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  4. Christoff v Queensland Building and Construction Commission - [2017] QCAT 210

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Christoff v Queensland Building and Construction Commission[2017] QCAT 210

Christoff v Queensland Building and Construction Commission[2017] QCAT 210

CITATION:

Christoff v Queensland Building and Construction Commission [2017] QCAT 210

PARTIES:

Grant Christoff t/as Grant Christoff Landscaping

(Applicant)

v

Queensland Building and Construction Commission

(Respondent)

APPLICATION NUMBER:

OCR063-16

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Paratz

DELIVERED ON:

16 June 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Grant Christoff is to pay to the Queensland Building and Construction Commission a penalty fixed in the amount of $1,100.00.
  1. Grant Christoff is to pay to Mr Shane Ford the amount of $4,817.54 as restitution for defective building work.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – DISCIPLINARY PROCEEDINGS – LANDSCAPER – where a landscaper failed to comply with a Direction to Rectify – where the QBCC brought disciplinary proceedings in the Tribunal

Queensland Building and Construction Commission Act 1991 (Qld), s 74D

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20, s 24

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

Queensland Building Services Authority v Dinstarr Developments Pty Ltd [2012] QCAT 413

Queensland Building Services Authority v Ward Construction Pty Ltd [2011] QCAT 289

APPEARANCES:

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

REASONS FOR DECISION

  1. [1]
    Mr Grant Russell Christoff is a Landscaper, and holds a Structural Landscaping (Trade) Licence.
  2. [2]
    The Queensland Building and Construction Commission (“QBCC”) issued a Direction to Rectify and/or Complete No. 39575 to him, directing him to rectify work at a site at 5 Rosemount Place, Gladstone, as follows:

The paving around the pool and the adjacent retaining wall have not been installed and finished to an acceptable industry standard. The grout used in the joints of the pavers is cracked and falling out and the retaining wall has exposed footings and grout smeared up the block work leaving an unsightly appearance.

  1. [3]
    The QBCC carried out an inspection of rectification work conducted by Mr Christoff on 29 January 2014 and determined that he had failed to comply with the Direction for the following reasons:
    1. (a)
      An attempt had been made to re-grout the paving around the swimming pool and clean the excess grout from the retaining wall however this has been unsuccessful and the pavers are now smeared with excess grout which has not been properly cleaned off after application.
    2. (b)
      The licensee has left some grind marks on the adjacent pavers and the concrete remains exposed and roughly finished.
  2. [4]
    The QBCC issued Mr Christoff with a Notice of Proposed Disciplinary Action on 15 January 2016.
  3. [5]
    On 31 March 2016 the QBCC gave Mr Christoff a Notice of Decision to take Disciplinary Action. In that Notice the QBCC found:

6) The Commission understands that the Work remains defective as it was never rectified.

7) The Commission therefore finds that the licensee failed to comply with a direction of the Commission, to rectify building work that was defective.

8) Pursuant to section 74F of the QBCC Act, the Commission finds the appropriate disciplinary action to take is:

8.1 Direct that you pay the Owner of the Property, Shane Ford, the amount of four thousand, eight hundred and seventeen dollars and fifty-four cents ($4,817.54) being an amount sufficient to rectify the defective work carried out by Grant Russell Christoff at the property; and

8.2 Direct that you pay a penalty to the Commission in the amount of two thousand, four hundred and twenty dollars ($2,420.00) (22 penalty units).

  1. [6]
    The QBCC gave notice by the decision that the amounts directed to be paid were to be paid by 31 May 2016.
  2. [7]
    Mr Christoff filed an Application for Leave to Appeal or Appeal in the Tribunal on 22 April 2016. The form of that Application was incorrect, as what Mr Christoff was actually seeking was a Review of the Decision of the QBCC of 31 March 2016. The Tribunal gave a direction on 28 April 2016 that the Application was transferred to the General Administration Review list, it was subsequently transferred on the 20 May 2016 to the Occupational Regulation list, and the matter has since proceeded as a Review of a disciplinary decision.
  3. [8]
    Directions were made on 1 September 2016 providing for filing of submissions on sanction and penalty by the QBCC and Mr Christoff, and for the review application to be determined on the papers not before 27 October 2016, on the following basis:

Upon Grant Christoff accepting there were proper grounds for the Queensland Building and Construction commission to take disciplinary action pursuant to section 74B(1)(j) of the Queensland Building and Construction Commission Act 1991.

