Knuth v Bailey [2017] QDC 285 (30 November 2017)

Last Updated: 5 December 2017

DISTRICT COURT OF QUEENSLAND

CITATION:	Knuth v Bailey [2017] QDC 285
PARTIES:	JEFFERY ALAN KNUTH (appellant) v MARK BAILEY (respondent)
FILE NO/S:	MAG 0001317/2015; D346/2016
DIVISION:
PROCEEDING:	Criminal appeal
ORIGINATING COURT:	Magistrates Court at Townsville
DELIVERED ON:	30 November 2017
DELIVERED AT:	Brisbane
HEARING DATE:	9 June 2017
JUDGE:	McGill DCJ
ORDER:	Appeal Dismissed
CATCHWORDS:	BUILDING AND ENGINEERING CONTRACTS – Performance of work – licencing – whether contract made – whether unlicensed building work – whether procedural requirements satisfied – offences committed. Queensland Building and Construction Commission Act 1991 ss 42, 54, 56, 68, 111A. Domestic Building Contracts Act 2000 s 64, 94, 96. Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 – cited. Archer v Neuendorf [2014] QDC 91 – followed. Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 – considered. Camden v McKenzie [2007] QCA 136; [2008] 1 Qd R 39 – considered. Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 – cited. Commissioner of Police v Al Shakarji [2013] QCA 319 – cited. Drew v Makita (Australia) Pty Ltd [2009] QCA 66; [2009] 2 Qd R 219 – considered. Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 – cited. McDonald v Queensland Police Service [2017] QCA 255 – applied. Orix Australia Corporation Pty Ltd v Peter Donnelly Automotive Pty Ltd [2007] NSWSC 977 – followed. R v Rhodes & Kissling [1999] QCA 55 – considered. Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 at [43], [57] – cited. Rowe v Kemper [2008] QCA 175; [2009] 1 Qd R 247 – cited.
COUNSEL:	D.W. Honchin for the appellant V. Keegan for the respondent
SOLICITORS:	Ward Legal Queensland for the appellant Queensland Building and Construction Commission for the respondent

[1] The appellant and his brother, Mr Troy Knuth, were tried in the Magistrates Court at Townsville on 10 charges alleging offences against various provisions of the Queensland Building and Construction Commission Act 1991 or the Domestic Building Contracts Act 2000.[1] On 7 December 2016, the appellant was found guilty of all ten counts. One penalty was imposed, a fine of $9,000, though no conviction was recorded. The appellant was also ordered to pay costs in the sum of $5,258. He has appealed, only against conviction.

[2] There are 15 grounds of appeal, including a failure to give adequate reasons, a failure “to render the appropriate or necessary assistance to the appellant whilst he was self-represented on day of the hearing”, that there were various specific errors in relation to particular findings made by the magistrate, that the magistrate erred in finding the appellant lacked credibility, that the conviction was unsafe, and that the conviction was against the weight of the evidence. It was also alleged that the magistrate had misinterpreted certain statutory provisions of the Queensland Building and Construction Commission Act 1991 and the Domestic Building Contracts Act 2000.

[3] The appeal is pursuant to s 222 of the Justices Act 1886. The appeal is by way of rehearing on the record, since neither side sought to lead further evidence: s 223. On an appeal by way of rehearing, it is necessary for me to consider the evidence and make up my own mind, particularly in relation to matters involving the drawing of inferences to primary facts, having due regard to the advantages that the magistrate had in seeing and hearing the witnesses, and in being conscious of the atmosphere of the trial generally.[2] In the proceedings before me, the onus is on the appellant to show that there was some error in the decision under appeal.[3]

Background

[4] The customer[4] bought a house at the end of January 2014, and discovered soon after that there were leaks in the roof: p 1-27. Some temporary repairs with silicon were undertaken by a plumber he knew, but the plumber was not prepared to do a re-roofing. The customer had seen around his area advertisements for “Roofguard,” and also for another business, “Roof Seal”. The customer made contact with Roofguard and asked them to come and have a look at his roof. He said that Mr Troy Knuth arrived when it was raining with another man, whom he introduced as Robert Tayler, their sales person. They said that they could not give a full quote until it was not raining, so that they could inspect the roof properly.

[5] A day or two later Mr Tayler came back with another person he introduced as Mr Bevan: p 1-27. Mr Tayler had been provided by Roofguard with a book of quotation forms in the name of “Roofguard roof painting.”[5] He completed on one such form, a quote to apply primer/sealer and mould sterilisation, to retighten and replace loose and damaged roofing screws, provide a treatment and a high pressure clean, and to replace “whirlybirds”, for a total price of $4,400 plus GST: Exhibit 1. The document has provision, at the foot, for two signatures, one under the heading “acceptance of quote” by the client, and one on behalf of the contractor. Mr Tayler signed above “signature – contractor”, but the customer did not sign, as he did not accept that quote: p 1-29.

[6] Someone from Roof Seal came and gave him certain advice, and he also obtained certain advice from the plumber who had originally applied the silicon, and he decided that he would have the house re-roofed instead: p 1-30. A few days later, Mr Tayler telephoned him to enquire about the quote, and he said that he had decided to re-roof the house instead. Mr Tayler told him that they could do that, and offered to give him a quote for it. He subsequently came to the premises again and provided a quote dated 31 March 2014 on the same type of form, for a price of $9,900 inclusive of GST, to “re-roof using Colorbond trimdeck roofing. Screws – 62mm cyclone assembly, end flashing using Colorbond steel, remove and replace solarhart hot water”: Exhibit 2. Again, it was signed by Mr Tayler in the place for “signature – contractor”. The customer also obtained other quotes, and decided to have the work done, but the process was delayed because of a family issue.

The contract

[7] Subsequently, the customer contacted Mr Tayler again and said he was ready to proceed: p 1-33. Mr Tayler came to the house again and provided a third quote, dated 22 April 2014, on the same form[6] to “replace roof sheets, screws, ridges, three stages at $3,300. Removal and replacement of solarhart. Colourbond trimdeck.” The colour was to be white and a total of $6,600 was to be paid on completion. This quote was signed by the customer under the heading “acceptance of quote.” On the same day, the customer signed a document prepared by the Master Painters Association of Queensland as a form of contract, which Mr Tayler had completed: Exhibit 4. The document referred to the earlier quotation number 2106 (Exhibit 2) and said that it was between the customer and “Roofguard Roof Painting”, giving licence number 52055.[7] The job was described as “roof repairs and re-sheeting” and referred to three stages of the work. The total price was $9,900, with payment to be made in three equal amounts.

[8] The contract form included the statement “the contractor agrees to carry out the undermentioned work subject to the conditions hereof”, and there were detailed terms and conditions set out on the back of the form. The document was signed on behalf of the contractor by Mr Tayler,[8] and by the customer after the statement: “I/We the undersigned hereby authorise the contractor to carry out the work described on Quotation and Contract ... and agree to the price and conditions of this quotation.” The customer subsequently went to the Roofguard office in Garbutt. He attempted to put the deposit on his credit card, but they did not have the facility to do that. When he went there, Mr Troy Knuth was there, and a woman in the office: p 1-35. He then withdrew $1,000 at an ATM, the most he could withdraw in one day, and paid $1,000 in cash to the office. He received a document dated 22 April 2014 which in substance was a receipt, though it was in the form of a tax invoice: Exhibit 5. It referred to a deposit of $1,000, said to be for “workmanship at [the customer’s address] as per invoice”. It was signed by the woman working in the office. This was in fact the appellant’s wife, who was employed as a bookkeeper to run the office and to handle the accounts,[9] and who therefore had authority to issue such a document as a receipt.

[9] Two days later the customer, having obtained a further $2,300 in cash, returned to the office and paid that sum, and in return was given the document Exhibit 6, which again was in the form of a tax invoice but was in substance a receipt for that amount, again described as “deposit for workmanship at” his address, and signed by the woman in the office: p 1-38. The customer said that on this occasion he believed that both defendants were there, because he recalled that on one occasion he had a chat with them both about something.

The work

[10] The customer said that two days later work began at his house, on a Saturday morning: p 1-38.[10] When men turned up and started work on the roof, the customer noticed that there was no insulation there, so he contacted Mr Tayler, and subsequently a big roll of insulation appeared at his premises: p 1-39. He said the work was actually done by someone called Daniel Bevan and two young labourers. Mr Bevan was wearing a shirt with the word “Roofguard” on it and was driving a utility which had a sign “Roofguard” on it.[11] The following week when he was asked to make a further payment he obtained cash, went to the Roofguard office and paid it to the lady in the office who provided a further document dated 1 May 2014 by way of receipt, Exhibit 7, referring to $3,300 as “deposit number three on invoice 723[12] for workmanship at” the customer’s address: p 1-41.

[11] The customer subsequently received a letter from the Queensland Building and Construction Commission referring to his having recently contracted with a QBCC licensee to undertake residential construction work and enclosing a certificate of insurance and policy conditions booklet: Exhibit 8. The insurance certificate was dated 6 May 2014 but the risk commenced on 22 April, his address was shown as the land the work was to take place on, the work was described as “replacement of roof” with a contract value of $9,900, and the contractor was identified as “OO Constructions Pty Ltd, 10 Jackson Street Garbutt Queensland 4814.” The customer said that prior to this he had never heard of OO Constructions, or had any involvement with them, and did not know who they were: p 1-43.

[12] On 16 May, Mr Tayler telephoned him to say that the work was completed, that they had the final certificate, and that if he came into the office and made the final payment he could collect it. The customer however, looked at the roof and thought that there were things that had not been finished, and on Monday morning telephoned the organisation that he understood was to do the certification, and was told by them that they had not provided a final certificate, just issued the building permit: p 1-44. He went to the Roofguard office and spoke to Mr Troy Knuth, who handed him a document which he said was the final certificate.[13] The document he handed over became Exhibit 9: it is in fact the development approval - building work, that is the approval to do the work, and was dated 15 May 2014. It was issued by Incert, the business name of a company, referred to the customer as the owner of the premises and described the work as “re-roof”, did not identify the contractor, but was addressed to “Roofguard Roof Painting.” Obviously it was that business that applied for the permit.

The dispute

[13] The customer said that on about 19 May he contacted the Queensland Building and Construction Commission (“QBCC”) and was told by them that Roofguard was not currently licenced to do that work, they were just painters and decorators: p 1-46.[14] He told them the work had actually been done by Mr Bevan, and they told him that Mr Bevan was not a current licence holder either. This prompted him to send an email to Mr Troy Knuth on 20 May 2014: Exhibit 10. Relevantly that stated that he was writing “about the recent work you have undertaken to re-roof my property, I am worried that the work carried out has been undertaken by a subcontractor that does not hold the correct licence for this work and that the work was carried out prior to the relevant insurance being in place and before the building approval had been issued....”

[14] He received a reply from Troy Knuth the same day, Exhibit 10, which relevantly said:

“The work will be finalised within this period, the builder Brett Oakley of DougleO Construction, is our nominee builder, Brett has been on site and advised that our work was up to standard, And questions Incerts requests, From what Incert advised us the rating because of park opposite the property has changed the rating from C1 to C2, in which we question? we have been requested to add cyclone assembly 65mm screws, which we have done, and now after this also have requested extra screws in cyclone strapping, which is currently being done. We can assure that all work will be completed as per there request. In this we need to remove solar hart again, as we need to get to the cyclone straps under this. Our builder will be on site tomorrow, if you have any questions.” [sic]

[15] The customer said that he had not met the Brett Oakley referred to in the email and had had nothing to do with him, until after some further rectification work was done on the roof, when he thought that Mr Oakley did turn up to inspect the roof: p 1-47. More work was done but ultimately the customer was not happy with the work, and complained to the QBCC by way of a general enquiry submitted online on 27 May 2014, which attached some photographs which had been taken of the roof by the customer’s partner: Exhibit 11. On 29 May 2014 the customer sent an email to Mr Troy Knuth, attaching two of these photographs, complaining about the quality of the workmanship, and asking him to rectify it: Exhibit 12. Subsequently he received by post a letter from Incert dated 29 May 2014 attaching a Form 21 – final inspection certificate: Exhibit 13. Again the building work was described as “re-roof” but there was nothing on the certificate to identify the contractor.

