands [2010] QCAT 308

Queensland Building Services Authority v. Ward [2011] QCAT 289

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 (Qld) (QCAT Act).

REASONS FOR DECISION

What is this Application about?

  1. [1]
    D Block Constructions Pty Ltd failed to comply with the Queensland Building and Construction Commission’s Direction to Rectify.[1]
  2. [2]
    The Commission then issued an Infringement Notice for a penalty of $2,200.[2]
  3. [3]
    Instead of paying the penalty, D Block belatedly emailed the home owners saying that it “would like to complete” the Direction To Rectify.[3] It never did.
  4. [4]
    The Commission then notified D Block of the approval of a claim under the statutory insurance scheme of $4,881.20 to rectify the building work.[4]
  5. [5]
    The Commission seeks a penalty to be imposed on D Block for its failure to comply with the Direction to Rectify.

Are there grounds for disciplinary action against D Block?

  1. [6]
    Failing to comply with a Direction To Rectify are grounds for disciplinary proceedings against D Block. D Block’s failure to comply alone is sufficient:

[O]nce the [Commission] has demonstrated that there has been a relevant direction and failure to comply with it, proper grounds for taking disciplinary action are established. It is quite irrelevant to that determination that the builder may have had some reason, even a good reason, for failing to comply with the direction.[5] 

  1. [7]
    D Block accepts that proper grounds exist for disciplinary action.[6]
  2. [8]
    I therefore find proper grounds for disciplinary proceedings against D Block for failing to comply with the Direction To Rectify.[7]

What is the appropriate penalty?

What are the relevant factors?

  1. [9]
    The Tribunal must then determine penalty. The Tribunal may impose a penalty of an amount up to $110,000.[8] The Authority contends that the appropriate penalty is “in the range of $3,000 to $5,000.”[9]
  2. [10]
    D Block made no submissions on penalty.
  3. [11]
    The Tribunal has considered the below factors to determine the penalty for D Block failing to comply with the Commission’s Direction To Rectify:
    1. (a)
      D Block has made no attempt to comply with the Direction;
    2. (b)
      D Block has made no attempt to pay the penalty in the Infringement Notice;
    3. (c)
      D Block has made no attempt to pay the Notice of Debt;
    4. (d)
      D has no history of other offences under the Queensland Building and Construction Commission Act 1991 (Qld); and
    5. (e)
      The Direction had six items of work totalling $4,881.20.

How does the present application compare with previous decisions?

  1. [12]
    Licensees must heed Directions from the Commission - failure to rectify can never be a viable commercial option.[10]
  2. [13]
    In Rowlands,[11] the Tribunal imposed a penalty of $2,500. Like D Block, the builder had a good record. However, unlike D Block the builder paid to complete the work at no cost to the home owner.
  3. [14]
    In Last Laugh,[12] the Tribunal imposed a penalty of $3,000. However, unlike D Block the builder made some attempt to rectify even though the cost was substantially higher.
  4. [15]
    In Ward,[13] the Tribunal imposed a penalty of $6,000. However, this was effectively $3,000 per direction as the builder had not complied with two directions.[14] Like D Block, the builder made no attempt to rectify despite ample time.
  5. [16]
    In Reid,[15] the Tribunal imposed a penalty of $3,000. Unlike D Block, the builder made some attempt to rectify.
  6. [17]
    In Colmer,[16] the Tribunal imposed a penalty of $3,000. Unlike D Block, the builder made some attempts to rectify, albeit “incomplete or unsuccessful”.[17] The learned Member specifically accepted the attempts to rectify as “a mitigating factor”.[18]
  7. [18]
    The purpose of imposing a penalty is well established:

… the purpose of the imposition of a penalty is to act as a deterrent and to insure that there is compliance with licensees’ obligations under the Act which is administered by the [Commission]. A direction to rectify must be complied with in the interests of both the industry and consumers and, if it is not then sanctions will be imposed.[19] 