  1. [9]
    Mr Christoff filed submissions on sanction and penalty on 28 September 2016. The QBCC filed submissions on penalty on 31 October 2016.
  2. [10]
    This is the decision on the Review of the disciplinary decision of the QBCC.

Review proceedings

  1. [11]
    The Tribunal may on a review of a reviewable decision[1]:
    1. (a)
      Confirm or amend the decision
    2. (b)
      Set aside the decision and substitute its own decision; or
    3. (c)
      Set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate.
  2. [12]
    The purpose of the review is to produce the correct and preferable decision, and the Tribunal decides by way of a fresh hearing on the merits[2].
  3. [13]
    It is commonly expressed that the Tribunal ‘stands in the shoes of the decision-maker’ and makes a fresh decision of the type that the decision-maker could have made.
  4. [14]
    In a disciplinary proceeding the Commission may take disciplinary action and impose sanctions as follows[3]:

74D Types of disciplinary action that may be taken

The types of disciplinary action the commission may take against a person are –

  1. (a)
    for defective or incomplete building work carried out by the person for a building owner – directing the person pay, within a stated period, the building owner an amount sufficient to rectify the work; or
  2. (b)
    for consequential damage caused by, or as a consequence of, building work carried out by the person – directing the person pay, within a stated period, the owner of the residence affected by the consequential damage an amount sufficient to remedy the damage; or
  3. (c)
    directing the person to pay, within a stated period, compensation to someone else who has suffered loss or damage because of the act or omission that resulted in the disciplinary action; or
  4. (d)
    imposing a penalty on the person of not more than –
    1. for an individual – an amount equivalent to 200 penalty units; or
    2. for a corporation – an amount equivalent to 1000 penalty units; or
  5. (e)
    if the person is a licensee –
    1. reprimanding the licensee; or
    2. suspending the licence; or
    3. imposing conditions on the licence; or
    4. cancelling the licence.

History of the Matter

  1. [15]
    Mr Christoff provided a quotation in the amount of $13,031.48 to Mr Shane  Ford on 8 July 2012 for the removal and reconstruction of a retaining wall and pool paving at 5 Rosemount Place, Gladstone.
  2. [16]
    Mr Ford accepted the quotation and paid a deposit of $2,000.00 on or about 1 November 2012.
  3. [17]
    The works were commenced by Mr Christoff on or about 1 November 2012, and were completed on or about 21 November 2012. Mr Christoff paid the total of $13,325.18 for the works.
  4. [18]
    Mr Christoff complained to the QBCC on or about 1 March 2013, and an inspection was conducted by Mr Wright, a QBCC Inspector, on 10 May 2013. A re-inspection was conducted by Mr Wright on 16 September 2013.
  5. [19]
    The Direction to Rectify was subsequently issued on 12 November 2013.
  6. [20]
    The QBCC issued an infringement notice as a consequence of Mr Christoff’s failure to comply with the Direction on 26 February 2014 in the amount of $2,200.00. The infringement notice was withdrawn on 7 March 2014 after Mr Christoff sent a court election.

QBCC Submissions

  1. [21]
    The QBCC submits that the purpose of disciplinary proceedings is to protect the public and maintain standards.
  2. [22]
    The QBCC referred to three decisions as comparatives.
  3. [23]
    In Queensland Building Services Authority v Ward Construction Pty Ltd[4] the Authority had expended approximately $65,000.00 from the home warranty insurance scheme to rectify the defective work. The builder had paid $57,250.00 to the Authority. The builder alleged that the owner had denied it access, and that the actions of the Authority had exacerbated the financial costs.
  4. [24]
    The Tribunal found in Ward that there were two directions that had not been complied with, and imposed a fine of $3,000.00 in each case, making a total of $6,000.00. Costs were also awarded to the Authority in the amount of $500.00.
  5. [25]
    In Queensland Building Services Authority v Dinstarr Developments Pty Ltd[5] the builder tried to rectify six problems relating to defective roof and guttering work, but the attempts were unsuccessful. The cost of rectification is not disclosed in the judgment. The Tribunal imposed a penalty of $3,000.00.
  6. [26]
    In Queensland Building and Construction Commission v D Block Constructions Pty Ltd[6]  the rectification work related to six items totalling $4,881.20. The tribunal placed weight on the failure of the builder to make an attempt to rectify, despite its promise to do so. The Tribunal imposed a fine of $3,850.00, and awarded costs of $1,500.00. It noted:

[21]  To deter broken promises to consumers and help protect the public invokes a greater sanction than the $3,000.00 for each direction in Ward. Public confidence in the industry is paramount.

