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Berthelsen v Queensland Building and Construction Commission[2018] QCAT 400

Berthelsen v Queensland Building and Construction Commission[2018] QCAT 400

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Berthelsen & Anor v Queensland Building and Construction Commission [2018] QCAT 400

PARTIES:

KAILEN BERTHELSEN

(first applicant)

IDC DEVELOPMENTS PTY LTD

(second applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

OCR110-15

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

26 November 2018

HEARING DATE:

24 October 2018

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

The decisions of the Queensland Building and Construction Commission of 13 July 2015 to cancel the licences of the applicants are set aside.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – LICENCES AND REGISTRATION – OTHER MATTERS – where licensee made false declarations about prior criminal convictions – where individual and corporate licences cancelled – where application for review dismissed but set aside on appeal – where second review proceedings – where 10 year criminal rehabilitation period occurred prior to second review – where making false declarations remain relevant however – where contractor’s carelessness raised as an issue of concern – where additional issues raised about the contractor’s fitness from material relied on by contractor – where late payment of suppliers and other contractors – where late payment of insurance premiums – where contractor completed Commissioner for Declarations course

Queensland Building and Construction Commission Act 1991 (Qld), s 31, s 32(1)(g), s 32AA(1)(d), s 48(1)

Criminal Law (Rehabilitation Of Offenders) Act 1986 (Qld), s 9

Alford v Auctioneers and Agents Committee [2002] QDC 130

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

Hughes & Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127

Laidlaw v Queensland Building Services Authority [2010] QCAT 70

QBCC v Bloomfield [2015] QCATA 19

APPEARANCES & REPRESENTATION:

 

Applicants:

S Taylor, instructed by Crouch and Lindon

Respondent:

M Robinson, solicitor of Robinson Locke Litigation Lawyers

REASONS FOR DECISION

  1. [1]
    On 13 July 2015 the Queensland Building and Construction Commission (‘QBCC’) cancelled Mr Berthelsen’s contractor’s licence on the basis that he was not a fit and proper person to hold a licence. On that same day QBCC also cancelled the corporate contractor’s licence of IDC Developments Pty Ltd (‘IDC’) of which Mr Berthelsen was director and nominee.
  2. [2]
    Mr Berthelsen applied to the Tribunal to review both of those decisions. The review hearing (the first hearing) was conducted in Bundaberg on 27 April 2016 but the application dismissed.
  3. [3]
    Mr Berthelsen successfully appealed that decision to the Appeal Tribunal. The Appeal Tribunal ordered his application for review be returned to the Tribunal for reconsideration. That reconsideration is the matter presently before the Tribunal (the second hearing).

Background

  1. [4]
    On 12 November 2013 Mr Berthelsen lodged an application with the QBCC for a contractor’s licence in a number of classes. In the application he declared ‘no’ to a question asking whether he had been convicted of any criminal offence (excluding traffic offences) within the last 10 years.
  2. [5]
    With respect to his company IDC, in May 2014 he applied for a corporate contractor’s licence and similarly answered no to a question whether any director, office holder, major shareholder, nominee or person of influence had been convicted of any criminal offence within the last 10 years.
  3. [6]
    On 24 December 2013 Mr Berthelsen was granted the additional licence class of Builder – Low Rise at Site Supervisor grade and on 13 November 2014 he was approved to change his existing contractor’s grade licence class to Nominee Supervisor grade.
  4. [7]
    In fact, contrary to the declarations made, he had been convicted in the District Court at Bundaberg on 26 June 2008 of various offences and been sentenced to 9 months imprisonment wholly suspended for an operational period of two years.
  5. [8]
    QBCC became aware of the false declarations. QBCC informed Mr Berthelsen it proposed to cancel his licenses on the basis that he was not a fit and proper person to hold them because he knowingly provided false or misleading information when making his declarations for the purpose of obtaining licenses.
  6. [9]
    Despite his representations, Mr Berthelsen’s licences were cancelled by QBCC. He then brought his application for review in the Tribunal.