[16] The customer said that Mr Bevan had turned up to do some more work and the customer refused him access to the roof, because he had been told by QBCC that Mr Bevan did not hold the correct licences, and because he was not happy with the work that had been done by him up until then: p 1-51. He asked Mr Bevan for Troy Knuth to give him a call. He did call but at a time when the customer could not answer it, so the customer shortly afterwards called him back. As it happened the customer was in a position to record this conversation, and a copy of the recording was put in evidence at the trial, Exhibit 15. A transcript was also prepared of the recording, and Mr Troy Knuth said that they were happy to accept the transcript as evidence: p 1-53. The magistrate correctly said that it was the recording which was the evidence, but that he would look at the transcript since the defendants appeared not to be disputing the accuracy of the transcript.

[17] The recorded conversation was basically an argument between Mr Troy Knuth and the customer as to whether or not there had been a good job done. For present purposes its significance is that there were a number of references by Mr Troy Knuth to a contract. At one point he said “You got beyond the original contract,” a little later “Well not according to my contract,” and a bit later “You have got a contract signed, you have a contract signed with us... You’ve asked us for...insulation to put into the roof, you’ve asked us for insurance, certification outside of the contract”. Somewhat later after the exchange about particular defects he said “This roof is fine mate, if you engage with the QBCC mate lets have the guns out. You’ll be sending a bill for $3,000 for extras, now if you want to go down this path or you just pay up the money now and it’s all over”. There was some discussion about whether other people were permitted to do rectification work, and then he said “You want to go down this path, we get people doing this now and then to us, think they can walk all over us. If you want to do it then, then we are all going to court and we’ll see you there mate but we’re billing you for it alright”. Apart from its aggressive tone, the principle feature of this conversation was Mr Troy Knuth’s reiteration of the proposition that “we” have a signed contract. There was no hint that the work had been done under a contract with anyone else.

[18] In response to the email, Exhibit 10, and after this conversation Mr Troy Knuth on 2 June 2014 sent the customer an email, Exhibit 14,[15] which had the subject “refusal to retify” and stated:

“Please note today you have refused to allow us to retify your complaint issue, your photo of some swarf rust stain and And what you claim poor silicone work. Brett Oakley of Double O Constructions WAS ON THE SITE WITH YOU WHEN Incert inspected the roof work. And final, save if the ridge capping in wich a form 15 was provided to Incert of its final. I note also that under the building and construction payment act 2014 (qld) you need to pay the full contract price. And also all fees and extras as per your request. You have bought other people on our work site, (the Roof) with out consent of DoubleO Construction. You can not allow anyone else to do works or retify without QBCC inspecting your complaint. We welcome your involvement with QBCC.” [sic]

[19] For present purposes the main significance of this incoherent communication is the reference to “the full contract price”. Attached to the email was a tax invoice number 723, dated 22 April 2014, though it had not previously been provided to the customer: p 1-57. It described the work as “roof repairs and amp: re-sheeting” and referred to three stages, with each stage having a price of $3,000, together with two extras, one a callout requested to apply Sikaflex to the old roof prior to the anticipated arrival of a cyclone, for which $300 was charged, and one for insulation and certification, said not to be in the contract, and QBCC insurance, for which $3,000 was charged. This was a total of $12,300 plus GST, and after giving credit of $6,600, the invoice was for $6,930. I note that in the contract (Exhibit 4), condition 9 provided expressly that the contractor would be responsible for all insurance required.

[20] There was also evidence that Mr Bevan or a company associated with him had sent invoices to Roofguard Roof Painting for work that he did on the customer’s roof or other rooves: Exhibits 45, 46, 47. He said he was paid by Roofguard: p 2-74.

Other evidence

[21] A building surveyor from the business Incert was called, who produced a number of documents from the records of that business. There was an engagement agreement between Incert and Roofguard Roof Painting dated 28 April 2014, in respect of the re-roofing of the customer’s property, where the application form was signed by Mr Troy Knuth on behalf of Roofguard Roof Painting: Exhibit 17.[16] There was also an application in Form 1 under the Sustainable Planning Act 2009 which was provided to Incert, which was not signed by anyone but had been filled in in the name of Roofguard Roof Painting for the re-roofing of the customer’s dwelling: Exhibit 20.[17] It gave the address of the business, and an email address of “troy@roofguard...”, and the applicant’s reference number of 2205, the same as the number on the third quotation, Exhibit 3, the one that was accepted by the customer.

[22] The surveyor also identified a notice in Form 18 which was to be given to the owner that a private certifier has been engaged, dated 29 April 2014, with the customer’s name and address as the owner, which identified that the certifier was engaged by “Roofguard Roof Painting” on 29 April 2014: Exhibit 19. Finally there was an invoice dated 28 April 2014 raised by Incert to Roofguard Roof Painting in respect of this work, which noted that the fee was payable at the time of engagement: Exhibit 18. He said Incert also received from the applicant a Form 2, which contained the customer’s details as the owner’s details, but which had the name of the builder as Mr Glen Hicks, and gave a mobile phone number and a BSA license number: Exhibit 21.[18] The document also referred to re-roofing the existing premises at a price of $9,990. He said that Incert had a couple of pro forma documents on their website for people to download and complete which would provide structural information and energy efficiency information which they needed: p 1-80. These forms were to be filled out by the applicant. He identified a form using that pro forma which referred to the customer’s name and address, and contained some technical issues about the roof, so as to qualify as a structural specification: Exhibit 22.

[23] The surveyor said that on 1 May 2014 he wrote to Roofguard Roof Painting seeking confirmation of the BSA insurance in relation to the project: Exhibit 23. On the Incert file there was a form of confirmation of insurance issued by the Queensland Building & Construction Commission confirming that “Double O Constructions Pty Ltd” had paid the appropriate insurance premium for the work, described as “1x replacement of roof” at the customer’s address, for a contract value of $9,900. The surveyor said that the ordinary practice was for this to be emailed to them by whoever paid the insurance: p 1-81. He said that he then assessed the document and issued the development application decision notice, commonly referred to as the building permit: Exhibit 9. The notice was sent to the homeowner, and also sent to the applicant for the permit, Roofguard Roof Painting. He said that according to Incert’s office register, this permit was collected by someone from Roofguard: p 1-82.

[24] The surveyor said he subsequently conducted an inspection, after the roofing had been installed, but he had some of the sheets lifted so that he could inspect what had happened to the frame. He discovered that some strapping had not been properly secured with two screws as a result of which he issued a non-compliance notice: p 1-83. This notice was addressed to Roofguard as the builder: Exhibit 24. He said it was emailed to Roofguard: p 1-84. He said that there were further inspections, and on 23 May 2014 he sent a further non-compliance notice to Roofguard by email: Exhibit 25. After further inspection he issued an inspection certificate dated 25 May 2014 in respect of the frame in Form 16: Exhibit 26. He said in evidence however that he believed that this related to an inspection on the same day as the one that produced Exhibit 25, and that the date 25 May was incorrect, and it was actually emailed to Roofguard on 23 May: p 1-86. The surveyor said that after he issued the original non-compliance notice regarding the frame inspection, Exhibit 24, he had a phone call from one of the defendants complaining about the fact that he had to have the solar hot water system taken off the roof, but he could not recall which defendant this was: p 1-86.[19]

[25] The surveyor said that in the building approval that he issued there was a requirement for the installation of insulation, which is required by the current building standards: p 1-89. He had a discretion not to apply those standards but he did not exercise it. He said he subsequently received two Form 16 certificates in relation to the installation of the ridge capping and the installation of insulation, both of which had been issued by Double O Constructions Pty Ltd, dated 26 and 28 May 2014: Exhibit 27. In each case the contact person was given as “Troy Knuth,” and in one case the postal address was that of Roofguard Roof Painting. He then issued a final certificate dated 29 May 2014: Exhibit 28. He confirmed that Exhibit 13 was the final certificate in Form 21 which had been sent to the owner of the property, it confirmed that he was happy with all the works and they met the building approval: p 1-91.

[26] Evidence was given by an employee of the Queensland Building and Construction Commission who had investigated the customer’s complaint. He put in evidence various information he had obtained from different records: a print out of material on the Roofguard Roof Painting website: Exhibit 29[20]; a print out of the website register search, which identified the registered user of the website for Roofguard Roof Painting: Exhibit 30; and a print out from the Commission’s database on the appellant: Exhibit 31. This showed that at that time he held a painting and decorating contractor license and had trading names “Roofguard Cool Roof” and “Bushland Beach Painting Service,” with a business address the same as the address for Roofguard Roof Painting on other documents. It also had the same ABN as on the quote forms used for the first two quotes provided to the customer, Exhibits 1 and 2.

[27] The investigator said that in the course of his investigations he telephoned Mr Troy Knuth, who told him that they were owed money for the job: p 1-105.[21] He asked for a copy of the contract and Mr Knuth requested an email to their sales email address, requesting a copy of that contract. He had a note that that phone call was made at 3:34pm on 12 June 2014: p 1-106. He sent an email requesting a copy of the contract, and telephoned Mr Troy Knuth the next day who told him that he had spoken to the appellant who had said that he was speaking to his lawyer: p 1-107.[22] In response the investigator sent a notice under the Queensland Building & Construction Act 1991 s 106A requiring production of all contracts in respect work at the customer’s premises, and, if no contracts exist, all other documents evidencing the carrying out of building work: Exhibit 32.

[28] On 17 June 2014 the investigator received an email from “Jeff Knuth” saying: “Please find attached the requested documentation concerning the job... Regards, Jeff”: Exhibit 33. Attached to this were copies of Exhibits 4, 2, 17, 18, 28, 26, 25, 24, the Certificate of Insurance which was part of Exhibit 23, a quote from Stramit Building Products to “Roofguard Cool Roof” of 28 March 2014 for various items,[23] two pages of handwritten notes,[24] and a photograph. The investigator said that after receiving these documents and perusing them, he telephoned again and on 18 June 2014 spoke to the appellant who told him that “he thought they were doing the right thing because Brett Oakley had a builder’s license and had raised the insurance”: p 1-110. After refreshing his memory from contemporaneous notes, the investigator added that the appellant had said, when advised that their contract was signed for a re-roofing that was outside the scope of the license, that he was unaware of this as he had people working for him who get the jobs for him, and that Mr Tayler had signed the contract for the job: p 1-110.[25]

[29] The investigator sent another email to the appellant on 18 June 2014 explaining the situation about the penalty notices that would be issued to him for unlicensed contracting: Exhibit 34. In response the appellant asked to have the matter heard in court, and asserted among other things that his signature was not on the contract or the initial quote: Exhibit 34. In a later email in response to another document production requirement, the appellant said that there were no written documents evidencing agreements between Roofguard and Mr Bevan or Mr Tayler, the arrangements with them were oral: Exhibit 36. It appears that a copy of this email was also sent to the investigator as a letter on “Roofguard Roof Painting” letterhead.

[30] On 11 July 2014 the QBCC received a letter, Exhibit 44, apparently signed by the appellant, in relation to the infringement notices issued to him and a letter dated 1 July 2014. Among other things in the letter the appellant stated: “While it is true that I had some knowledge of a job being conducted within the perimeters of my business, I was equally led to believe by those under investigation[26] that this job was being performed under the contract through Mr Brett Oakley of Double O Constructions... in cooperation with a subcontractor known to us as Mr Daniel Bevan...”.[27] The letter otherwise advanced the point that the signatures on the quote and contract were not his, and was self-serving.

