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Turcinovic v Queensland Building and Construction Commission[2016] QCAT 279

Turcinovic v Queensland Building and Construction Commission[2016] QCAT 279

CITATION:

Turcinovic v Queensland Building and Construction Commission [2016] QCAT 279

PARTIES:

Hajrudin Turcinovic

(Applicant)

 

v

 

Queensland Building and Construction Commission

(Respondent)

APPLICATION NUMBER:

OCR161-15

MATTER TYPE:

General administrative review matters

HEARING DATE:

18 July 2016

HEARD AT:

Brisbane 

DECISION OF:

Member Hughes

DELIVERED ON:

26 July 2016

DELIVERED AT:

Brisbane 

ORDERS MADE:

  1. The decision of the Queensland Building and Construction Commission refusing the application by Hajrudin Turcinovic for a contractor licence in the class of Builder – Low Rise is confirmed.

CATCHWORDS:

GENERAL ADMINISTRATIVE REVIEW – OCCUPATIONAL LICENSING – BUILDER LICENCE - where decision not to grant builder licence – whether minimum financial requirements met – where no independent verification of current Net Tangible Assets – whether ‘fit and proper’ person to hold licence – whether builder acted with honesty and integrity – where builder provided incorrect information in application for licence – where no evidence of intent to mislead – where unpaid debts owing to Queensland Building and Construction Commission - where unpaid debt for insurance claims relating to licensee’s work - where builder did not include alleged debt owing to Commission as contingent liability in Net Tangible Assets – where alleged debt relates to multiple insurance claims - where no evidence to support defence to debt recovery proceedings for insurance claims paid for licensee’s work - whether builder failed to carry out commercial or statutory obligations – where debt owing for infringement notices – where builder failed to comply with 15 of 17 ‘Directions to Rectify’ – where multiple offences resulting in disciplinary proceedings – where history of undocumented variations – where recurring failure to comply with commercial and statutory obligations over extended period

Queensland Building and Construction Commission Act 1991 (Qld), s 31, s 35, s 48, s 108C

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20

Ericson v Queensland Building and Construction Commission [2014] QCA 297

Ericson v Queensland Building Services Authority [2013] QCA 391

Habchi & Anor v Turcinovic [2011] QCAT 309

HNT Civil Construction v Mahamoud [2013] QCAT 36

Ho & Anor v Turcinovic & Anor [2013] QCAT 248

Metal Line South Brisbane Pty Ltd v Turcinovic t/as HNT Civil Building Construction Maintenance [2011] QCAT 348

O'Brien v Gladstone Regional Council [2015] QCATA 82

Pop v Queensland Building Services Authority [2012] QCAT 388

Queensland Building and Construction Commission v Bloomfield & Anor [2015] QCATA 19

Turcinovic v Gebeyehu [2011] QDC 215

Turcinovic v Kavvadas [2013] QCAT 265

Turcinovic v Kavvadas [2014] QCAT 11

Turcinovic v Queensland Building Services Authority [2013] QCAT 541

APPEARANCES:

APPLICANT:

Mr Hajrudin Turcinovic represented himself

RESPONDENT:

Ms Jodie Stroud, solicitor appeared on behalf of the Queensland Building and Construction Commission

REASONS FOR DECISION

What is this Application about?

  1. [1]
    Hajrudin Turcinovic has been through a lot. He is a 64 year old builder with significant experience in the industry, including government tender work. For a while, his business was a success.
  2. [2]
    Things changed for the worse in 2001 when his son was severely beaten and permanently brain damaged, resulting in him needing constant care.
  3. [3]
    Mr Turcinovic continued to work while caring for his son at home. His customers began to default, causing significant financial strains on his business. On 14 August 2001, he became bankrupt.
  4. [4]
    Mr Turcinovic was discharged from bankruptcy on 20 September 2004 and continued to work. However, on 29 June 2011 the Queensland Building and Construction Commission suspended his Builder Licence for failing to provide evidence of his financial capacity. On 28 July 2011, the Commission then cancelled his licence for failing to provide that evidence.
  5. [5]
    On 16 February 2015, Mr Turcinovic applied for another licence. On 29 July 2015, the Commission refused Mr Turcinovic’s application because in the Commission’s view he did not satisfy minimum financial requirements, he had unpaid debts owing to the Commission and he is not ‘fit and proper’.
  6. [6]
    Mr Turcinovic considered the Commission’s decision unjustifiable and too harsh. He applied to the Tribunal to review the decision.