Additional Issues

  1. [10]
    At the first hearing a number of additional issues arose consequent on material presented by Mr Berthelsen. QBCC submitted this new material supported their submission that he was not a fit and proper person to hold a contractor’s licence (nor IDC, with him as director or nominee).
  2. [11]
    Similarly at the second hearing QBCC say Mr Berthelsen has supplied further material which raises further issues about his fitness.

The Entitlement to a Licence – The Statutory Scheme

  1. [12]
    Section 31 of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) provides:
  1. (1)
    A person (not being a company) is entitled to a contractor’s licence if the commission is, on application by that person, satisfied that—
  1. (a)
    the applicant is a fit and proper person to hold the licence;

…

  1. (2)
    A company is entitled to a contractor’s licence if the commission is satisfied, on application by that company for a licence, that—
  1. (a)
    the directors, secretary and influential persons for the company are fit and proper persons to exercise control or influence over a company that holds a contractor’s licence;

…

  1. (3)
    In deciding whether a particular person is a fit and proper person to hold a contractor’s licence or to exercise control or influence over a company that holds a contractor’s licence, the commission may have regard to—
  1. (a)
    commercial and other dealings in which that person has been involved and the standard of honesty and integrity demonstrated in those dealings; and
  1. (b)
    any failure by that person to carry out commercial or statutory obligations and the reasons for the failure; and

…

(ca) if the person is an enforcement debtor under an enforcement order for an infringement notice offence for this Act—whether the person has taken steps under the State Penalties Enforcement Act 1999 to discharge the amount stated in the enforcement order; and

  1. (d)
    any other relevant factor.
  1. [13]
    By s 32(1)(g):

Entitlement to a nominee supervisor’s licence

  1. (1)
    An individual is entitled to a nominee supervisor’s licence if the commission is, on application by the individual, satisfied that—

…

  1. (g)
     the applicant is a fit and proper person to hold the licence.
  1. [14]
    By s 32AA(1)(d):

Entitlement to a site supervisor’s licence

  1. (1)
    An individual is entitled to a site supervisor’s licence if the commission is, on application by the individual, satisfied that—

…

  1. (d)
    the applicant is a fit and proper person to hold the licence.
  1. [15]
    By s 48(1):
  1. (1)
    The commission may suspend or cancel a licence if—
  1. (a)
    the licence was obtained on the basis of incorrect information supplied to the commission, whether or not fraud was intended; or

…

  1. (c)
    the licensee is convicted of an indictable offence or an offence that, if committed in Queensland, would be an indictable offence;

…

  1. (j)
    the commission becomes aware of the existence of facts that, having regard to section 31(1)(a) or (2)(a), or 32(1)(g), or 32AA(1)(d), or 32AB(1)(d)—
  1. (i)
    would allow the commission to refuse to issue the licence if it were now being applied for by the licensee; or
  1. (ii)
    would have allowed the commission to refuse to issue the licence originally.

Past Indictable Offences

  1. [16]
    Mr Berthelsen was convicted of indictable offences in the District Court at Bundaberg on 26 July 2008. A sentence of imprisonment for two years wholly suspended was imposed. At the time of the offence he was 17 years old and 18 when sentenced. When he applied for the contractors’ licenses in 2013 and 2014, in answering no to the question whether he had been convicted of any criminal offences within the last 10 years, he was therefore misleading the QBCC.
  2. [17]
    As at the date of the second hearing more than 10 years had elapsed since the convictions and accordingly, pursuant to the Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld), for the purpose of assessing whether Mr Berthelsen was a fit and proper person to hold a licence the actual convictions must be disregarded.[1]
  3. [18]
    However the false declarations made in 2013 and 2014 which misled the QBCC remain relevant in determining Mr Berthelsen’s fitness to be a contractor.