[22]  $3,000.00 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.

[23]  The appropriate penalty is therefore $3,850.00.

  1. [27]
    The QBCC acknowledged that Mr Christoff had[7]:
    1. Made attempts to rectify the pavers at the property;
    2. Conceded that there were proper grounds for disciplinary actions; and
    3. Had no previous history of being issued with direction or to rectify or non-compliance with the QBCC Act;

but submitted that:

the penalty to be imposed by the Tribunal against the Applicant ought to act as a significant enough of a deterrent to ensure that the Applicant and others do not contemplate similar breaches within the industry or contemplate refusing to comply with direction issued pursuant to the QBCC Act.

  1. [28]
    The QBCC submits that the amount of $2,422.00 ‘is an appropriate penalty in the circumstances taking into account the Applicant’s attempts at rectification and so as to support integrity of the regulatory scheme’.[8] 
  2. [29]
    The QBCC submitted that Mr Christoff’s submissions[9] conceded that the works identified in the Direction were not up to standard but were mitigated by the fact that the owners of the property had wanted the works done in a particular way which resulted in the problem.
  3. [30]
    The QBCC submitted that restitution should be ordered as [10]

40. The Applicant has conceded that whilst he acted upon the purported instructions from the owners, the works were of poor quality. On that basis, the Tribunal should be minded to order that the Owners of the property are entitled to restitution for the reasonable cost of rectifying defects as per the scope of works dated 17 December 2015.

41. On that basis, it is appropriate that the Tribunal orders that the Applicant pay the owners of the property the amount of $4,817.54 being an amount sufficient to rectify the defective works.

Mr Christoff submissions

  1. [31]
    Mr Christoff submitted as to sanction that his business was a small one operated basically by himself with hired labour on special occasions, and that as a result of the Mining Industry downturn in the Central Queensland area that work for landscapers had been greatly reduced.
  2. [32]
    He submitted as to the amount of the penalty that[11]:

3) The imposition of a penalty of $2,420.00 is onerous on myself and my family.

4) My wife has recently undergone a major kidney/pancreas transplant and her capability of working is reduced. Whilst the operation was not paid for by myself, the ongoing Chemist accounts will be in excess of $250.00 per month and will continue throughout her life-time.

5) Accordingly I would request that there be a reduction in the amount of penalty that has been imposed.

  1. [33]
    Mr Christoff submitted as to restitution that:

6) Concede that the work was not up to standard but this was assisted by the fact that the clients had wanted the work done in a particular way which resulted in the problem.

7) Though I returned to their residence on numerous occasions and tried to rectify the problem, I was unsuccessful in reaching the standard the QBCC had held to be the norm.

8) Accordingly I believe that as the owners contributed to the problem, the restitution should reduced.