[31] The appellant sent a number of documents relating to Mr Tayler and Mr Bevan to the investigator under cover of an email dated 16 December 2014, in response to a further requirement for documents: Exhibit 39. This included a document signed by Mr Bevan[28] dated 2 June 2014 headed “Roofguard Roof Painting ACN 32654360569 Company Car Policy,” which began: “As part of your engagement with this company, you are being provided with a company vehicle subject to these terms and conditions...” The ACN in fact corresponds to an Australian Business Number which according to an ASIC search was from 8 February 2014 held by a partnership of “JA Knuth & T Knuth,” being Jeff and Troy Knuth, the defendants: Exhibit 39.

[32] Included in Exhibit 39 was a document indicating that the business name “Roofguard Roof Painting” had been registered on 15 July 2014 as a business name held by Roofguard Roof Restoration Pty Ltd, and had a different ABN. Any change in the holder of the business name after the relevant events is irrelevant to the charge. A further search, Exhibit 41, showed that the registration of the name “Roofguard Roof Painting” by a partnership constituted by the defendants was cancelled on 11 August 2014: Exhibit 41. This gave an ABN for the partnership which was the same as the ABN in the ASIC search in Exhibit 39, printed on the form in Exhibit 3, written on each of Exhibits 5, 6 and 7 (the receipts given to the customer) and printed on the tax invoice which was part of Exhibit 14. Another ASIC search conducted by the investigator revealed that there had been a company Roofguard Roof Painting Pty Ltd registered on 17 November 2010, but that company had been deregistered on 3 July 2013: Exhibit 40.

[33] Mr Hicks was a licensed builder who gave evidence that he knew both defendants, and that on one occasion around May 2014[29] when he was at a shopping centre the appellant had said that they might have a little bit of work for him, and when he expressed some interest said they would give him a call: p 2-13.[30] He was subsequently invited by Mr Troy Knuth to their business premises, where he met both defendants, and he was told that they needed a builder’s number so that they could do more than just paint roofs: p 2-13. He was offered a fee for being a nominee supervisor. He said he did not accept the offer: p 2-14. That this meeting occurred involving the appellant was not challenged in cross-examination by counsel for the appellant.[31]

[34] Mr Oakley said that he was a licensed carpenter who was previously employed by Double O Constructions Pty Ltd for about 18 months from about September 2013: p 2-94. He said that neither he nor Double O Constructions ever entered into a contract with the customer: p 2-95. He said that he was approached by his brother who was also involved in Double O Constructions, who had been approached by Mr Bevan to ask if he would be willing to help out because he was doing a job and they did not have a licence. He said he then went to Roofguard and spoke to Mr Troy Knuth and others, when he was told that they needed someone to certify the job and do insurance, and he went ahead and did that. For his services he was to get $500 plus the cost of the insurance, and he was to go and check on Mr Bevan’s work to make sure it was going to be certified.

[35] Mr Oakley initially said that the appellant was at the meeting, but he conceded that he had not previously known the appellant, and apparently he did not recognise him in court: p 2-103. He conceded that he could not identify the appellant (p 2-104) but said that there were four people there apart from him: Mr Troy Knuth, Mr Tayler, Mr Bevan and this fourth man. There was no reason for anyone else to be involved in this conversation apart from the appellant.[32] I regard this as strong circumstantial evidence that the appellant was the other person who was present at this meeting.

[36] Mr Oakley said that the job had been started when he became involved: p 2-96. He submitted insurance, or rather arranged for the office person to organise insurance for the job through Double O Constructions Pty Ltd: p 2-96. He said that he did no work on the site himself: p 2-102. He identified Exhibit 34 as an invoice for his services sent by the business owner of Double O Constructions Pty Ltd, who also owned QPAMS, the business name on the tax invoice. This was an invoice for $500 plus the cost of building insurance, and was stamped “paid” with the date 21 May on the copy provided to the QBCC by the appellant. Mr Oakley confirmed the money had been paid: p 2-98. The terms of this invoice, and the fact that it was paid, provide strong support for his evidence as to the arrangement made with him. He confirmed that he had signed the two form 16 certificates in Exhibit 27: p 2-99. He said that he was later telephoned by the appellant who asked him to sign a document, which he refused to do: p 2-100.[33]

[37] Mr Bevan in evidence said that he was a carpenter but held no licence from QBCC: p 2-53. The work that he did on the customer’s roof was the first time he had worked for Roofguard, that he worked as a subcontractor, and that this organised by Mr Troy Knuth: p 2-54, 55. He said that he did not order the materials for the customer’s job: p 2-59. He said that after the first day on the job the customer asked him about insulation and certification: p 2-62. He spoke to Mr Tayler and Mr Troy Knuth, when there was a discussion about the fact that Roofguard did not hold a licence to certify the job: p 2-63. He said that he had contacted Mr Oakley who agreed to help, and he had suggested Mr Oakley to Mr Troy Knuth: p 2-67, 2-83.

[38] Mr Bevan said that neither Exhibit 20 nor Exhibit 22 were in his handwriting, though he gave Exhibit 22 to Incert: p 2-70. He was told by Mr Troy Knuth that he had arranged Incert’s involvement. He said he was paid by Roofguard via a bank account in the name of someone else[34] as he had no ABN at that time: p 2-78. He agreed that at one stage Mr Troy Knuth told Mr Tayler to cancel the contract, but said that this was after work had started on the project, when the issue arose about insulation and certification, and before he arranged for Mr Oakley to be involved: p 2-83. He said that Roofguard supplied the materials for the jobs that he did for them: p 2-84. He had also signed Exhibit 35 which he said was presented to him to sign by the appellant,[35] and he claimed that it was correct (p 2-89) though in some respects it was inconsistent with his oral evidence. He said the appellant was involved in the decision to get Mr Oakley involved in the project: p 2-89.

[39] Mr Tayler gave evidence, essentially supporting the story that when he took the contract back to the Roofguard office Mr Troy Knuth informed him immediately that it was an illegal contract and told him to give the customer a call and tell him that they could not go ahead: p 1-138.[36] He claimed that he did make such a call to the customer, but that subsequently Mr Bevan had suggested that he could get a contractor to do the job, as a result of which he did not do anything else in relation to the project. The magistrate did not accept this evidence, and neither would I, as it is plainly inconsistent with other more reliable evidence. Mr Tayler had signed a document provided to him for signature by the appellant which became Exhibit 35,[37] evidently a document contrived to exonerate the appellant: p 1-139.

Defence evidence

[40] The appellant said in evidence that after he married in 1987 he and his wife carried on business in partnership: p 3-10. In 2010 he was involved in a motor vehicle accident and suffered various injuries. As a result he is limited in the physical work that he can do: p 3-11. He and his wife separated the following year. Following that separation he wanted to get out of the partnership with his wife, and in connection with that he formed a partnership with his brother, Mr Troy Knuth: p 3-12. He said that Troy did not bring anything into the partnership, and did not have ownership of any of the business assets, and he could not sign cheques: p 3-13.[38] He said that the partnership was “mainly to get out of the formed one [with his former wife] and also for tax purposes”: p 3-13. In order to be effective for tax purposes, it was necessary for the partnership to be a real partnership.

[41] The appellant described the business undertaken as “roof restoration”. In connection with that he said that they could do minor repair work, under $3,000. He said that the business had the trading name “Roofguard Roof Painting” from 2013 until 2014. In the early part of 2014 he was attending the Roofguard office only on occasions, though he clarified that to something in the order of two days a week: p 3-15. Mr Troy Knuth was running the day-to-day operation of the business, nevertheless, he signed all the cheques himself: p 3-16. He did not in evidence say anything about electronic fund transfers. Ms D Knuth said she made those, and that these were most of the payments made by the business: p 3-110, 111.

[42] The appellant said that in about March 2014 he had a meeting with his brother and Mr Bevan and Mr Tayler at the Roofguard office, as a result of which it was decided that they would work for the business on a contract basis: p 3-17.[39] He said they had their own ABNs and would not have been employed if they did not: p 3-18.[40] The appellant said that the process was that Mr Tayler would measure the roof and try to win the contract “get them to sign, you know, the quote, which would then be brought back to us, and if they were happy with everything, we would sign a contract”: p 3-21. They had forms of contract which were prepared by the Master Painters Association, pre-printed forms, which he said Mr Tayler was able to take with him: p 3-21.[41] It is apparent from his description of the mechanism that it was part of Mr Tayler’s job to get the customer to sign the contract form, but he said that he and his brother were the only ones who had signed the contracts as contractor: p 3-21.

[43] The appellant said that he first became aware of the existence of the “contract” Exhibit 4 when he was telephoned by the QBCC in June 2014: p 3-27. He did add however that he knew of a job that was going on at the customer’s address, but understood that it was being done by a builder. He said that he had on his desk credentials from OO Constructions which that builder had provided: p 3-28,[42] in the form of a certificate from QBCC as to Mr Oakley’s licence. He said that he had seen Mr Oakley, but never had a conversation with him in person, or by telephone: p 3-37. The appellant agreed that he had met the customer on one occasion when he came into the office to pay some money, and the appellant had said in a light hearted way to the woman in the office, “Danni, take the money, quick”: p 3-29.[43] He denied having paid any attention to the money being taken by her: p 3-30.

[44] The appellant said that after he was told by Mr Bevan that the builder had not signed the contract with the customer, he spoke to his brother and they went to the QBCC office in Townsville, where his brother spoke to them about various things: p 3-33. Later he said that as soon as he saw the contract Exhibit 4, he took Mr Tayler to the carpark and accused him of being a liar: p 3-36. He said he made a complaint to the police about him, and complained persistently to the point where they were sick of him: p 3-37.[44] He said he also made complaints to the police about Mr Bevan: p 3-36.

[45] Under cross-examination, the appellant claimed that the email Exhibit 39 purportedly signed by him had been sent by his secretary, presumably Ms D Knuth: p 3-39. He conceded however that it was sent on his behalf, and she said that she sent it on his instructions. When taken to one of the documents attached to the email, the ASIC business name search for “Roofguard Roof Painting”, he was evasive about it, and claimed that there were errors in ASIC’s records: p 3-40. He did however admit that the partnership with his brother was in existence in February 2014: p 3-41. The appellant was also evasive about whose role it was to order materials, claiming that this was only a very small component of the business, and was not frank about who was responsible for ordering materials to the extent that it was a component of the business at all: p 3-42. He did say it was his brother’s role to deal with suppliers of services, and sometimes to deal with complaints from customers, but said that debt recovery was handled by himself or Ms D Knuth on his behalf: p 3-42.

[46] When cross-examined about the quote forms, he agreed that it was part of Mr Tayler’s role to provide quotes on behalf of Roofguard, but denied that he was authorised to sign the quotes, and said that he told him not to do so because he “didn’t want any signatures on anything”: p 3-49. The proposition that Mr Tayler was authorised to give quotes but not to sign them is nonsensical, and therefore unbelievable, but it was consistent with the appellant’s generally evasive response to cross-examination. Another example, on the same page was where it was pointed out that the quote form did not have his name on it, and he said that he disputed that, because “it has got my licence number, which is my name”. Telling a person whose job it is to provide quotes to “sign nothing” is not the approach of an honest businessman. The more the appellant was questioned about this point, the more absurd his position became: p 3-50.

[47] At p 3-53, the appellant was not even prepared to admit that Mr Tayler was provided with the standard form quote documents to provide quotes, though at p 3-47 he had admitted that Exhibit 1 was a quote form used by Roofguard. When asked whether he and Mr Bevan were provided with the Roofguard shirt to wear while working, he said they were not provided with one but “they could take one if they wanted to”: p 3-53. He agreed that Mr Bevan was provided with a vehicle by Roofguard, which had Roofguard advertising on the side: p 3-54. At p 3-56 there was a good example of the appellant seeking to sabotage cross-examination by giving unresponsive answers.