Fit and Proper Person

  1. [19]
    Whether or not a licence should be cancelled is said to involve a two-step process.[2] First there must be a qualifying occurrence under s 48 of the QBCC Act.
  2. [20]
    Here, with the convictions brought to light the QBCC has become aware of the existence of facts which would have allowed it to refuse to issue the licence originally, namely that Mr Berthelsen was not a person who is fit and proper to hold a licence. QBCC say just that.
  3. [21]
    Then, if it is determined that he is not a fit and proper person, there is still a discretion to be exercised as to whether or not the licence should be cancelled.
  4. [22]
    There is no suggestion that Mr Berthelsen does not have the necessary trade qualifications, nor is his standard of building work an issue.
  5. [23]
    The Tribunal on review must make the ‘correct and preferable’ decision by way of a fresh hearing on the merits.[3] The Tribunal may confirm or amend the cancellation. The Tribunal may set aside the decision and substitute its own. The Tribunal may set the decision aside and return the matter for reconsideration by QBCC with such directions as the Tribunal deems appropriate.
  6. [24]
    Given the inquisitorial nature of administrative review as opposed to adversarial, there is no onus of proof on a party as explained in Laidlaw v Queensland Building Services Authority:[4]

[23] Consideration has been given to the issue of onus in merits review proceedings in the federal arena before the Administrative Appeals Tribunal, where similarly the AAT Act does not deal with the issue of onus of proof. Generally there is no onus. However, practically, a party will want to adduce evidence which supports the party’s case, since the Tribunal can only make its decision on the material before it. In the absence of appropriate evidence the Tribunal will not be free to make the decision sought by the party. This has sometimes been described as an evidentiary burden, but there is no formal onus of proof. The question is whether the Tribunal is satisfied that the provision under consideration can be invoked on the information or material before it.

 

[24] To my mind, for similar reasons there will generally be no onus in matters in the review jurisdiction considered by QCAT… (citations omitted)

  1. [25]
    A notable statement of the law as to whether a person is fit and proper is that given in the High Court matter of Hughes & Vale Pty Ltd v New South Wales (No 2) which was conveniently explained by Mc Gill DCJ in  Alford v Auctioneers and Agents Committee:[5]

[5] The concept of fitness and propriety is a broad one. It has been said that the very purpose of the expression is to give the widest scope for judgment and indeed for rejection, and that fitness for something involves honesty, knowledge of what is required of a person in such a position, and the ability or capacity to do what is required, in terms of physical, mental and financial capacity: Hughes & Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127 at 156-7 per Dixon CJ, McTiernan and Webb JJ.

  1. [26]
    Toohey and Gaudron JJ said in Australian Broadcasting Tribunal v Bond[6] that the phrase ‘fit and proper person’:

... takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.

  1. [27]
    The QBCC Act states that in deciding whether someone is a fit and proper person to hold a licence the QBCC may take into account a number of factors[7] including commercial and other dealings in which the applicant has been involved and the standard of honesty and integrity demonstrated in those dealings; any failure by the person to carry out commercial or statutory obligations and the reasons for the failure; and if the person is an enforcement debtor under an enforcement order for an infringement notice offence for the QBCC Act, whether the person has taken steps for payment pursuant to the State Penalties Enforcement Act 1999 (Qld) (‘SPER Act’) and any other relevant factor.
  2. [28]
    Amongst ‘other relevant factors’ appropriately to be considered will be the purpose and objects of the QBCC Act which will determine the scope and context of how someone is a fit and proper person to be a contractor. The purpose and objects of the QBCC Act includes the regulation of the building industry to ensure the maintenance of proper standards in the industry and achieving a reasonable balance between the interests of building contractors and consumers.[8]