Discussion

  1. [34]
    Mr Christoff has conceded that there were proper grounds for QBCC to take disciplinary action. The only issues to be determined are as to penalty and rectification costs. The QBCC has not made any claim for costs.
  2. [35]
    The issue as to rectification costs is clear-cut. Mr Christoff has not challenged the scope of works to rectify, or the quantum of the scope of works. The matters he refers to in relation to the state of his business and personal medical costs are matters which may be considered as to penalty, but are not relevant as to rectification costs.
  3. [36]
    Mr Christoff has not challenged the rectification costs identified by the QBCC. An order to pay an amount sufficient to rectify the work may be made under s 74D(a).
  4. [37]
    Mr Christoff has been paid in full for the work under the contract, but part of that work is conceded to be defective. It is appropriate that the owners should be able to recover the cost of rectification without needing to have resort to separate proceedings in this case, where the defective work is conceded. An order for rectification costs in the amount identified by the QBCC of $4,817.54 therefore should be made.
  5. [38]
    The issue as to penalty is not straight-forward. The QBCC determined a penalty of $2,420.00 (or 22 penalty units) as being appropriate
  6. [39]
    The cases referred to by the QBCC seem to suggest that a penalty of the order of $3,000.00 for a failure to comply with a Direction has been seen as an appropriate amount. The QBCC found that a lesser amount was appropriate in this matter.
  7. [40]
    The assessment of the amount of a penalty is made by taking into account previous decisions, and the circumstances of each matter. No two matters are identical, and the surrounding circumstances are to be taken to account, including any mitigating factors.
  8. [41]
    In this matter, Mr Christoff says that the work complained of was not initially to be done, but that the owners requested him to grout the pavers in the course of the work, which was not previously intended. Once Mr Christoff undertook the work however, he had an obligation to do so in a proper manner, notwithstanding the previous arrangements.
  9. [42]
    Mr Christoff did attempt to remedy the defects, but was unsuccessful in doing so. He did not simply walk away from the job, or refuse to recognise the defects.
  10. [43]
    Mr Christoff has been required to participate in the formal proceedings in the Tribunal. It is apparent that he has had difficulty in identifying the proper procedure, and his filings show a level of unfamiliarity and frustration on his part. There is no indication that he has had the benefit of legal advice.
  11. [44]
    Whilst the cost of rectification is not a determinative factor, it is notable that the case of Ward involved a rectification cost of $57,250.00. The only case that involved a similar quantum as this matter was D Block Constructions Pty Ltd, but in that case there was a complete failure to attempt to remedy by the builder, and the Tribunal considered that a deterrent was required.
  12. [45]
    The amount of the fine decided by the QBCC is almost half the cost of rectification. Whilst this is not determinative, it is a factor to bear in mind as to a penalty, whilst still acknowledging that the purpose of a penalty has been held to be to set standards and to act as a deterrent.
  13. [46]
    In determining the amount of a penalty, courts and Tribunals will also have regard to any delay. In this matter, a period of about one and a quarter years passed before the commencement of the disciplinary proceedings. The defective work was performed about four and a half years ago. This delay is a factor that is to be considered as to penalty, as this matter has now been ‘hanging over the head of Mr Christoff’ for a long time, with consequent uncertainty and worry.
  14. [47]
    Mr Christoff has indicated that his business is in a difficult trading environment, and he has had significant personal worry and expense due to his wife’s medical condition. These are factors to take into account in mitigation of penalty.
  15. [48]
    Mr Christoff will be required to pay the restitution amount in addition to any penalty.
  16. [49]
    Taking into account the amount of the rectification cost, the delay, the attempt by Mr Christoff to remedy the defects, and his personal situation, I consider that a penalty, markedly lower than those imposed in the cases referred to, should be imposed.
  17. [50]
    I have given consideration to the imposition of a reprimand, but am mindful of the prior decisions which provide that a penalty is to set a standard. A fine of some significance should therefore be imposed.
  18. [51]
    I consider that the fine determined by the QBCC is excessive having regard to the factors I have discussed, and that an appropriate fine, which  recognises the failure to comply with the standard expected of a licensee, but which recognises the circumstances of the matter, is 10 penalty units or $1,100.00.
  19. [52]
    I order that Mr Christoff pay to the QBCC a penalty fixed in the amount of $1,100.00; and pay to Mr Ford the amount of $4,817.54 to rectify the defective building work.

Footnotes

[1]QCAT Act, s 24.

[2]QCAT Act, s 20.

[3]QBCC Act, s 74D.

[4][2011] QCAT 289.

[5][2012] QCAT 413.

[6][2015] QCAT 62.

[7]QBCC Submissions filed 31 October 2016, para 31.

[8]QBCC Submissions filed 31 October 2016, para 32.

[9]QBCC Submissions filed 31 October 2016, para 37.

[10]QBCC Submissions filed 31 October 2016, para 40.

[11]Submissions by Grant Christoff filed 28 September 2016.

Close

Editorial Notes

  • Published Case Name:

    Christoff v Queensland Building and Construction Commission

  • Shortened Case Name:

    Christoff v Queensland Building and Construction Commission

  • MNC:

    [2017] QCAT 210

  • Court:

    QCAT

  • Judge(s):

    Member Paratz

  • Date:

    16 Jun 2017

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 and Construction Commission v D Block Constructions Pty Ltd [2015] QCAT 62
2 citations
Jump To
Cite 1 - [2015] QCAT 62
Cite 2 - [2015] QCAT 62
Queensland Building Services Authority v Dinstarr Developments Pty Ltd [2012] QCAT 413
2 citations
Jump To
Cite 1 - [2012] QCAT 413
Cite 2 - [2012] QCAT 413
Queensland Building Services Authority v Ward Construction Pty Ltd [2011] QCAT 289
2 citations
Jump To
Cite 1 - [2011] QCAT 289
Cite 2 - [2011] QCAT 289

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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