  1. [19]
    Rowlands, Last Laugh, Reid and Colmer are all distinguishable because D Block made no attempt to rectify.
  2. [20]
    D Block’s misrepresentation that it would rectify the work aggravates the offence because it is a broken promise that can only further undermine consumer confidence in the industry as a whole:

It is fundamental that a person to whom the direction to rectify is issued… should comply with it. Failure to rectify causes the building industry to be brought into disrepute and consumers lose confidence in the industry.[20]

  1. [21]
    To deter broken promises to consumers and help protect the public invokes a greater sanction than the $3000 for each direction in Ward. Public confidence in the industry is paramount.[21]
  2. [22]
    $3000 was the equivalent of 30 penalty units. The appropriate penalty is 35 penalty units to deter misrepresentations and help restore public confidence. The value of a penalty unit has increased from $100 to $110.[22]
  3. [23]
    The appropriate penalty is therefore $3,850.

Should D Block pay the Commission’s costs?

  1. [24]
    The Commission also seeks its costs fixed at $1,500.
  2. [25]
    The Tribunal has a discretion to award cost if in the interests of justice.[23] I am satisfied that D Block’s conduct before and during these proceedings warrants an award of costs.
  3. [26]
    D Block expended no resources in attempting to resolve these issues with the home owner, the Commission or the Tribunal. Yet its dilatory conduct compelled the home owner, the Commission and the Tribunal to incur resources to resolve issues to which D Block had no defence. It is not in the interests of justice that a party at fault fails to engage and thereby unreasonably compels others to incur resources.
  4. [27]
    D Block ignored the Infringement Notice[24] and thereby forced the Commission to bring disciplinary proceedings. D Block then failed to engage with the Tribunal process.
  5. [28]
    Although the Commission issued an infringement notice for $2,000, it has been put to additional expense to secure compliance.[25] By not paying the fine, D Block forced the Commission to commence disciplinary proceedings in the Tribunal and file evidence and submissions to which D Block had no defence.[26] Imposing a fine at an early stage is an attempt to save both parties the time and cost of Tribunal proceedings.[27] D Block did not avail itself of these overtures.
  6. [29]
    Although the Commission used its own legal staff, this does not mean that it did not incur costs. It pays its legal staff, who expended time and resources to prepare the application. The Commission’s resources were thereby diverted to commencing a proceeding to pursue the disciplinary action against D Block.[28] This included preparing and filing the application, preparing and filing supporting evidence and submissions to assist the Tribunal and attending the Directions Hearing.[29] 
  7. [30]
    The Commission seeks an amount that is not unreasonable given the volume of the material and the resources expended.
  8. [31]
    The Tribunal therefore also orders that D Block pay to the Commission its costs of $1,500.

What are the appropriate Orders?

  1. [32]
    The Tribunal orders that D Block pay to the Commission the amount of $3,850 plus $1,500 costs by 4pm on 30 March 2015.

Footnotes

[1] Direction To Rectify No. 39626 dated 28 November 2013.

[2] Infringement No. 16772 dated 13 January 2014.

[3] Email Derek Quan to Warren and Lynne dated 14 January 2014.

[4] Notice Of Debt dated 23 January 2014.

[5] Queensland Building Services Authority v. Black, Unreported D033/92, 13 April 1993.

[6] Directions By Consent dated 4 December 2014.

[7] Pursuant to the Queensland Building and Construction Commission Act 1991 (Qld)      s 89(j).

[8] Queensland Building and Construction Commission Act 1991 (Qld) s 91(3) and Penalties and Sentences Act 1992 (Qld) s 5.

[9] “Submissions Of The Applicant On Penalty” at paragraph 24.

[10] Queensland Building Services Authority v. Rowlands [2010] QCAT 308 at [9].

[11] Queensland Building Services Authority v. Rowlands [2010] QCAT 308.