[48] The appellant claimed that the customer was an oddity because no one had ever previously come into the office without a contract in their hands: p 3-59. If that was so, it was precisely the sort of matter which Ms D Knuth would have referred to the appellant, or perhaps his brother, to find out how the money was to be accounted for, and that would have led to enquiries being made as to how the business came to be having dealings with the person of the customer’s name at the customer’s address. The notion that the business would simply receive a large sum of money in cash, in what according to the appellant was a wholly exceptional way, and not investigate to find out what was going on is in my view plainly fanciful. He even claimed that by 1 May 2014 when the third receipt was provided she still did not know who the customer was: p 4-61.

[49] The appellant claimed that the invoice which was part of Exhibit 14 was sent after he and his brother had spoken to the QBCC office in Townsville: “It was directed by us from the QBCC to get our money back”: p 3-66. When it was put to him that on his evidence there was no reason for this invoice to exist inside the Roofguard account system, to the extent that he gave any explanation for it, it was that he had been told to do this by the QBCC: p 3-66, 67.[45] He claimed that the copy of the contract which was sent to the QBCC as an attachment to his email on 17 June 2014, Exhibit 33, was a copy that had been sent to him by QBCC: p 3-68. That proposition is unbelievable. He agreed that Mr Tayler did not have authority to order materials from Stramit on Roofguard’s account in March 2014 (p 3-69) but claimed not to know whether at that time Mr Bevan had authority to order materials in that way: p 3-70.

[50] The appellant agreed that the quote from Stramit which is part of Exhibit 33 was for roofing materials: p 3-69. The date on the quote was before the date the customer signed the Roofguard quote and the contract, and the appellant said that the document from Stramit was sent accidentally to the QBCC because it does not coincide with the customer’s job: p 3-71. But in fact it coincides precisely: it was not an invoice for goods supplied by Stramit, but a quote issued on 28 March 2014 by Stramit for the supply of goods, valid until 27 April 2014. The timing fits the first quote given by Mr Tayler to the customer for a reroof, Exhibit 2, dated 31 March 2014. The customer’s evidence at p 1-30 indicated that he had told Mr Tayler by telephone that he was going to do a reroof, and this occurred before Mr Tayler came to his house again and gave him the quote which became Exhibit 2. That would be consistent with this quote having been obtained from Stramit on 28 March.

[51] I note that the contact person named in the quote from Roofguard was “Troy Knuth”. It is possible that Mr Tayler, or for that matter Mr Bevan, gave Mr Troy Knuth’s name to Stramit as the contact person, though that would strike me as a very strange thing to do if they were wanting to keep knowledge of this job from the defendants at that time, which was part of the defence case. It is also very curious that this document was among the Roofguard office records relating to this project, if it was something provided to Mr Tayler or Mr Bevan behind the defendants’ backs, and they had kept quiet about it at that time. At one point Mr Troy Knuth referred to his getting a quote from Stramit for Mr Bevan, but not knowing what it was for: p 4-23. It was not clear that this was the quote he got, but if so, why was it with those records?

[52] When the appellant was cross-examined about the recorded telephone conversation between Mr Troy Knuth and the customer, he claimed that Mr Troy Knuth was referring to the contract supposedly between Mr Oakley or OO Constructions and the customer: p 3-76. Such an explanation is obviously nonsense.

[53] If the appellant’s evidence at p 3-78 were true, he must have discovered the existence of the contract between 13 and 17 June 2014. The appellant claimed that he saw the contract when the Townsville branch of QBCC sent a copy to Ms D Knuth, who showed it to him: p 3-79. None of this of course was mentioned in the appellant’s email of 17 June 2014, Exhibit 33. When he said this, his counsel leapt into the breach with what purported to be an objection (but was not a proper objection), to point out that a copy of the contract had been included with the complaint form dated 10 June 2014 sent by the customer to QBCC, Exhibit 16. Accordingly, it was true that the QBCC had a copy of the contract from the customer prior to this conversation, but that does not alter the fact there was simply no reason why a copy of that copy would have been sent by QBCC to the defendants. Further, it seems to me from a close examination of the copies in Exhibit 16 and Exhibit 33 that the latter is not simply another copy of the copy in Exhibit 16, because there are marks on the version in Exhibit 33 which are not present on Exhibit 16, and the changed figures “2-4” under Item C are much more pronounced in the Exhibit 16 version than the Exhibit 33 version. It was in my view perfectly proper, indeed consistent with the obligation to put his case, for the prosecutor to have put to the appellant that the notion that the copy that he sent with Exhibit 33 was a copy which had just been sent to him by QBCC was not true.

[54] The magistrate did not accept the appellant’s evidence. One of the grounds advanced on the appeal was that the magistrate had misused his advantage in seeing and hearing the witness in arriving at this conclusion, but no arguments advanced in support of that ground had any substance. Having read the transcript of the appellant’s evidence, I have no reason to doubt the magistrate’s conclusion about his credibility. My impression from the transcript was that the appellant was evasive and argumentative, and frequently volunteered unresponsive comment when asked a question, apparently because he did not want to give an answer to the question. The impression I gained from reading the transcript was that the appellant was a thoroughly unreliable witness. Far from concluding that the magistrate’s unfavourable assessment of his credibility was in error, I would wholeheartedly endorse it. In my view, the only parts of the evidence of the appellant which are deserving of any weight at all are those parts which amount to admissions against interest.

[55] Ms Denitsa Knuth gave evidence that she worked for Roofguard in January 2014, initially part-time but full-time since October 2015: p 3-109.[46] She confirmed that she would provide receipts for payments that were made at the office, though this was rare: p 3-110. She said that Mr Tayler and Mr Bevan were paid by electronic funds transferred by Roofguard: p 3-111. She said that at the time of the deposit payments she did not have access to raise invoices on the accounting software, and thought that this would have been done by Mr Troy Knuth: p 3-120. She said that Mr Troy Knuth generated the invoice which was part of Exhibit 14: p 3-126. She did not have any involvement in generating it. Her evidence was difficult to follow as to how it came about that Exhibit 7 had invoice no. 723 written on it: at one point she said that Mr Troy Knuth raised digital invoices (p 3-120) but then she said that when she completed Exhibit 7 on 1 May 2014 she obtained the order number simply by taking the next available number in the system: p 3-122. Later she said that she could not recall whether on 1 May when preparing Exhibit 7 she allocated the next number in sequence as the job number, or whether there was an invoice already in existence with that number: p 3-134. Her evidence was quite unclear as to whether the effect of her obtaining that number was that the number came to be allocated to the customer within their invoicing system.

[56] She also said it was part of her job to arrange payment to the suppliers of money owed by Roofguard: p 3-138. She had authority to make those payments herself: p 3-139. She said she would generally check that the materials related to a particular project, but could not be certain it was done every time. She said that her initial was on the stamp on the QPAMS invoice: p 3-140. She said that she recognised Mr Bevan’s writing on the invoice in Exhibit 45, which refers to the customer’s address. She first said that the invoice was paid on 5 May 2014, as noted on the stamp on it, but that she would not at that time have recorded the payment against the particular project: p 3-141. A bank docket shows that the payment was in fact made on 2 May 2014: p 3-142.

[57] Mr Troy Knuth gave evidence, but the magistrate did not regard him as a reliable witness and did not accept his evidence. That finding was not specifically challenged by the appellant, and is entirely unsurprising; even reading the transcript, there are parts of his evidence which are so implausible as to be unbelievable, even apart from the inconsistency between his evidence and the communications from him, including the recorded conversation with the customer, the contemporaneous paperwork, and the way in which the transaction was structured financially. When he began his evidence he described himself as a sales rep for Roofguard Roof Painting (p 4-17), but he conceded that he had been asked by the appellant to be a partner and he had signed documents with an accountant to get it going legally: p 4-19.

[58] He agreed that Mr Tayler’s function was to obtain customers for roof painting (p 4-20) and to do quotes, and agreed he had been given a quote book, but claimed (unbelievably) that he was not entitled to sign the quote forms in the quote book when he did a quote: p 4-21. He claimed at p 4-35 that Mr Tayler was allowed to do quotes but he was not allowed to sign contracts. He said that when he was shown the contract that it was quite inconsistent with what he had told Mr Tayler to do, but that his reaction was not to get onto the customer himself, but merely to tell Mr Tayler to do this: p 4-22. He agreed that Mr Bevan had then suggested that he knew someone who could do the contract, and he claimed that he had a conversation with Mr Oakley when Mr Bevan brought him to a meeting when Mr Oakley said he would take on the contract: p 4-22, though he claimed at line 32 that Mr Oakley had said that although he would do the contract “you guys run it”. Why the arrangement would be that people who had no experience of re-roofing would run the job is implausible enough, but he then claimed to have said that, “to keep track of it I’ll give you an order number”: line 44.

[59] He then claimed that two or three weeks later Mr Oakley had asked him to arrange for the certification on the ground that he (Mr Oakley) was too busy to do so, and he organised that even though he had never done such a certification in his life and had no idea how to do it: p 4-23. That was his explanation for Roofguard’s dealings with Incert, which defies belief. Under cross-examination Mr Troy Knuth said repeatedly that the partnership “wasn’t a consummated partnership” because it did not involve a lawyer[47] but he had previously agreed that he had been to an accountant and signed a document for the partnership, a document which was never produced in evidence. He did however eventually agree that he and the appellant were operating a business together, where the appellant held the QBCC licence: p 4-33.

[60] He claimed at p 4-37 that he did not provide a Roofguard uniform to Mr Bevan, nor did he know they were provided with the Roofguard vehicle or authorise them to have such a vehicle. He claimed at p 4-39 that the invoice which was part of Exhibit 14 was something he had produced on his iPhone on 23 April 2014, and was an invoice for Mr Bevan to charge the customer for product. He changed his evidence from having produced the invoice (p 4-39) to having just put the job number on it: p 4-41, though he then said he typed in another part of the invoice later at the end of the job, on 2 June: p 4-42. He claimed that he did not know what money was coming in (p 4-40). He then claimed that the invoice was just an invoice for Mr Bevan’s materials: p 4-43. He admitted however that Roofguard paid for the materials for the job: p 4-43.

[61] When cross-examined about emails that he had sent to the customer, he claimed that he was simply saying what Mr Bevan was dictating to him: p 4-51, another unbelievable proposition. When cross-examined by counsel for the appellant he confirmed that he went to an accountant to sign some paperwork for a partnership, though he could not recall whether it was a document for ASIC, but when asked whether he had a partnership agreement with his brother, his answer was “no”: p 4-62. He went on to claim that he took no profits from the business and owned no property used in it, and was not liable for taxation or debts in relation to the business, all of which is quite inconsistent with the fact that the business was registered for an ABN as a partnership.[48]

[62] He claimed at one point that there was $13,000 spent on material for the roof and that they wanted this to be paid by Mr Bevan: p 4-67, a proposition which was plainly inconsistent with the fact that he sent an invoice to the customer, and that Mr Bevan’s invoice for his labour was paid. So far as I can form an impression from the transcript, Mr Troy Knuth’s evidence was a tissue of lies. The only part that deserves any weight was where there were a number of admissions made against interest, particularly in relation to various payments, in effect that the partnership business had paid various costs associated with the reroofing for the customer.

[63] Apart from giving evidence himself Mr Troy Knuth called two witnesses. The first was the former agent for Solarhart in Townsville, who gave evidence that he received a phone call from Mr Bevan seeking a price to remove and replace the Solarhart unit at the customer’s property: p 4-5. He gave a price which he said Mr Bevan did not accept. The relevance of this evidence escapes me. The second was a self-employed plumber who said that he was contacted by Mr Bevan to remove the Solarhart from the customer’s roof, and refit it, which he did: p 4-9. There was also an electrician involved. He said that he billed Roofguard, at Mr Bevan’s direction: p 4-14 and was paid by Roofguard. He said the invoice was sent by email. That was further evidence implicating Roofguard in this job.