Preliminary matter

  1. [7]
    Mr Turcinovic’s solicitor, Mr Sam Nguyen was given leave to withdraw at the commencement of the hearing. Mr Turcinovic confirmed he wished to proceed without legal representation, although commendably Mr Nguyen did assist Mr Turcinovic for the initial part of the hearing.

What does the Tribunal do?

  1. [8]
    In a review application, the Tribunal’s purpose is to produce the correct and preferable decision by way of a fresh hearing on the merits.[1] This means that Mr Turcinovic does not need to prove the Commission’s decision is incorrect – the Tribunal makes its own decision.[2]
  2. [9]
    I accept the Commission’s finding that Mr Turcinovic satisfies the experience and technical requirements of the Licence.[3] In deciding Mr Turcinovic’s application, the issues for me to decide are whether Mr Turcinovic satisfies the Commission’s financial requirements,[4] and whether he is a ‘fit and proper’ person to hold the licence.[5]

Does Mr Turcinovic meet the Minimum Financial Requirements to hold a licence?

  1. [10]
    To meet the ‘Minimum Financial Requirements’ to hold a licence, Mr Turcinovic must provide relevant supporting information, not have unpaid debts owing to the Commission and not have an unpaid debt for paid insurance claims relating to his work.
  2. [11]
    For the reasons below, the Tribunal finds that Mr Turcinovic does not meet the Minimum Financial Requirements. The Commission submitted that it is mandatory for a builder to comply with the Minimum Financial Requirements, meaning that the Tribunal does not have a discretion to grant a licence where those requirements are not met.[6] In cases involving the cancellation of a builder’s licence, the Queensland Court of Appeal has expressed the view that a finding that an applicant does not meet the financial requirements is merely a pre-condition to the exercise of a discretion to cancel the licence: the circumstances in which the business failed to meet the requirements are a relevant, although not necessarily decisive, consideration.[7]
  3. [12]
    Although the Court of Appeal was considering the statutory provision relating to cancelling a licence[8] and these proceedings are to review a decision not to grant a licence, in fairness to Mr Turcinovic I will also consider his circumstances when considering whether he met the financial requirements.

Does Mr Turcinovic have evidence to support his claimed Net Tangible Assets?

  1. [13]
    In his licence application, Mr Turcinovic claimed Net Tangible Assets (NTA) of $36,000.00. However, during the hearing Mr Turcinovic conceded he had no assets, although he could borrow $19,000.00 from his son. When I referred Mr Turcinovic to his submissions noting a truck valued at more than $45,000.00, he clarified that a more realistic value would be $10,000.00 to $20,000.00.
  2. [14]
    Mr Turcinovic suggested that although a person with meagre financial resources could have difficulty in funding a construction business, his current financial circumstances present no risk that he would be unable to complete building contracts in the future.
  3. [15]
    Whatever the correct position might be, the difficulty is that Mr Turcinovic did not provide independent verification. Mr Turcinovic’s financial statements are outdated[9] and do not comply with the Commission’s ‘Minimum Financial Requirements’ Policy. Mr Turcinovic did not provide a current independent financial report or financial information to show his NTA position, including balance sheets, profit and loss statements and aged trade debtor and creditor listings.
  4. [16]
    Mr Turcinovic said that he failed to produce current financial statements as he had not been trading for a significant period and instead provided the financial information until his licence cancellation. At that time, his independent financial report concluded he met the ratio requirement of 1.03:1.
  5. [17]
    However, without evidence to support his current financial position, it is impossible to determine Mr Turcinovic’s current ability to meet his commercial obligations as a licensed builder.
  6. [18]
    Unfortunately for Mr Turcinovic, the Tribunal cannot be satisfied that his NTA position complies with the Minimum Financial Requirements to be a licensed builder.

What are the circumstances in which Mr Turcinovic has failed to meet the financial requirements?