[12] Queensland Building Services Authority v. Last Laugh Pty Ltd [2011] QCAT 263.

[13] Queensland Building Services Authority v. Ward [2011] QCAT 289.

[14] Ibid at [24].

[15] Queensland Building Services Authority v. Reid [2012] QCAT 199.

[16] Queensland Building Services Authority v. Colmer [2013] QCAT 61.

[17] Ibid at [18].

[18] Ibid.

[19] Queensland Building Services Authority v. Last Laugh Pty Ltd [2011] QCAT 263 at [27].

[20] Queensland Building Services Authority v. Lindenberg [2004] CCT L009-04 cited with approval in Queensland Building Services Authority v. Ward [2011] QCAT 289 at [9].

[21] Queensland Building Services Authority v. Ward, Ibid at [23].

[22] Penalties and Sentences Act 1992 (Qld) s 5.

[23] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 102.

[24] Queensland Building Services Authority v. Last Laugh Pty Ltd [2011] QCAT 263 at [36].

[25] Queensland Building Services Authority v. Rowlands [2010] QCAT 308 at [10].

[26] Queensland Building Services Authority v. Last Laugh Pty Ltd, Ibid at [25].

[27] Ibid and Queensland Building Services Authority v. Flowtech Pty Ltd [2013] QCAT 517 at [27].

[28] Queensland Building Services Authority v. Last Laugh Pty Ltd, Ibid at [25].

[29] Directions Hearing held on 4 December 2014.

Close

Editorial Notes

  • Published Case Name:

    Queensland Building and Construction Commission v D Block Constructions Pty Ltd

  • Shortened Case Name:

    Queensland Building and Construction Commission v D Block Constructions Pty Ltd

  • MNC:

    [2015] QCAT 62

  • Court:

    QCAT

  • Judge(s):

    Member Hughes

  • Date:

    23 Feb 2015

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Queensland Building Services Authority v Colmer [2013] QCAT 61
3 citations
Jump To
Cite 1 - [2013] QCAT 61
Cite 2 - [2013] QCAT 61
Cite 3 - [2013] QCAT 61
Queensland Building Services Authority v Flowtech Hydraulics Pty Ltd [2013] QCAT 517
2 citations
Jump To
Cite 1 - [2013] QCAT 517
Cite 2 - [2013] QCAT 517
Queensland Building Services Authority v Last Laugh Pty Ltd [2011] QCAT 263
6 citations
Jump To
Cite 1 - [2011] QCAT 263
Cite 2 - [2011] QCAT 263
Cite 3 - [2011] QCAT 263
Cite 4 - [2011] QCAT 263
Cite 5 - [2011] QCAT 263
Cite 6 - [2011] QCAT 263
Queensland Building Services Authority v Lindenberg [2004] CCT L0 9-04
2 citations
Jump To
Cite 1 - [2004] CCT L0 9-04
Cite 2 - [2004] CCT L0 9-04
Queensland Building Services Authority v Reid [2012] QCAT 199
2 citations
Jump To
Cite 1 - [2012] QCAT 199
Cite 2 - [2012] QCAT 199
Queensland Building Services Authority v Rowlands [2010] QCAT 308
4 citations
Jump To
Cite 1 - [2010] QCAT 308
Cite 2 - [2010] QCAT 308
Cite 3 - [2010] QCAT 308
Cite 4 - [2010] QCAT 308
Queensland Building Services Authority v Ward Construction Pty Ltd [2011] QCAT 289
5 citations
Jump To
Cite 1 - [2011] QCAT 289
Cite 2 - [2011] QCAT 289
Cite 3 - [2011] QCAT 289
Cite 4 - [2011] QCAT 289
Cite 5 - [2011] QCAT 289

Cases Citing

Case NameFull CitationFrequency
Christoff v Queensland Building and Construction Commission [2017] QCAT 2102 citations
Queensland Building and Construction Commission v Williams [2015] QCAT 3552 citations
1

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