The Magistrate’s Reasons

[64] The magistrate’s decision was given on 7 December 2016. He had prepared written reasons which he read into the record. The magistrate recited the history of the matter, initially focussing on matters which were uncontroversial. He went on to accept that a chronology provided by the prosecution accurately set out the timing of the events in question. He noted that the defence case was that the contract was something done by Mr Tayler and Mr Bevan with no connection with the defendants’ partnership business, but said that everything about their dealings with the customer subsequent to his signing the contract, and with other parties, suggested otherwise. It will be apparent from the recitation of facts that I have set out that I would endorse that analysis. He went on to say that it was inconceivable that the defendants would engage in this conduct if they did not believe that they were obliged to do so as a result of the contract with the customer, and he then found that the defendant, Mr Troy Knuth, knew that there was a contract signed by the customer, apparently on the basis of his evidence to the effect that he was told straight after the contract was signed.

[65] When dealing with the evidence the Magistrate expressed some doubt about the evidence of Mr Tayler and Mr Bevan, though he did not say that he rejected their evidence generally. He was critical of the appellant’s evidence which he evidently rejected, as he did the evidence of Mr Troy Knuth. On the other hand he formed a favourable impression of the evidence of Mr Oakley and preferred it to the evidence of Mr Troy Knuth. In particular, he rejected the notion that Mr Oakley became involved prior to the commencement of the work at the customer’s premises, and characterised that as something done by the defendants to deflect responsibility for their actions.

[66] In my view, the obvious explanation for Mr Oakley’s having become involved was the explanation he said that he was given, namely that they needed somebody who held a builder’s licence to obtain the necessary insurance and to assist in the provision of the certification which the customer wanted. Mr Oakley said that he was to do this in return for being paid a fixed fee and the cost of the insurance, an invoice was submitted to the defendants’ business which was entirely consistent with that evidence, and was paid by it. That provides, in my view, compelling confirmation of his version. The customer’s evidence was accepted, and there was certainly no good reason to doubt the reliability of his evidence. The same applied to the evidence of the witness from Incert.

[67] The magistrate found the customer entered into a contract with Roofguard Roof Painting to reroof his house. He found that at the time the customer signed the contract Mr Tayler was a representative of Roofguard Roof Painting acting within the scope of his apparent authority. That business was a partnership constituted by the two defendants and each partner was responsible for the acts and omissions of the other. He found that Mr Troy Knuth had engaged in actions that facilitated the completion of the contract, and was aware of it and that the business performed the work described in the contract. The customer paid money to the business, and the appellant was present when a payment was made, and had instructed his employee to accept the payment. Mr Bevan performed the work outlined in the contract at the customer’s premises and at the time he performed that work he was a representative of the business. He found that each of the assertions made in the particulars attached to the complaint with respect to each of the defendants had been proven to the requisite standard, and found each of the defendants guilty of the offences charged.

Issues on appeal

[68] One of the grounds of the appeal was that the reasons of the magistrate were inadequate. Reference was made to various authorities dealing with the “inadequacy of reasons,” most of which are well established. Reference was made to Camden v McKenzie [2007] QCA 136; [2008] 1 Qd R 39. In that case it was said at [30] that:

“...adequate reasons for judgment will refer to the evidence which was important to the determination of the matter, and will set out material findings of fact, giving the judge’s reasons for his or her findings of fact, and stating the basis on which the judge has come to prefer one body of evidence over a competing body of evidence.”

[69] Earlier authorities were noted where it had been said that in cases involving a contest of word against word the resolution will be a matter not of reasoning but of judgment, and that where the resolution of the case depends entirely on creditability it is probably enough for the judge to have said that he believed one witness in preference to another.[49] These propositions were not overruled, but simply distinguished on the facts of that particular case. Indeed in that case the court formed the view that the trial judge had overlooked a significant contest of credibility, and had failed to refer to contemporaneous documents which bore upon the resolution of that contest: [37].

[70] The decision in Soulemezis (supra) was also referred to by Muir JA, with whom the other members of the court agreed, in Drew v Makita (Australia) Pty Ltd [2009] QCA 66; [2009] 2 Qd R 219 at [59] and [60], where his Honour endorsed statements in that case by Mahoney JA that “it will ordinarily be sufficient if... by his reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he has acted,” and by McHugh JA that reasons do not need to be lengthy or elaborate but “it is necessary that the essential ground or grounds upon which the decision rests should be articulated”. Reference was also made at [61] to a statement by Samuels JA in an unreported decision that “there is no requirement... that reasons must incorporate an extended intellectual dissertation upon the chain of reasoning which authorises the judgment which is given”.

[71] Reference was also made to a passage by Meagher JA in Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443-444, where three fundamental elements were referred to:

“First, a judge should refer to relevant evidence... Secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached... But that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear... Further, it may not be necessary to make findings on every argument or destroy every submission, particularly where the arguments advanced are numerous and of varying significance... Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well.”

[72] It was submitted that the magistrate had provided no explanation for shunting aside the appellant’s evidence, but the magistrate in fact referred to a number of features of the appellant’s evidence which supported his conclusion that the appellant was evasive and unreliable. The conclusion in this respect was obvious enough, and would certainly be obvious to anyone who heard the evidence. It was said that there were no reasons given for concluding that Mr Tayler and Mr Bevan were representatives of Roofguard, but that proposition was, for reasons I will discuss in relation to the operation of the legislation, obvious enough; the defendant’s arguments to the contrary seem to based on the assumption that they could not be representatives if they were not employees, which was not to the effect of the act. Whether they were employees or agents was essentially irrelevant, and the only real question was whether they were acting within their authority. In my opinion on the evidence they were independent contractors, but the great bulk of people who are agents of one kind or another are independent contractors, and the only real issue in this case was as to their authority. Some of the particular matters which were said were not properly dealt with were matters which I will deal with separately myself.

[73] In my opinion once findings were made rejecting the evidence of the defendants, and accepting the evidence of the customer, Mr Oakley, the surveyor (and the investigator, whose evidence was not particularly challenged so it was unnecessary for the magistrate expressly to say that he accepted it), the situation in this case was clear enough, and the involvement of both defendants was obvious. The defence case in relation to all the charges, as is apparent in the written submissions by counsel for the appellant which are on file, was based heavily on the proposition that Mr Tayler and Mr Bevan were not acting within their actual or apparent authority as agents in doing the various things that they did. Once that proposition was rejected by the magistrate, the defence case in relation to all the charges really collapsed. That was essentially a key conclusion. The proposition that they were on the evidence I shall discuss later. If they were acting with authority, which included apparent authority, then the defendants were clearly guilty of most charges, although there were some where their guilt did not depend on such authority.

[74] Overall the reasons of the magistrate were concise, perhaps terse, but reasons can be adequate without being as longwinded as mine are, and I am not persuaded that this ground of appeal has been made out. Perhaps he should have worked through the relevant sections creating the different offences to show that each had been committed, as I have below, but since my analysis shows that, on the findings made, all the offences were committed, I would not allow the appeal simply on the basis of that deficiency.

Acts of representatives

[75] Counsel for the appellant made submissions in relation to the operation of the relevant legislation. The structure of the prosecution case was that the defendants were operating in a partnership and as such were agents for each other and so responsible for the acts and omissions of each other, and that the acts carried out by Mr Tayler and Mr Bevan were carried out by them as representatives of the partnership. The relevant provision of the Queensland Building and Construction Commission Act 1991 (“the 1991 Act”), s 111A(3) provides:

“An act done or omitted to be done for a person by a representative of the person within the scope of the representative’s actual or apparent authority is taken to have been done or omitted to be done also by the person, unless the person proves the person could not, by the exercise of reasonable diligence, have prevented the act or omission.”

[76] Subsection (4) defines “representative” as meaning, for an individual “an employee or agent of the individual”. By the Partnership Act 1891 s 8, each partner in a partnership is an agent of the firm and of his or her other partners for the purpose of the business of the partnership. Hence, Mr Troy Knuth was an agent of the appellant and hence a representative of the appellant. Accordingly his acts were by subsection (3) imputed to the appellant to the extent that they were done within the scope of his actual or apparent authority, unless the appellant proved that he could not by the exercise of reasonable diligence have prevented the act or omission.

[77] The provision depends on the representative’s actual authority, which in turn depends on the business of the partnership. The business of the partnership means the actual business of the partnership, which is not necessarily the same as the business that the partnership was lawfully entitled to carry on on the strength of the appellant’s license. There was no specific evidence that the partnership had carried out other reroofing, though the conversation with Mr Hicks, if it did not relate specifically to the customer’s contract, was suggestive of an intention to engage in reroofing generally as part of the partnership business. Further, a number of invoices to the partnership refer to significant work on rooves other than painting. Exhibit 46 is a number of invoices from Jedi Roofing Pty Ltd or Mr Tayler, but as Exhibit 45 shows Mr Bevan was using the name Jedi Roofing for invoices for his work for a time, and there are references to work on rooves in the invoices in Exhibit 46, something which on the evidence Mr Bevan did rather than Mr Tayler.

[78] Some of the charges seem quite modest, though there was an invoice of 11 April 2014 which involved at one site the replacement of 68 linear metres of guttering together with downpipes, a skylight and 9 linear metres of fascia, and on another site replacement of 32 linear metres of guttering, downpipes and some other work. The invoice was over $2,500 and did not include any charge for materials. Within Exhibit 47, which was specifically tendered as invoices from Mr Bevan’s business (p 3-114) there was an invoice for re-sheeting 15 sheets at one particular address where $455 was charged (not including materials), while there was another invoice for re-sheeting the roof, re-screwing and sealing leak points, for which $500 was charged, not said to be including materials. There was another invoice for replacing four sheets and re-screwing, and replacing the ridge and re-screwing, for which $125 was charged, and at another address a “partial reroof” for which $900 was charged, though this was said to be for supply of labour and materials.

[79] Although none of these invoices go so far as to extend to a complete reroof, they certainly indicate that it was an ordinary part of Roofguard’s business to have significant roofing work undertaken for it by Mr Bevan. On the evidence all of this work was charged by Mr Bevan to Roofguard and paid for by Roofguard, so that he was undertaking the work as a subcontractor for Roofguard. The contract to do the work must therefore have been between a customer and Roofguard. In the light of this evidence, it seems to me that the view was clearly open to the Magistrate that it was an ordinary part of Roofguard’s business to do roofing work. If it was an ordinary part of that business, then all of the actions of Mr Troy Knuth in the course of business of Roofguard, including in relation to doing roofing work, were done by him as agent for the appellant pursuant to s 8 of the 1891 Act. The operation of that section of course was subject to the particular terms of the contract between the parties, but on the appellant’s evidence there was no written partnership agreement (p 3-91) and he said he left the day to day running of the business to his brother.[50] Accordingly his brother was his agent for the purpose of the whole of the business, including that part of it which involved doing roofing work.

[80] Even if this evidence did not show that doing the work involved in the contract with the customer was work for the business of the partnership, the effect of the evidence accepted by the magistrate was that doing the roofing work for the customer was within the apparent authority of Mr Troy Knuth. An agent has apparent authority when the agent has such authority as is manifested by the principal to third parties, that is to say, the authority of an agent as it appears to others.[51] This can arise from a situation where there is a specific representation by the principal to the third party of an agent’s authority, or where the principal puts the agent into a particular position, which carries the implication that the agent has the authority which is usual for a person in such a position.[52]

[81] In the present case from the point of view of the customer, Mr Troy Knuth as a partner in the business had the authority which was apparent for a person in the position of a partner in the business which had provided him with a quote for a reroof, whose salesmen had completed and had had him sign a contract for a reroof, which had accepted a payment of a substantial amount of money from him in respect of that reroof, and which then undertook the reroof through its subcontractor, Mr Bevan. In those circumstances, it would have been apparent to the customer that the business of the partnership extended to reroofing, and hence Mr Troy Knuth had apparent authority to engage in reroofing so that his actions were the actions of the appellant pursuant to s 111A, unless the appellant could establish the defence at the end of subsection (3).