The Evidence at the First hearing

  1. [29]
    The appeal Tribunal set aside the decision of the Tribunal made at the first hearing and ordered that the proceeding be reconsidered with the possibility of additional evidence being led.
  2. [30]
    Reconsideration requires consideration of the evidence given at the first hearing and any additional evidence or material produced at the second hearing.
  3. [31]
    At the first hearing Mr Berthelsen admitted he had made a mistake completing the declaration in his applications to the QBCC. He said it was not a case of forgetting about the convictions. He believed at the time that he had no convictions recorded against him.[9] He said the same thing at various times during cross examination and was consistent in that stance.[10]
  4. [32]
    He admitted he made similar false declarations about his convictions in his Passport and Visa applications but similarly said he believed at the time that he had no recorded convictions.
  5. [33]
    He committed an offence when he failed to pay a building contract insurance premium, but he said it was his first contract as principal and he was not aware that it was compulsory to pay insurance. He said he hadn’t been taught that in any training he had done up to that point in time.[11]
  6. [34]
    In consequence he had been issued with an infringement notice. That had been in January 2015, the same month that his pregnant wife found out she would not be delivering a healthy child. His wife required surgery and then four weeks later emergency surgery. That news, he said, had devastated both of them and his failure to pay was simply an oversight. This had been a very difficult time. He had instructed someone else to manage things whilst he and his wife took time off.[12]
  7. [35]
    He said he paid the fine but through SPER. At the time he had not been aware that SPER paid out funds on a first-in first-out basis which meant that the monies he was paying in went initially to pay for outstanding traffic fines. He said, however, as at the date of filing his statement of evidence in the Tribunal in the first hearing there was nothing outstanding on his SPER account meaning he had paid off the QBCC fine.
  8. [36]
    Further he said the SPER payment system was an automatic process that came into being when he didn’t pay the fine on time. He said if it hadn’t automatically gone to SPER he would have paid it in full, if late.
  9. [37]
    There were other matters as well.  In the original application for a company licence for IDC on 25 May 2014 Mr Berthelsen declared[13] that IDC had at least $18,000 net tangible assets. That was a financial requirement for licensing. A subsequent financial document produced however showed the total equity in IDC that year to be $20.
  10. [38]
    Mr Berthelsen said the accounts concerned did not reflect the true asset position of the company. He believed at the time he made the declaration that his personal assets could be considered as assets of the company.[14] As at 30 June 2014 he had more than $18,000 in his personal account.[15] In October 2014 he completed a Covenantor’s Statement of Financial Position document deposing to him having cash assets as at 9 October 2014 of $65,799 and equity in his home of $165,799.
  11. [39]
    The incongruence of Mr Berthelsen having cash assets of $65,799 but utilising SPER to pay the QBCC fine was an issue raised by QBCC.
  12. [40]
    Another issue was the IDC website and IDC being described as a ‘Designer Builder – Real Estate Developer’. A designer’s licence is a particular licence type and neither Mr Berthelsen nor IDC held it at the time. Mr Berthelsen said all he intended to convey by ‘Designer Builder’ was that IDC was a builder of designed homes rather than repetitive speculative style homes.[16]
  13. [41]
    Finally QBCC had also raised with him the accuracy of some draft financial records of IDC as at 15 September 2015. When it was raised with him, but not before it was raised with him, Mr Berthelsen amended his financial records.

Stay Evidence

  1. [42]
    Then there was Mr Berthelsen’s application to the Tribunal seeking a stay of the first QBCC decision cancelling his licenses. Mr Berthelsen filed a statement of evidence in those proceedings deposing to IDC employing six employees including two apprentices, all relying on him.[17] In financial documents however there were no employee expenses noted for the relevant time. Subsequently Mr Berthelsen filed a further statement of evidence[18] clarifying that the employees referred to were engaged by IDC on a contract basis only. He said those contractors were paid all entitlements by IDC and they worked primarily under the engagement with IDC. With respect to the apprentices, he said they have been employed by IDC Tiling, a related family ‘trust venture’. They had completed their apprenticeships in November 2015. He had seen little benefit in transferring the apprentices to IDC for the remaining few months of their apprenticeship.

