TQM Design and Construct Pty Ltd v Department of Services Technology & Administration [2011] NSWADT 144

TQM Design and Construct Pty Ltd v Department of Services Technology & Administration [2011] NSWADT 144

TQM did not complete the rectification order by 9 March 2008. Although there was inclement weather, the delay was not reasonably attributable to it because the required planter box work could have been undertaken earlier and could have proceeded with a cover; TQM's late allocation of the work showed a relaxed attitude to compliance. TQM therefore lacked reasonable cause and was guilty of improper conduct, but because the work was completed by 12 May 2008, prejudice from the two-month delay was minimal, TQM acted in good faith, and the Cohen factors were mostly favourable, the $2,500 penalty was excessive and a caution was the appropriate sanction.

Jurisdiction
Australia
Judgment Date
10 June 2011
Procedural Posture
Application for Review of a Disciplinary Decision Under the Home Building Act 1989 / Review of Delegate's Decision Requiring the Applicant to Pay a $2,500 Penalty
Outcome
The decision under review was set aside and substituted with a caution to TQM Design and Construct Pty Ltd.
Legal Topics
['improper Conduct' 'rectification Order' 'failure to Comply Without Reasonable Cause' 'disciplinary Sanctions' 'home Building Act 1989']
['administrative Law' 'home Building Regulation' 'disciplinary Proceedings'] ['improper Conduct' 'rectification Order' 'failure to Comply Without Reasonable Cause' 'disciplinary Sanctions' 'home Building Act 1989']

Case Brief

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Procedural Posture

Application for Review of a Disciplinary Decision Under the Home Building Act 1989 / Review of Delegate's Decision Requiring the Applicant to Pay a $2,500 Penalty

Legal Issues

  1. 1 ['Whether TQM Design and Construct Pty Ltd failed, without reasonable cause, to comply with the rectification order by 9 March 2008.' 'Whether the inclement weather and moisture conditions provided reasonable cause for delay in completing the rectification works.' 'What disciplinary action, if any, was appropriate under section 62 of the Home Building Act 1989.']

Ratio Decidendi

TQM did not complete the rectification order by 9 March 2008. Although there was inclement weather, the delay was not reasonably attributable to it because the required planter box work could have been undertaken earlier and could have proceeded with a cover; TQM's late allocation of the work showed a relaxed attitude to compliance. TQM therefore lacked reasonable cause and was guilty of improper conduct, but because the work was completed by 12 May 2008, prejudice from the two-month delay was minimal, TQM acted in good faith, and the Cohen factors were mostly favourable, the $2,500 penalty was excessive and a caution was the appropriate sanction.

Court Disposition

The decision under review was set aside and substituted with a caution to TQM Design and Construct Pty Ltd.

Orders

  • ['The decision under review is set aside, and in substitution for that decision TQM Design and Construct Pty Ltd is to be issued with a caution in respect of improper conduct in relation to work carried out at 174 Victoria Road, Bellevue Hill.']