[82] The appellant’s ability to do that depended on his evidence being accepted. In circumstances where his evidence was not accepted, that defence was necessarily not established. Indeed, it was apparent from the evidence of Mr Oakley and Mr Bevan that, at least from the point when Mr Oakley was introduced into the process for the purpose of the use of his licence number to obtain the approval and certification of the work, the appellant was well aware of what was going on and was involved in the process. That appeared from the evidence of Mr Oakley, to which I have already referred, coupled with the evidence of Mr Bevan that the appellant was involved in the decision to get Mr Oakley involved: p 2-89. Further, the appellant was present when a payment was made of a large amount of money in cash by the customer. If this was such an unusual situation, it would be very surprising if it did not immediately come to the notice of the appellant. What he said to the investigator on 18 June 2014 was consistent with his being involved in the arrangement with Mr Oakley. At one point during the trial he said he was “aware of the job and [? in] the parameters of my business, but I was not aware of any contract”: p 1-120. In my view the whole of the credible evidence suggests that the appellant was well aware of what was going on from at least this point in the process, and did not then bring it to an end.

[83] Apart from the position as between partners, both Mr Tayler and Mr Bevan were obviously representatives of the partnership, and hence both defendants. Mr Tayler was engaged by the partnership as an independent contractor to provide quotes on behalf of the partnership business to potential customers. So much was uncontroversial. The fact that he was provided with printed quotation forms which contained a place for the quote to the signed indicates that he had at least apparent authority to provide signed quotes, and the fact that he was provided with forms of contract means that he had at least apparent authority to have the customer complete the form of contract, but on the appellant’s own evidence he had actual authority to provide quotes.

[84] The question whether if a person in the position of Mr Tayler, essentially a salesman, would have apparent authority to enter into a written contract with a customer is more doubtful, but he certainly had authority to obtain a written offer to contract in the form of that standard form of contract from the customer and convey it the partnership business. In my opinion if it had not previously been accepted, it was accepted by conduct, by accepting payment under the contract and by arranging for work to be done under it. Accordingly, I entirely agree with the Magistrate’s findings that Mr Tayler was an agent of the partnership and hence it’s representative, and that in providing a quote he was acting within his apparent authority.

[85] With regard to Mr Bevan, the position is similar. He was an agent of the partnership, because he was a person engaged by the partnership routinely as a subcontractor to do work on rooves where the partnership was having work done on rooves as part of its business. It was therefore part of his apparent authority to do work on the roof of a customer of the partnership business in satisfaction of the partnership’s contractual obligations to the customer. Hence the work he did on the customer’s roof was work which was attributable to both of the persons constituting the partnership.[53]

[86] In relation to the two charges under the Domestic Building Contracts Act of 2000 (“the 2000 Act”), there is in s 94 of that Act an identical section to s 111A of the 1991 Act. In this Act however there is a further provision which deals specifically with partnerships: s 96 provides that the Act applies to a partnership as if it were a person, and if an offence against a provision of the Act is taken to have been committed by a partnership it is taken to have been committed by each of the partners, subject however to the partner proving the defence in subsection (5). That subsection makes it a defence for a partner to prove, if the partner was in a position to influence the conduct of the partnership in relation to the offence, that the partner exercised reasonable diligence to ensure the partnership complied with the provision, or that the partner was not in a position to influence the conduct of the partnership in relation to the offence. Again, in the light of the rejection of the appellant’s evidence that defence was necessarily not made out.

[87] The two offences against this Act were demanding and receiving an excessive deposit under the contract, constituted by the first two payments which were made. Plainly the appellant was in a position to influence the conduct of the partnership in relation to these offences: indeed, his own evidence that he was the only one who signed cheques for the partnership, and the indication in the payment docket from the bank which is part of Exhibit 14 that the bank account was actually in his name, shows that he was in an excellent position to keep track of what money was being received by the partnership in respect of different work being undertaken, and in that way to ensure that excessive deposits were not taken. He was involved in engaging Mr Tayler, and in such training as he received, evidently inadequate. In relation to those two offences therefore it is unnecessary to rely on the reasoning referred to above in relation to making the appellant responsible for the acts or omissions of his partner, Mr Troy Knuth. The propositions therefore that Mr Bevan was a representative of the partnership, and hence the appellant, and that therefore his acts in actually doing the reroofing were attributable to the appellant under the provisions to which I have referred, were clearly made out.

There was a contract

[88] I agree with the finding that there was a contract between the customer and the partnership. In my opinion the best indication of who it was who was undertaking the building work for the customer was provided by the money trail. The customer paid the partnership, and everyone who provided goods or services sent invoices to the partnership, demonstrating that they had been engaged by it. In the case of the certifier Incert, the engagement was in writing. There was no suggestion that the money paid by the customer had ever been refunded to him, and after the work was supposedly completed the partnership issued an invoice to him for the balance of the contract price, and some further “extras” which seem to me to be clearly not recoverable. When first challenged about the job, the immediate reaction of Mr Troy Knuth was that there was money outstanding on it, that is in effect, “we are owed money by the customer in respect of this job.”

[89] In these circumstances, the absence of the appellant’s signature on the contract is irrelevant. Mr Tayler had authority to provide quotes on behalf of the partnership. A quote might be an offer, or it might be an invitation to treat, but there is nothing in the terms of the printed form of quotation used by the partnership and provided to Mr Tayler that indicated that the quotations he was giving were simply invitations to treat. On the face of it therefore when the quote was accepted by the customer a contract came into existence between the customer and the partnership.

[90] Even if that was not the situation, the customer also signed a contract which was expressed to be between him and “Roofguard Roof Painting,” that is to say, the partnership. If as the appellant claimed Mr Tayler did not have authority to sign this document on behalf of the partnership,[54] it was at least an offer to the partnership to enter into a contract in terms of it, capable of immediate acceptance by the partnership. Pursuant to the offer the customer made three payments which were accepted by the partnership, and have never been refunded. Further, the partnership arranged for a building permit to be issued,[55] engaged someone to do the actual work; that is the irresistible inference from the fact that the partnership was billed for that work and paid for it. It also paid for the materials.[56] In those circumstances I consider it incontrovertible that, if the offer had not previously been accepted, it was in this way accepted by conduct by the partnership.[57] There was therefore clearly a contract between the customer and the partnership, that is, the defendants, for the defendants to do this work. They were not licensed to do it, but they did do it, through a subcontractor they engaged. The fact that they engaged a subcontractor does not affect their liability: qui facit per alium facit per se.[58]

[91] At one point in submissions it was claimed that the partnership between the defendants was a limited partnership. It was not a limited partnership in the technical sense of being a limited partnership formed under Chapter 3 of the Partnership Act 1891, because there had not been a statement in the approved form registered in the Office of the Chief Executive pursuant to s 50 of the Act. It follows that s 18(1) of the Act was applicable, which provides relevantly:

“An admission or representation made by any partner in a firm... concerning the partnership affairs, and in the ordinary course of its business, is evidence against the firm.”

This provision is applicable in relation to admissions in criminal proceedings, as shown by the analysis by McPherson JA in R v Rhodes & Kissling [1999] QCA 55, particularly at paragraph [4] of his judgment. One of the matters pointed out there was that the expression “evidence against the firm” means evidence against all partners in the business, meaning relevantly that an admission by one of the defendants was also admissible against the other. This of course is confined to a admission in the ordinary course of business, but I have already referred to the scope of the business of the partnership, and to the evidence showing that to some extent at least it extended to roofing work. The fact that this particular job should not have been done by the partnership does not take it out of the ordinary course of its business. It was part of the ordinary course of the business to field complaints from customers and to respond to them, so what Mr Troy Knuth said to the customer was in my opinion an admission which was also evidence against the appellant.

Other matters on the appeal

[92] There were some further matters raised in the submissions on behalf of the appellant about which something should be said. It was submitted that the prosecution was not entitled to impeach the credit of Mr Tayler and Mr Bevan in circumstances where it had called them as witnesses.[59] The prosecution did not need to impeach Mr Tayler’s credit, as counsel for the appellant did it for them, despite the helpful evidence that Mr Tayler gave from the point of view of the defendants. In the course of his cross-examination Mr Tayler admitted that he had previously been convicted for fraud and for stealing in relation to work carried out by Roofguard, as well as for several drug offences over the years.[60] Mr Bevan was also cross-examined in relation to his criminal history. The magistrate was plainly not bound to accept their evidence and if he formed an unfavourable view of them as witnesses, as he evidently did, he was entitled to treat their evidence with caution.

[93] It was suggested that the magistrate had failed to have regard to the fact that the appellant was of good character, having had no previous convictions. That may have been true, but in the circumstances it paled to insignificance in the light of the content of his evidence. It is not a particularly compelling consideration at the best of times[61] and it is entirely unsurprising that the magistrate did not mention this minor factor.

[94] It was submitted that documents showed that it was OO Constructions that was the contractor that performed work at the customer’s premises, relying particularly on Exhibit 16, the certificate of insurance, and the confirmation of insurance Exhibit 23 sent by the certifiers. Apart from the fact that OO Constructions’ name and number was used on the application for the insurance, there was simply no evidence of any dealings between the customer and OO Constructions either directly or indirectly. Mr Oakley admitted that he had made the arrangements for the insurance, after he had agreed with the defendants to do so: p 2-96, 102. OO Constructions was working for Roofguard, as shown by the fact that an invoice was sent to Roofguard in respect of Mr Oakley’s “services”, and paid by it. On the evidence before the magistrate the proposition that OO Constructions was the contractor for the work was fanciful.

[95] The absence of a provision equivalent to s 96 of the 2000 Act in the 1991 Act does not mean that the 1991 Act somehow does not apply to partnerships; a partnership is not an entity having separate legal personality, it is simply a legal relationship producing certain legal consequences as between the individuals involved in the relationship. As well, s 56 of the 2000 Act provides how it applies to a partnership. Both defendants admitted that there was a partnership between them, and in the absence of reliable evidence to the contrary the ordinary inference would be that it was an ordinary partnership with the ordinary incidents of a partnership.

[96] Submissions were addressed on the question of whether Mr Tayler and Mr Bevan were independent contractors or employees; but that was not really an issue in the proceedings. The real question was whether they were acting the scope of their actual or apparent authority. The tests for distinguishing independent contractors from employees had nothing to do with the case. At the trial the prosecution made the submission that Mr Bevan was an employee of Roofguard. There was no evidence of that and indeed the evidence was all to the contrary, that he was an independent contractor, but that may have provided some justification for some discussion of the tests to distinguish between them. Even so, the point was essentially academic, in circumstances where what mattered was whether Mr Bevan was acting within his actual or apparent authority when doing work on the customer’s roof. If he was, the effect of the section was that it was irrelevant whether he was an employee or an independent contractor, because in the latter situation he would be an agent.

[97] Counsel for the appellant was also critical of the reliance by the prosecution on the concept of ratification. Submissions were addressed about this concept to the magistrate on behalf of the prosecution after the trial, but I think it is more helpful to deal with the question of ratification in relation to a particular charge where the issue may be said to be of some significance.

[98] It was submitted that on the first day, when the appellant was not legally represented, evidence was admitted about complaints made by the customer about workmanship undertaken in the course of doing the work. It was submitted that this evidence was irrelevant and prejudicial and should not have been received by the magistrate. In my opinion, so far as the evidence that was led was evidence of communications which occurred between the customer and Mr Troy Knuth, it was relevant because of the significance of the responses given by Mr Troy Knuth in the course of those conversations, and was properly admitted. There was no particular evidence specifically that the workmanship on the roof was defective, though in the course of speaking about the history of the job, and leading evidence from the surveyor about the inspection and certification process, inevitably the fact of deficiencies in the work undertaken was disclosed. None of this evidence was irrelevant: in my view it was all part of the proper narrative of what occurred, to show the continuing involvement of the Roofguard business in the whole process.