Evidence at the Second Hearing

  1. [43]
    QBCC put to Mr Berthelsen that there had been a number of complaints made to QBCC about IDC owing money to both suppliers and other contractors. Mr Berthelsen said he was aware that the Minimum Financial Requirements policy required contractors to pay debts as and when debts fall due and within industry trading terms.
  2. [44]
    There had been a complaint by Bunnings about monies being due and unpaid. Bunnings had sued in the District Court on 8 December 2017 but the action had been discontinued later that month. He said his brother, who worked for him, had been using a (company) credit card and the debt was incurred without his knowledge. Requests for payment had gone to the wrong address but once he knew about it he had paid immediately.
  3. [45]
    On 28 November 2017 there had been a monies owed complaint from the building product supplier Metroll. It claimed $901.50 was outstanding. QBCC issued a show cause notice and subsequently on 15 February 2018 Metroll informed QBCC they had been paid. Mr Berthelsen said products had been purchased from Metroll without his permission and put on his account without notice to him. At the time Metroll was not a regular supplier.
  4. [46]
    On 9 February 2015 QBCC received a complaint from Solid State Security Pty Ltd advising that $55,000 was owed and payment due by 31 December 2016. Mr Berthelsen said the parties had subsequently agreed on terms of payment.
  5. [47]
    On 17 May 2017 a judgment had been entered in favour of PJ and JR Phillips Pty Ltd for $27,832 in the Magistrates Court at Bundaberg. Mr Berthelsen said he had not been advised of a complaint to the QBCC by that company but in any case that had been resolved and monies outstanding had been paid but not until after the judgment had been set aside.
  6. [48]
    Finally on 23 August 2018 there had been a judgment given in a Magistrates Court in Victoria in favour of Realestate.com.au Pty Ltd for $7,700. Mr Berthelsen said he was away overseas at the time which was why the judgment was entered. His employee responsible for such things had been away on maternity leave at the time. This was supposed to have been only a 3 month engagement and the creditor continued charging after that without Mr Berthelsen’s approval. He disputed the entire amount and the judgement was currently being set aside. He had paid for the agreed 3 months.
  7. [49]
    QBCC also raised an issue about IDC’s lack of timely notice and payment of insurance premiums. Mr Berthelsen said he was aware of the requirement to pay the statutory home warranty insurance premium on time but understood that to mean it had to be lodged as soon as practicable.
  8. [50]
    There were three instances raised by QBCC. Mr Berthelsen said he generally did not ask for a deposit on signing a contract and most of his contracts were subject to finance so the contracts were not ‘effective’ until finance was approved and only then was a deposit sought and paid. Once that happened he paid the insurance premium immediately.
  9. [51]
    In respect of three such instances raised by QBCC, one contract was paid 14 days late, the second 20 days late and the third 31 days late.
  10. [52]
    It was put to Mr Berthelsen that there was a requirement that notification and payment of the insurance premium be made within 10 days of contract. Mr Berthelsen pointed out that it was only a new requirement and he had not been aware of the change at the time.
  11. [53]
    The QBCC also referred to some shortfalls with respect to compliance with taxation requirements. There had been late payment of BAS on two occasions. There was a late lodgement fee levied on one occasion. Mr Berthelsen said that had been paid. With respect to BAS for June 2018, although the statement had not been lodged until some date in July or August 2018, all the necessary information had been provided by him to his accountants before the due time. As at the date of hearing payment of the September BAS statement had not yet fallen due.
  12. [54]
    There were some minor issues with respect to superannuation but Mr Berthelsen said all had been resolved as at date of hearing. Similarly with respect to compliance with the Minimum Financial Requirements policy of QBCC.
  13. [55]
    Finally, Mr Berthelsen said in January or February 2018 he had completed the technical content part of a Commissioner for Declarations course. He had not completed the practical matter of witnessing documents but had passed the technical part of the course. He also said he would supply the Tribunal with a copy of written evidence confirming that. Mr Robinson for QBCC said evidence about that would go a long way to showing redemption on his part.