  1. [19]
    Mr Turcinovic said that having to care for his son from home for a significant time caused significant financial strain on his business. The Tribunal accepts that this would have been a relevant circumstance to his ability to meet the financial requirements.
  2. [20]
    Mr Turcinovic also attributed many of his losses to the suspension and cancellation of his licence in 2011. He lost at least two contracts during his licence cancellation for a sum exceeding $670,000.00.[10] In August 2011, he lost the tender on a project for $129,260.00. The Tribunal accepts that this also would have affected Mr Turcinovic’s ability to meet the financial requirements.
  3. [21]
    However, these circumstances do not explain other events in his dealings as a builder that led to the suspension and cancellation of his licence and his dealings since. These are relevant to whether he is a ‘fit and proper’ person to hold a licence.

Is Mr Turcinovic a ‘fit and proper’ person to hold a licence?

Did Mr Turcinovic fail to act with honesty and integrity?

  1. [22]
    The Commission submitted that Mr Turcinovic knowingly provided false or misleading information because he failed to disclose that he is subject to a court order requiring payment of a debt that remains owing, that he became bankrupt in 2001, that he was previously subject to disciplinary proceedings for offences relating to building work and that he is subject to pending or current disciplinary proceedings.
  2. [23]
    Specifically, in the declaration he signed to support his application, Mr Turcinovic answered “No” to having a Court or Tribunal Order requiring him to pay a debt not yet paid in full, ever becoming bankrupt, ever having been disciplined for building work and ever had pending or current disciplinary proceedings for building work.
  3. [24]
    Mr Turcinovic admitted that he provided incorrect information in his application. However, Mr Turcinovic emphasised that he did not in any way intend to be dishonest. He explained that he “may have inadvertently missed the information” about the court proceeding but did not intend to mislead the Commission and disclosed it in June 2015, that he did not believe he had to declare his bankruptcy because it was more than ten years ago, and that he did not disclose the previous disciplinary action because the fine was substantially reduced from $43,448.55 to $5,654.00 but that he should have disclosed the current disciplinary proceeding.
  4. [25]
    Licensees should not take application forms lightly and signing a false declaration is serious.[11] However, intent is relevant.[12] During the hearing, Mr Turcinovic specifically refuted deliberately providing false information. Mr Turcinovic’s English is limited and he appears to have difficulties understanding forms without assistance.[13] Without positive evidence from the Commission of wilful or reckless disregard for the truth of the declaration or any action taken by the Commission against Mr Turcinovic for providing a false or misleading document,[14] I am unable to find that Mr Turcinovic intended to mislead the Commission.[15]
  5. [26]
    This is not a ground to refuse Mr Turcinovic’s application for a licence.

Does Mr Turcinovic have unpaid debts owing to the Commission?

  1. [27]
    As of 18 July 2016, Mr Turcinovic had a debt owing to the Commission of $8,236.10 for unpaid fines, dating back to 4 July 2011.[16] Mr Turcinovic claimed he has an arrangement with the State Penalties Enforcement Registry to repay $60 per fortnight for his outstanding fines, although the Commission’s evidence was that he has not complied with this.[17] Regardless, it is evident that Mr Turcinovic currently owes $8,236.10 in unpaid fines.

Does Mr Turcinovic have an unpaid debt for insurance claims relating to his work?

  1. [28]
    The Commission has ongoing proceedings in the District Court to recover $214,464.55 in insurance claims paid for work done by Mr Turcinovic.[18] The Commission is yet to obtain judgement and the Court refused an application for summary judgement on 31 March 2016.[19] The Commission has appealed that decision and the proceedings are still pending.[20]
  2. [29]
    Mr Turcinovic has not attempted to pay or enter a settlement arrangement with the Commission for these claims.[21] Mr Turcinovic submitted that the amount of debt is subject to genuine dispute and he has evidence and materials to prove that the complaints about his defective work were unfounded. He also claimed that one claim was caused by storm damage rather than his defective work.
  3. [30]
    The Tribunal is unable to comment on the merit of the insurance debt recovery proceedings against Mr Turcinovic, as they are yet to be finally determined. Certainly, on 15 October 2013, he was successful in an application to the Tribunal to set aside a ‘Direction To Rectify’ made on 14 February 2012.[22]
  4. [31]
    However, Mr Turcinovic did not take into account the debts owing to the Commission when calculating his NTA. Although Mr Turcinovic disputed the insurance debt of $214,465.55, as a contingent liability it is relevant to determine his net asset position.
  5. [32]
    Moreover, the Tribunal notes that the insurance debt recovery proceedings relate to multiple claims paid by the Commission over a period of several years. Mr Turcinovic did not seek review of most of the ‘Directions To Rectify’ or ‘Scopes of Works’ that resulted in these claims. Despite his assertions, Mr Turcinovic has not provided to the Tribunal any evidence to support a defence to these claims or why they were not properly paid under the relevant home warranty insurance policies.