[99] The only evidence admitted on the first day which strikes me as being inadmissible was Exhibit 16, which was the complaint form and notification of offence form completed by the customer and provided to QBCC, together with a number of annexures. All of the relevant annexures were proved otherwise by proper evidence, but otherwise it seems to me that this material was inadmissible, though as far as I can see the only use anybody subsequently made of it in the trial was one occasion when it was the basis of a submission made by counsel for the appellant. The appellant was represented on the second day and at that stage no objection was taken by counsel to any of the evidence which had been admitted on the first day. Although a number of witnesses were called and cross-examined on the first day, after the appellant was legally represented two of the witnesses were recalled for further cross-examination at counsel’s request.

[100] It was also submitted that there had been a failure on the part of the magistrate otherwise to render appropriate assistance to the appellant as an unrepresented defendant. On the first day of the hearing, when the appellant was unrepresented, the magistrate explained the process to the appellant, and in particular explained in some detail the process of cross-examination, including that his function was to ask questions rather than make statements or give evidence himself, and the importance of giving the witness the opportunity to comment on any contrary evidence which might be led later. The first of these instructions was persistently ignored by both defendants in their cross-examination on the first day, and there were certainly examples of things not put to witnesses which were later given in evidence, but at least the magistrate tried.

[101] The question of what advice or assistance should be given to an unrepresented defendant has been discussed in various authorities. For present purposes I am content to adopt the formulation of Smith DCJ in Archer v Neuendorf [2014] QDC 91 at [71]. Some of the matters referred to there had not arisen at the time when the appellant became represented, but in other respects I consider the magistrate did comply with the obligations to provide appropriate assistance. The defendants were aware of their ability to object to the admissibility of evidence, and did make a number of objections during the first day, though the objections were advanced on the basis of disagreement with what was being said by the witness, rather than on the basis that the evidence of the witness was inadmissible, so the objections were properly overruled by the magistrate. Nevertheless this shows the appellant was well aware that he had a right to object to the admissibility of evidence. Plainly a litigant in person is not going to have the ability to deal with issues of admissibility of evidence as they would be dealt with by experienced counsel, but nothing useful can be done about that. In my opinion there is no substance to this ground.

Specific offences

[102] The significance of the various matters argued both at trial and on appeal varied somewhat between the different offences with which the defendants were charged. The first charge on the complaint of 14 January 2015 was that on 31 March 2014 the defendants had undertaken to carry out building work without holding a contractor’s licence of the appropriate class under the 1991 Act. This related to the provision of the quotation of 31 March 2014, Exhibit 2. This quote was undoubtedly provided by Mr Tayler to the customer on that day using a quotation form provided to Mr Tayler for his use by the defendants. On its face it was an offer to do the work described in it for the price stated in it. Mr Tayler was a person engaged by the partnership specifically to provide quotes to potential customers, so that the provision of this quote was within his actual, or at least his apparent authority, since he was obviously a person held out to the customer as a person who could provide quotes to him.

[103] Accordingly the defendants, and hence the appellant, were liable in respect of his quote. By this quote they offered to carry out building work, which by the definition in Schedule 2 of the 1991 Act amounted to undertaking to carry out that work. So the appellant was guilty of the offence under s 42 of the 1991 Act, which prohibits a person from undertaking to carry out building work unless holding a contractor’s licence of the appropriate class under the Act. It was not disputed at the trial, and obvious, that the appellant did not hold a licence to carry out the work described in this quote. He was therefore proved to be guilty of this offence, which followed naturally from the finding that Mr Tayler in providing the quote was a representative of the business acting within his apparent authority, and correctly convicted.

[104] Charge 2 alleged that on that day the defendants failed to ensure that an offer to carry out building works was entered into on behalf of the partnership by the licensed contractor, contrary to s 56(1)(a) of the 1991 Act. Section 56(1) permits a licensed contractor to carry on business under the licence in partnership with an unlicensed person, subject to a number of conditions, including in (a) that “no offer ... to carry out building work may be made, on behalf of the partnership except by the licensed contractor.” Subsection (2) of that section makes the contravention of a condition imposed by s 56(1) an offence committed by each member of the partnership.

[105] The practical effect of s 56(1)(a) is that only the licensed contractor can make an offer to carry out building work on behalf of a partnership which includes the licensed contractor; in the context of this business, only the appellant could lawfully quote to do building work on behalf of the partnership. There was no dispute that the work the subject of the quote was building work for the purposes of s 56, and in those circumstances the offence was constituted by the appellant’s failure to ensure that he was the one who made the offer for the partnership to carry out building work, that he was the one who gave the quote. By engaging Mr Tayler, who was not a licensed contractor, to provide quotes on behalf of the partnership he was necessarily failing to ensure that he was the one who provided quotes on behalf of the partnership, and therefore this charge was made out.[62] The difference between charge 1 and charge 2 was that the essence of charge 1 was that Mr Tayler gave a quote which should not have been given, for which the appellant was responsible, whereas the essence of charge 2 was that the appellant failed to ensure that any quote to carry out building work was given by himself rather than by Mr Tayler. He was therefore proved guilty of this offence, and correctly convicted.

[106] Charge 3 alleged that on 22 April 2014 the defendants undertook to carry out building work without holding a contractor’s licence of the appropriate class under the 1991 Act. This charge concerned the provision of the contract of 22 April 2014 by Mr Tayler on behalf of Roofguard to the customer for carrying out a roof replacement on his property.

[107] The argument for the prosecution before the magistrate was that by signing the contract Mr Tayler had undertaken to carry out building work on behalf of the partnership which did not have a contractor’s licence of the appropriate class. This argument was advanced on the basis that the contract was later ratified by the partnership which in that way endorsed Mr Taylor’s actions, but the fact that the contract may have been entered into subsequently by the customer’s offer being accepted by conduct, or by the partnership ratifying Mr Tayler’s purported acceptance, would not mean that the partnership had on the relevant day undertaken to carry out building work for which it did not hold the relevant licence. For the purposes of the law of contract ratification is taken to operate retrospectively,[63] but it does not follow that conduct which was not an offence on 22 April became an offence on that date because of the later ratification of the contract.[64]

[108] Nevertheless, the quote provided on 22 April, Exhibit 3, was just as much an undertaking to carry out building work, in that it was an offer to carry out building work, as the quote provided on 31 March the subject of charge 1, and the evidence before the magistrate showed that the charge was made out by Mr Tayler providing the quote Exhibit 3 on that day. Essentially, the offence was committed on this day for exactly the same reason as the offence was committed by the provision of the earlier quote on the earlier day. It was not necessary to amend the charge in order to convict him, though this matter was outside the prosecution particulars. The appellant was therefore guilty of the charge, though not on the specific basis advanced on behalf of the prosecution. Nevertheless, the appellant was rightly convicted of that charge on the evidence before the magistrate. The magistrate should have amended the particulars, by analogy with the power to amend the charge under the Justices Act 1886 s 48. The fact that he did not do so does not justify allowing the appeal in respect of this charge.

[109] Charge 4 was that on 22 April 2014 the appellant failed to ensure that a contract to carry out building work was entered into on behalf of the partnership by the licensed contractor. This again related to the offence under s 56(1)(a) which also made it a condition for the partnership to carry on business under the appellant’s licence subject to the condition that no contract to carry out building work may be entered into on behalf of the partnership except by the licensed contractor. Again the offence is failing to contract personally, and the fact that Mr Tayler purported to enter a contract meant that the appellant had failed to ensure that a contract to carry out building work was entered into on behalf of the partnership by him. For the reasons I have given previously, I am satisfied that the partnership did enter into a contract, with the customer on the terms of the contract form Exhibit 4. That was not a contract entered into on behalf of the partnership specifically by the appellant, since he did not sign the form. My interpretation of s 56 is that if a contract is entered into to do building work with the partnership and it is not a contract entered into on behalf of the partnership by the licensed contractor personally, then the partners have committed an offence against s 56(2).[65] In those circumstances charge 4 was proved and the appellant was rightly convicted.

[110] Charge 5 alleged that the appellant failed to ensure that a contract to carry out building work entered into on behalf of the partnership was signed by the licensed contractor and had endorsed on it the names of the other members of the partnership. This charge arises from s 56(1)(b) of the 1991 Act, which makes it a further condition of the licensed contractor carrying on business under the licence in partnership with an unlicensed person, that any contract to carry out building work on behalf of the partnership must be signed by the licensed contractor and have endorsed on it the names of the other members of the partnership. Plainly the contract Exhibit 4 was not signed by the appellant, and did not have endorsed on it the name of the other member of the partnership, Mr Troy Knuth. The offence under this section is committed if the partnership does enter into a contract and that contract does not satisfy the requirements of that condition. Plainly there was no contract satisfying the requirements of that condition, so the offence was proved simply by the fact that it was shown that the partnership entered into a contract. The appellant was proved to be guilty of charge 5 and he was correctly convicted of it.

[111] Charge 6 and charge 7 were offences against s 64(1) of the 2000 Act. That section provides that the building contractor under a regulated contract must not, before starting to provide the contracted services, demand or receive a deposit under the contract of more than (relevantly) 10 per cent of the contract price. A regulated contract is defined in s 9(1) of the 2000 Act as a domestic building contract in which the contract price is more than the regulated amount, which by Schedule 2 of that Act is fixed at $3,300. A domestic building contract is by s 7(1)(a) of the Act a contract to carry out domestic building work, that is building work involving renovation, improvement or repair of a home, constituted by residential premises.[66] The customer’s house was a home and accordingly reroofing it constituted domestic building work, so that the contract in the present case was a domestic building contract and s 64(1) applied to it.

[112] Charge 6 related to demanding the deposit, and Charge 7 to receiving the deposit. The maximum permissible deposit in the circumstances with a contract price of $9,900 was $990. The contract form Exhibit 4 as completed by Mr Tayler and presented to the customer for signature provided for a deposit of $3,300, and that was the form which he signed. By that process Mr Tayler “demanded” a deposit of $3,300; there was no particular argument advanced on behalf of the appellant that, if this was something for which the partnership was responsible, it did not amount to a demand for a deposit in excess of the limit, rather the appellant’s case was based on the proposition that he was not responsible for Mr Tayler’s actions.

[113] In the case of this offence, as an offence against the 2000 Act, the prosecution is entitled to rely on s 96, so that it is sufficient to show that Mr Tayler was a person for whose acts the partnership was responsible. If so, the offence is taken to have been committed by each of the partners, relevantly the appellant, and for reasons I have given earlier the defence in s 96(5) was not made out. Section 94 of the 2000 Act made the Act done by a representative, in the present case an agent of the partnership within the scope of the agent’s apparent authority, an act done by the partnership, absent proof that the partnership could not by the exercise of reasonable diligence have prevented the act or omission. Plainly that defence had not been established. It strikes me as obvious that the partnership could by the exercise of reasonable diligence have prevented Mr Tayler from giving quotes which provided for more than a 10 per cent deposit.

[114] The magistrate found that Mr Tayler had apparent authority to complete the contract form and get the customer to sign it, and that indeed was consistent with the fact that he had been provided with forms of contract as part of his sales kit, along with the quote forms, and that it was part of his job to get a customer “signed up”, that is to get a customer willing to accept a quote to sign a contract. The part that was really contentious was whether it was part of his job to sign the contract on behalf of the partnership, but the demand for payment of the deposit was really effected by writing out a form of contract which provided for a deposit of $3,300 and presenting it to the customer to sign. That was something which was within his apparent authority, and accordingly this offence was proved and the appellant was properly convicted.

[115] Charge 7 related to receiving the deposit of $3,300. There was no doubt that the deposit was received; payment was made in two amounts in cash at the office of the partnership, accepted by Ms D Knuth, on one occasion with the active encouragement of the appellant, in circumstances where there was no dispute that it was part of her job, and therefore within her authority, to receive and process any payment made at the office. There is therefore no doubt that the excess deposit was in fact received by the partnership, and the only real issue in relation to this charge was whether there was a contract with the partnership under which the deposit was paid. For reasons I have given elsewhere there was, and accordingly this charge was proved and the appellant was rightly convicted.