Consideration

  1. [56]
    As previously stated, there is no issue raised about Mr Berthelsen having the necessary trade skills.
  2. [57]
    Mr Berthelsen says he has learned a great deal over the period of the reviews before QCAT. He had not appreciated the significance of signing documents and the significance of making declarations as to the accuracy of information. However he maintains it is important to understand that at no time did he ever intend to mislead. I note his evidence about that was consistent throughout both review hearings. He believed at the time he made the relevant declarations that he had no convictions recorded against his name. He consistently acknowledged the guilty plea at the first hearing but believed no convictions had been recorded. There was no evidence of intent to mislead. I accept that at the time he made the declarations he held the belief asserted.
  3. [58]
    As conceded by Mr Robinson, the false declarations was the linchpin upon which the issue of not being a fit and proper person to hold a contractor’s licence initially turned, and with the passage of time that issue has lost much of its significance. Those declarations were made respectively 4 and 5 years ago and the time to consider whether Mr Berthelsen is fit and proper to hold a contractor’s licence is at the present time.
  4. [59]
    Mr Robinson for QBCC submits however that the evidence suggests Mr Berthelsen is careless. That lack of care extends to carelessness in swearing statutory declarations. His carelessness most recently extended to his adopting and declaring as true, inaccurate financial records. He showed a general preparedness to ‘gloss’ over important documents and not be bothered reading them carefully.[19] It was only when inaccuracies were brought to his attention that he took steps to make corrections and to be accurate.
  5. [60]
    It is not entirely clear that there is one particular sense in which it is suggested Mr Berthelsen is careless. There are different ways of being careless. There is impulsiveness. There is a careless disregard of consequences. There is lack of thought brought to bear about an issue that most people would give some considered thought to. What must be necessary for carelessness to disqualify Mr Berthelsen from being a fit and proper person to be a contractor must, one would think, be such as to show a habit of carelessness.
  6. [61]
    Most of the issues now suggested to be evidence against his being a fit and proper person are not matters of great significance taken individually. Mr Taylor for Mr Berthelsen submits it is not sufficient to find someone not fit and proper simply because they lack care and attention to detail. But that must depend surely on the extent to which and if lack of care and attention affects a contractor’s ability to perform the work required and expected of a contractor.
  7. [62]
    QBCC point to Mr Berthelsen being an enforcement debtor under an enforcement order for an infringement notice offence for the QBCC Act. Mr Berthelsen says he has paid it off by paying out his SPER debt. There is no contradictory evidence to disprove that claim.  There may well be a hiatus between payment to SPER by the judgment debtor and SPER paying the judgement creditor. I accept his evidence that the fine was levied at a time of great personal distress. I also accept that the matter was referred to SPER automatically because he had an existing SPER account and he did not pay the fine on time. Again there is no evidence to suggest that Mr Berthelsen is not telling the truth about that. There is no evidence to suggest that Mr Berthelsen chose the SPER method of payment because he could not afford to pay the fine outright. In result there is nothing of significant weight in that issue to be held against him being a fit and proper person to be a contractor. Carelessness is not an aspect of this issue.
  8. [63]
    The QBCC Act specifically provides that a person’s commercial and other dealings in which they have been involved and the standard of honesty and integrity demonstrated in those dealings is a factor to be considered in deciding whether someone is a fit and proper person to hold a contractor’s licence.
  9. [64]
    There is no definition of ‘commercial and other dealings’ in the Act however the various unpaid contractors’ claims would appear to be relevant matters falling for consideration under this heading.
  10. [65]
    There were 5 claims against IDC for money owing to other contractors or suppliers. One goes back to 2015, three arose in 2017 and there was one this year in 2018. Of those Mr Berthelsen attributes the Bunnings and Metroll debts to the failure of others in his company. He says he was not aware of those debts when incurred. It is not clear what the amount claimed by Bunnings was however the Metroll debt was minor, only $901.50.
  11. [66]
    The Realestate.com.au Pty Ltd claim was not elaborated upon but would likely, given the identity of the judgement creditor, be associated with online real estate advertising. His claim that that company exceeded the terms of its retainer by continuing a fixed term listing seems entirely possible.
  12. [67]