Did Mr Turcinovic fail to carry out his commercial or statutory obligations?

  1. [33]
    A considerable period of ten years passed between the undoubtedly traumatic event involving Mr Turcinovic’s son and the cancellation of Mr Turcinovic’s licence. During this time and since then, Mr Turcinovic has failed to comply with his statutory and commercial obligations in ways unrelated to his personal circumstances.
  2. [34]
    As of 18 July 2016, Mr Turcinovic had a debt owing to the Commission of $8,236.10 for infringement notice offences, dating back to 4 July 2011.[23]
  3. [35]
    Between 19 June 2009 and 16 February 2015, Mr Turcinovic failed to comply with no fewer than 12 of 17 ‘Directions to Rectify’.[24]
  4. [36]
    Between 11 February 2010 and 20 March 2015, Mr Turcinovic committed six offences resulting in disciplinary proceedings and infringement notices for fines.[25] Between 13 October 2011 and 17 December 2013, Mr Turcinovic committed four offences resulting in disciplinary proceedings and demerit points.[26] On 15 June 2015, Mr Turcinovic committed a further two offences resulting in demerit points.[27]
  5. [37]
    These disciplinary proceedings include unlicensed contracting, failing to pay appropriate insurance premium and failing to rectify defective work. Although Mr Turcinovic disputed two of these infringement notices during the hearing, it is apparent that he remains an enforcement debtor with the State Penalties Enforcement Registry.
  6. [38]
    Mr Turcinovic said that in the past, he has succeeded in legal proceedings against his trade debtors. However, a review of proceedings both in and outside the Tribunal involving Mr Turcinovic reveals a chequered history of debt recovery and statutory compliance.
  7. [39]
    On 8 July 2011, the Tribunal awarded him $17,266.35 of a claim for $51,196.04.[28] On 29 July 2011, the Tribunal dismissed his claim for $2,560.00.[29] On 11 January 2013, the Tribunal dismissed his claim for $18,000.00 and ordered him to pay $1,952.55 for defects.[30] On 20 June 2013, the Tribunal awarded him $28,595.89 of a claim exceeding $52,189.60.[31]
  8. [40]
    In April 2011, Mr Turcinovic was awarded $53,765.96.[32] In January 2014, the Tribunal awarded him $144,457.40 plus costs of $72,513.37.[33] However, this also was substantially less than the amount he claimed. He is also yet to receive these amounts and has not provided any evidence of any steps taken by him to enforce these orders.
  9. [41]
    On 29 May 2013, the Tribunal ordered Mr Turcinovic refund a deposit of $20,000.00 because he misrepresented that he was the contracting builder and because he failed to comply with his statutory obligation to provide the customer with a copy of the signed contract.[34]
  10. [42]
    Mr Turcinovic claimed that defaults of his customers caused significant financial strains on his business. However, a common theme to Mr Turcinovic’s mixed success in legal proceedings is his history of undocumented variations.[35] His failure to comply with his statutory obligations for payment therefore lies at the very heart of his inability to recover money from debtors. To this extent, he has essentially been the author of his own misfortune.
  11. [43]
    The Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) includes objects of ensuring the maintenance of proper standards in the industry and provides remedies for defective building work. Mr Turcinovic’s dealings leading up to and since the cancellation of his licence and in particular his failure to pay his debt owing to the Commission, his ongoing failure to comply with ‘Directions To Rectify’, his history of disciplinary proceedings and his disingenuous dealings with customers are contrary to those objects.
  12. [44]
    The primary consideration is to protect persons with whom Mr Turcinovic might deal.[36] Unfortunately for Mr Turcinovic, the recurring nature of his failure to comply with his statutory and commercial obligations over an extended period suggests an indifference to both the Commission and his customers such that he is not a ‘fit and proper’ person to hold a licence.

What is the ‘correct and preferable’ decision?

  1. [45]
    The ‘correct and preferable’ decision is that the decision of the Queensland Building and Construction Commission refusing the application by Hajrudin Turcinovic for a contractor licence in the class of Builder – Low Rise is confirmed is confirmed.