[116] Charge 8 alleged that the appellant carried out building work without holding a contractor’s licence of the appropriate class under the 1991 Act. This depends upon the proposition that for the purposes of the 1991 Act the appellant was responsible for the work carried out by Mr Bevan on the customer’s roof. There was necessarily no dispute that the work Mr Bevan did was building work, or that the appellant did not hold the relevant contractor’s licence, and the only issue was whether the appellant was responsible for what Mr Bevan was doing. I have already dealt with that issue. In my opinion on the evidence Mr Bevan was doing work as agent for the partnership, as shown by the fact that he billed the partnership for the work and was paid by the partnership for the work. The effect of s 111A was that the acts done by Mr Bevan are taken to have been done by the appellant, so he was on the evidence guilty of charge 8 and properly convicted of it.

[117] There were two other charges on a separate complaint. Section 68(1) provides that the appropriate insurance premium payable under s 68D for residential construction work must be paid to the Commission by, relevantly, the licensed contractor. Whether work is residential construction work depends on whether it is so classified by regulation as residential construction work. Under the Queensland Building and Construction Commission Regulation that includes primary building work, that is, work for a resident valued at more than $3,300 done by a building contractor. Roofguard was a building contractor because it carried on a business that consisted of or included carrying out building work. Hence, the work was residential construction work for the purposes of s 68(1), and there was an obligation to pay the premium fixed in accordance with s 68D for the work.

[118] Section 68B provides that a licensed contractor who is to carry out residential construction work must pay the insurance premium for the work if the work is carried out under a contract with a consumer and the work is not the subject of a construction management contract. Both the former and the latter requirements were satisfied in the present case; the customer met the definition of a consumer, simply because he was not a building contractor. It followed that as soon as a situation arose where a licensed contractor, relevantly the appellant, was to carry out residential construction work there was an obligation to pay the insurance premium. That arose once the contract between the customer and Roofguard came into existence, and for reasons that I have given elsewhere, such a contract did come into existence on the evidence.

[119] The thrust of the charge here was that Roofguard did not pay the insurance premium; it was paid by OO Constructions, the business associated with Mr Oakley. This was shown by the documentation of the insurance policy, Exhibits 8 and 23, and the fact that the amount which had been paid for the insurance premium was included in the invoice which was ultimately rendered in respect of his services to Roofguard, and paid by Roofguard. Hence, the policy of insurance that was issued was issued on the basis of a premium paid, at least in the first instance, by Mr Oakley, or rather by the business for which he then worked. It was not in the immediate sense paid by Roofguard, though ultimately Roofguard did reimburse a related business for the cost. As I read s 68B, it is concerned with the immediate obligation to pay the insurance premium, and imposes that obligation on the licensed contractor. The scheme of the Act is that it is the licensed contractor who is expected to arrange the insurance, at least when work is being done by a licensed contractor. Hence on the evidence the appellant was proved to be guilty of this charge, and was properly convicted.

[120] The second charge on the second complaint was that the appellant failed to ensure that an advertisement in relation to the business carried on under the licence stated the name under which the licensed contractor was licensed. This related again to s 56 of the 1991 Act, since one of the conditions of a licensed contractor carrying on business in partnership with unlicensed persons was that, by paragraph (c), “any advertisement published in relation to the business carried on ... under the licence must state the name under which the licensed contractor is licensed ... .” The relevant advertisement was a website for Roofguard searched by the investigator from QBCC, a printout of which became Exhibit 29. Manifestly it does not state the name under which the appellant as licensed contractor was licensed.

[121] The proposition advanced by the appellant when cross-examined, that it stated his licence number which was his name, was plainly not correct: the obligation is to state the name under which the licensed contractor is licensed, and Exhibit 31 showed that that was “Jeffrey Alan Knuth”. That name does not appear in the advertisement. Plainly a website published on the internet which advertises a business is an advertisement published in relation to the business for the purposes of s 56(1)(c), and accordingly by failing to ensure that his full name appeared on the website the appellant committed the offence in s 56(2). There was simply no defence to this charge, and he was rightly convicted of it.

Conclusion

[122] It follows that the appellant was rightly convicted of all of the charges brought against him. Insofar as the reasons of the magistrate did not contain the degree of exposition of the relevant statutory provisions that I have set out, it was understandable given that there was no real dispute about the application and operation of most of those statutory provisions. The real issue was whether the appellant was responsible for the acts of Mr Tayler and Mr Bevan. Once those matters were resolved against the appellant, the applicability of the various sections of the Acts followed more or less automatically. In any event, on the evidence I am quite satisfied that the appellant was rightly convicted of all of the charges. The appeal is therefore dismissed. I shall invite submissions in relation to costs of the appeal when these reasons are published.

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^[1] There were two counts on one complaint dated 22 December 2014, and eight counts on a second complaint dated 14 January 2015.

^[2] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [22] – [25]; Rowe v Kemper [2008] QCA 175; [2009] 1 Qd R 247 at [3] – [5]; Commissioner of Police v Al Shakarji [2013] QCA 319 at [7]; Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 at [43], [57]; McDonald v Queensland Police Service [2017] QCA 255 at [47].

^[3] Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at [23]; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at [16]; Walker v Davlyn Homes Pty Ltd [2003] QCA 565 at [9]; Shambayati v Commissioner of Police [2013] QCA 57 at [23]; White v Commissioner of Police [2014] QCA 121 at [8]; McDonald v Queensland Police Service [2017] QCA 255 at [47].

^[4] I shall refer to the person who dealt with the defendants as “the customer”, although “the victim” might be more appropriate. Where it is appropriate to refer to the appellant and his brother together, I shall use the term “the defendants”.

^[5] Tayler, p 1-137.

^[6] Except that the ABN was different, with this ABN corresponding to a partnership between the defendants: Exhibit 39.

^[7] This was the number of the painting and decorating contractor license of the appellant: Exhibit 31.

^[8] Tayler, p 1-137.

^[9] D Knuth, p 3-109; T Knuth, p 4-59; she agreed she issued Exhibit 5. Unhelpfully, Auscript have produced each day’s transcript as “Day 1”. I have corrected the references.

^[10] 22 April 2014 was a Tuesday so this was 26 April 2014.

^[11] Confirmed by Bevan, p 2-55.

^[12] See also Exhibit 14, invoice 723.

^[13] T Knuth denied he was involved in this: p 4-47.

^[14] This was admissible as original evidence. That it was true was proved by other evidence, and indeed was uncontentious.

^[15] T Knuth agreed he sent Exhibit 14 just after the conversation: p 4-45.

^[16] T Knuth, p 4-44, where he also agreed to the date.

^[17] T Knuth admitted he completed this form: p 4-46.

^[18] Mr Hicks confirmed they were his phone and contractor’s license number, but said he did not put them there or authorise their use: p 2-15. T Knuth denied completing this form: p 4-46. The handwriting is strikingly similar to that in Exhibit 20. Tayler said he wrote Hicks’ name and details on the form (p 2-38) for what that was worth.

^[19] The appellant denied it was him: p 3-73.

^[20] Under cross-examination the appellant was not prepared to admit that this was a printout from that website: p 3-45. But he did admit that the website did not have his name on it: p 3-46.

^[21] T Knuth claimed he did not recall this conversation: p 4-60.

^[22] There was then a phone call to the appellant, when the appellant claimed he said he knew nothing of the contract: p 3-78.

^[23] The appellant admitted that this was material for a reroof: p 3-69.

^[24] Mr Bevan said these were in his handwriting: p 2-59, 60.

^[25] After initial evasion, the appellant appeared to admit this conversation: p 3-83, 84.

^[26] This was a reference to Mr Tayler and Mr Bevan.

^[27] The appellant admitted he sent this letter: p 3-85.

^[28] Bevan, p 2-57.

^[29] The appellant said it was in March or April 2014: p 3-33.

^[30] The appellant agreed that this occurred: p 3-33.

^[31] The appellant claimed in evidence that he had in mind setting up a company, and was seeking a nominee builder for it: p 3-33. That was not the tenor of Hicks’ evidence, and was not put to Hicks.

^[32] The appellant said the only people working in the Roofguard office in April 2014 were the defendants and Ms D Knuth: p 3-34.

^[33] This appellant denied this: p 3-87.

^[34] Jedi Roofing, said to be a business name used by Mr Tayler. His invoice was in that name: Exhibit 45. It does not refer to materials for the job.

^[35] The appellant admitted this: p 3-87.

^[36] His evidence appeared to be that this happened the same day on 22 April. See also p 1-146. He said his signing the contract from Exhibit 4 was a mistake: p 2-31.

^[37] The appellant admitted this p 3-87.

^[38] Exhibit 45 shows that a bank account was in the name of the appellant trading as Roofguard Cool Roof, the name of the formed partnership with the wife: Exhibit 42, appellant p 3-10.

^[39] He also said that they had to provide “generally” their own vehicle, which is inconsistent with the documentation showing that a vehicle was provided by Roofguard, though it seems the cost of it was deducted from payments made to them.

^[40] There was evidence that at least in May of 2014, Mr Bevan did not have his own ABN. As a result the invoices for his work were submitted in the name of a business controlled by Mr Tayler: Exhibits 45, 46.

^[41] That was consistent with the evidence of Mr Tayler: p 137. It was not consistent with the evidence of Mr Troy Knuth: p 4-21.

^[42] This was not put to Mr Oakley during cross-examination by the appellant’s counsel.

^[43] The customer agreed that this occurred: p 1-58.

^[44] That part of his evidence is certainly believable.

^[45] The allegation of the contact between the defendants and the QBCC office in Townsville was not put to the investigator from the QBCC who gave evidence, by either the appellant or his counsel.

^[46] She was at the time of the trial married to the appellant, but had not been in early 2014.

^[47] For example at p 4-30, 4-31.

^[48] And the appellant’s evidence that one reason for the partnership was tax purposes: p 3-13.

^[49] Citing Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1995] QCA 187; [1996] 2 Qd R 462 at 484 and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280.

^[50] There was no reliable evidence of any oral terms.

^[51] Bowstead & Reynolds on Agency (20^th Ed, 2014) para 3-001.

^[52] Ibid, para 3-004, p 121. See also para 3-005, where the latter type is called “usual authority”.

^[53] The term “person” in subsection 3 includes the plural: Acts Interpretation Act 1954, s 32C(a).

^[54] Appellant p 3-27.

^[55] This is quite inconsistent with the notion that they believed OO Constructions was to be the builder. Incert was paid by the partnership: T Knuth p 4-46.

^[56] T Knuth p 4-43.

^[57] See the analysis in Orix Australia Corporation Pty Ltd v Peter Donnelly Automotive Pty Ltd [2007] NSWSC 977 at [22] – [24].

^[58] And see the 1991 Act, s 111A.

^[59] Evidence Act 1977, s 17.

^[60] Tayler pp 2-23, 24, 43, 46. He was recalled for the purpose, and so far as I can tell from the transcript, was trying to be as helpful as possible to counsel.

^[61] As John Mortimer had Horace Rumpole say, everyone had no convictions once.

^[62] If, as I suspect, painting a roof is also building work for the purpose of the section, the defendant’s whole business model was contrary to the Act, as all quotes for painting work, said to be the usual work of the partnership, had to be given by the appellant personally.

^[63] Bowstead & Reynolds, op cit, para 2-047.

^[64] Assuming that what occurred later amounted to ratification of Mr Tayler’s unauthorised act in purporting to contract with the customer, rather than accepting the customer’s offer by conduct.

^[65] See also the 2000 Act s 26, another provision with which it appears the appellant did not comply.

^[66] The 2000 Act, s 8(1)(b), 13(1).