    The Solid State Security Pty Ltd debt was large. But that goes back 3 years and according to Mr Berthelsen the parties have reached an agreement about payment.
  13. [68]
    Finally there is the PJ and JR Phillips Pty Ltd claim. Mr Berthelsen said that that had been paid but not until what appears to have been a default decision entered had been set aside.
  14. [69]
    To my mind it is only the Solid State and PJ and JR Phillips claims that are potentially significant. With respect to these two creditor claims, there are no particulars of the claims to allow me to weigh the significance of the failure to pay. The Minimum Financial Requirements policy only requires all undisputed amounts to be paid, not all amounts claimed against a contractor. I note in respect of both claims Mr Berthelsen does admit money was owing because he says an agreement to pay has been struck with both creditors.
  15. [70]
    The Act also provides that any failure to carry out commercial or statutory obligations is relevant to the consideration of fitness.
  16. [71]
    There was an inconsistency between a financial document showing the total equity in IDC as at 2014 was $20 and a declaration made on 25 May 2014 to the effect that IDC had $18,000 net tangible assets, which was a financial requirement of licensing for the company. As at October 2014 Mr Berthelsen claimed cash assets of $65,799 and equity in his home of $165,799 and as at 30 June 2014 that he had more than $18,000 in his personal account. Mr Berthelsen thought his assets were available as company assets for the purpose of complying with the financial requirements for corporate licensing which I conclude displayed ignorance rather than carelessness on his part.
  17. [72]
    There were 2 instances of late lodgement of BAS statements and a late lodgement fee levied but according to Mr Berthelsen with respect to the June 2018 BAS statement all necessary information had been provided by him to his accountants before the due time. There is no suggestion however that Mr Berthelsen’s (IDC) current financial circumstances represents any risk of non-completion of building contracts. According to Mr Berthelsen as at the date of second hearing he has fully complied with QBCC’s Minimum Financial Requirements policy.
  18. [73]
    In assessing compliance with statutory obligations the late payment of statutory home warranty insurance premiums is relevant. Mr Berthelsen’s understanding of when to pay, that is as soon as practicable, was correct at least with respect to two out of the three contracts concerned. Not for the third however, by which time the requirement was payment within 10 business days after the date of contract or before the work started, whichever was earlier. In addition he was wrong about not having to pay until a contract was unconditional as to finance.  I conclude however that his failure to pay in respect of all three contracts was based on ignorance rather than intentional delay or careless disregard of requirements. There is no suggestion that subsequent contracts were not paid on time.
  19. [74]
    Nor is there any suggestion that Mr Berthelsen (or IDC) is currently in breach of any other of the Minimum Financial Requirements.
  20. [75]
    Similarly I conclude it was ignorance rather than intention to deceive (or carelessness) that led Mr Berthelsen to claim in his statement of evidence filed in support of the stay application that IDC had 6 employees including 2 apprentices.
  21. [76]
    What is a matter in Mr Berthelsen’s favour is his completion of the theoretical component of a Commissioner for Declarations course in January or February this year. After the second hearing he filed evidence of that pursuant to leave granted for that purpose. As Mr Robinson said at the second hearing, supplying that written confirmation would go a long way to evidencing his redemption.
  22. [77]
    To conclude, the most significant issue, the linchpin issue, of making false declarations, has been sufficiently explained to my satisfaction and the passage of time has in any case meant its significance has been much reduced, particularly with the completion of the Commissioner for Declarations course.
  23. [78]
    He has continued to work as a contractor without complaint save for late payment to some suppliers or other contractors, of which I have insufficient information to allow it to weigh overmuch against his fitness to be a contractor.
  24. [79]
    There is no significant failure to comply with taxation obligations and that issue, if there is an issue, appears to be in hand with the assistance of his accountants.
  25. [80]
    As previously stated, most of the issues raised against him being a fit and proper person are conceded as matters of no great significance taken individually, but collectively, it is submitted, they suggest a habit of carelessness. I am not convinced of that. I conclude they are not of great significance taken collectively either and do not evidence a habit of carelessness such that it would affect his ability to perform the work required and expected of a contractor.
  26. [81]
    I find that at the present time he is a fit and proper person to hold a contractor’s licence. 