Footnotes

[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20.

[2] O'Brien v Gladstone Regional Council [2015] QCATA 82 at [18].

[3] Statement of Reasons for the Decision dated 27 November 2015 at [21]; QBCC Opening Submissions at [42].

[4] Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) s 31(1)(c).

[5] QBCC Act s 31(1)(a).

[6] QBCC Act s 35(3)(a).

[7] Ericson v Queensland Building Services Authority [2013] QCA 391 at [27]-[28]; Ericson v Queensland Building and Construction Commission [2014] QCA 297 at [19].

[8] QBCC Act s 48.

[9] Independent Review Report of Spectrum Accountants dated 23 August 2010, Compilation Report of Spectrum Accountants dated 25 October 2010, Statement of Financial Position as at 31 March 2011.

[10] Submissions of Harry Turcinovic, undated but tendered at the hearing.

[11] Queensland Building and Construction Commission v Bloomfield & Anor [2015] QCATA 19 at [32].

[12] Ibid.

[13] Submissions of Harry Turcinovic, undated but tendered at the hearing.

[14] QBCC Act, s 108C.

[15] Queensland Building and Construction Commission v Bloomfield & Anor [2015] QCATA 19 at [32].

[16] Mr Broomhall, Mr Turcinovic and Shelley Lockton all agreed during the hearing that Mr Turcinovic currently owes $8,236.10 - see also statement of David Broomhall, Manager QBCC Debt Recovery Division, signed 19 May 2016 at [6]; QBCC Printout of Outstanding Amounts as at 8am 18 July 2016.

[17] Statement of Shelley Lockton, QBCC Senior Licence Entitlement Officer, dated 19 May 2016 at [26]; Email Lisa Asnicar, A/SPER Officer Debt Recovery to Shelley Lockton dated 22 April 2015.

[18] Initially filed as Supreme Court Claim No. 6024 of 2015 filed 18 June 2015; Statement of David Broomhall, Manager QBCC Debt Recovery Division, signed 19 May 2016 at [8(a)].

[19] Statement of David Broomhall, Manager QBCC Debt Recovery Division, signed 19 May 2016 at [8(c)].

[20] Ibid.

[21] Statement of Shelley Lockton, QBCC Senior Licence Entitlement Officer, dated 19 May 2016 at [27].

[22] Turcinovic v Queensland Building Services Authority [2013] QCAT 541.

[23] Although the Statement of David Broomhall, Manager QBCC Debt Recovery Division, signed 19 May 2016 at [6] cited an amount of $8236.10, both Mr Broomhall and Mr Turcinovic agreed during the hearing that Mr Turcinovic has since paid $1,240.91.

[24] During the hearing, Mr Turcinovic gave evidence that he had complied with “four or five”, although the Statement of Shelley Lockton, QBCC Senior Licence Entitlement Officer, dated 19 May 2016 at [20] noted that he failed to comply with 15 of 17 ‘Directions To Rectify’.

[25] Statement of Shelley Lockton, QBCC Senior Licence Entitlement Officer, dated 19 May 2016 at [20].

[26] Ibid.

[27] Ibid at [34].

[28] Habchi & Anor v Turcinovic [2011] QCAT 309.

[29] Metal Line South Brisbane Pty Ltd v Turcinovic t/as HNT Civil Building Construction Maintenance [2011] QCAT 348.

[30] HNT Civil Construction v Mahamoud [2013] QCAT 36.

[31] Turcinovic v Kavvadas [2013] QCAT 265.

[32] Turcinovic v Gebeyehu [2011] QDC 215.

[33] Turcinovic v Kavvadas [2014] QCAT 11.

[34] Ho & Anor v Turcinovic & Anor [2013] QCAT 248.

[35] As the learned Member noted in Turcinovic v Kavvadas [2014] QCAT 11 at [6].

[36] Pop v Queensland Building Services Authority [2012] QCAT 388.

Close

Editorial Notes

  • Published Case Name:

    Turcinovic v Queensland Building and Construction Commission

  • Shortened Case Name:

    Turcinovic v Queensland Building and Construction Commission

  • MNC:

    [2016] QCAT 279

  • Court:

    QCAT

  • Judge(s):

    Member Hughes

  • Date:

    26 Jul 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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