Footnotes

[1]Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld), s 9.

[2]QBCC v Bloomfield [2015] QCATA 19, [6].

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

[4][2010] QCAT 70; and see Szbel v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63, [40].

[5][2002] QDC 130.

[6][1990] HCA 33; (1990) 170 CLR 321, 380.

[7]QBCC Act, s 31(3) for an applicant and s 32(2) for a nominee supervisor.

[8]QBCC Act, s 3.

[9]T1-30 L1-10 (similar evidence was given concerning the IDS declaration T1-31 L44).

[10]T1-30 L1-45; T1-31 L40-45; T1-53 L30; T1-62 L1-15.

[11]T1-33 L6.

[12]T1-33 L29-31.

[13]Ex 13 p 58.

[14]T1-38 L4-6.

[15]T1-64 L30.

[16]Exhibit 5, [18].

[17]Ibid [21].

[18]Exhibit 7.

[19]T1-59 L42.

Close

Editorial Notes

  • Published Case Name:

    Kailen Berthelsen & Anor v Queensland Building and Construction Commission

  • Shortened Case Name:

    Berthelsen v Queensland Building and Construction Commission

  • MNC:

    [2018] QCAT 400

  • Court:

    QCAT

  • Judge(s):

    Member Howe

  • Date:

    26 Nov 2018

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2016] QCAT 51712 Sep 2016Applications for review of two decisions of the Queensland Building & Construction Commission made 13 July 2015 (decisions to cancel Mr Berthelsen's licence and that of his company) dismissed; decisions confirmed: Member McLean Williams.
Primary Judgment[2016] QCATA 17111 Nov 2016Parties granted leave to be legally represented; decision dated 12 September 2016 stayed until further order: Senior Member Stilgoe OAM.
Primary Judgment[2017] QCATA 8204 Jul 2017Appeal allowed; decision dated 12 September 2016 set aside and proceeding returned to the Tribunal for reconsideration: Senior Member Stilgoe OAM and A/Senior Member Howard.
Primary Judgment[2018] QCAT 40026 Nov 2018Upon remit (see [2017] QCATA 182) two decisions of the Queensland Building & Construction Commission made 13 July 2015 (decisions to cancel Mr Berthelsen's licence and that of his company) set aside: Member Howe.
Notice of Appeal FiledFile Number: Appeal 7881/1702 Aug 2017-
Appeal Determined (QCA)Appeal 7881/17 (No Citation)16 Apr 2018Application dismissed: Sofronoff P and Gotterson and Morrison JJA.

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Alford v Auctioneers and Agents Committee [2002] QDC 130
2 citations
Jump To
Cite 1 - [2002] QDC 130
Cite 2 - [2002] QDC 130
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
2 citations
Jump To
Cite 1 - (1990) 170 CLR 321
Cite 2 - (1990) 170 CLR 321
Australian Broadcasting Tribunal v Bond (1990) HCA 33
2 citations
Jump To
Cite 1 - (1990) HCA 33
Cite 2 - (1990) HCA 33
Hughes & Vale Pty Ltd v State of New South Wales (No.2) [1955] HCA 28
2 citations
Jump To
Cite 1 - [1955] HCA 28
Cite 2 - [1955] HCA 28
Hughes & Vale Pty. Ltd. v New South Wales (No. 2) (1955) 93 CLR 127
2 citations
Jump To
Cite 1 - (1955) 93 CLR 127
Cite 2 - (1955) 93 CLR 127
Laidlaw v Queensland Building Services Authority [2010] QCAT 70
2 citations
Jump To
Cite 1 - [2010] QCAT 70
Cite 2 - [2010] QCAT 70
Queensland Building and Construction Commission v Bloomfield & Anor [2015] QCATA 19
2 citations
Jump To
Cite 1 - [2015] QCATA 19
Cite 2 - [2015] QCATA 19
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
1 citation
Jump To
Cite 1 - [2006] HCA 63

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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