McGufficke v Commissioner for Fair Trading [2022] NSWCATOD 176

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: McGufficke v Commissioner for Fair Trading [2022] NSWCATOD 176 Hearing dates: 28 February 2022 Date of orders: 11 March 2022 Decision date: 11 March 2022 Jurisdiction: Occupational Division Before: C Mulvey, Senior Member Decision: The decision of the Respondent made on 23 November 2021, is affirmed. Catchwords: ADMINISTRATIVE LAW Owner Building Permit - s32(1A) Home Building Act - special circumstances - dual occupancy Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Home Building Act 1989 Standard Instrument (Local Environmental Plans) Order 2006 Cases Cited: Beadle v Director General of Social Security [1984] AATA 176 Hammoudi v Commissioner for Fair Trading [2016] NSWCATOD 57 Topp and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 99 Davie, T: The Annotated Home Building Act 1989 NSW; 2000 Category: Principal judgment Parties: D McGufficke (Applicant) Commissioner for Fair Trading (Respondent) Representation: Solicitors: Applicant (Self-represented) Department of Customer Service (Respondent) File Number(s): 2021/00358143 Publication restriction: Nil

REASONS FOR DECISION

Background 1. On 21 October 2021, Mr David McGufficke (the Applicant), a licenced builder, lodged with the Commissioner for Fair Trading (the Respondent) an application for an owner-builder permit ("OBP") for construction of a dual occupancy and one into two lot subdivision at a property in Wangi Wangi. On 2 March 2017, the Lake Macquarie City Council granted to the Applicant a Development Consent for that construction. The market value of the OBP under the Home Building Act 1989 ("HBA") was stated to be $200,000. 2. On 25 October 2021, the Respondent issued a Notice of Determination stating that an OBP must not be issued unless the Applicant meets the 'special circumstances' requirement to demonstrate a compelling reason that justifies the issue of the OBP. The Respondent refused to issue the Applicant an OBP in accordance with s32(1A) of the HBA. 3. On 1 November 2021, the Applicant requested the Respondent to internally review its decision. The result of the internal review, which was made on 23 November 2021, affirmed the Respondent's initial decision again to refuse the issue of an OBP. 4. On 17 December 2021, the Applicant filed an application in this Tribunal, seeking administrative review of the Respondent's internal review decision made on 23 November 2021 ("the Reviewable Decision"). 5. The Applicant cites the grounds for his application as being 'unfair reasons for refusal.' In the Applicant's written submissions, he makes allegations of illegal conduct of the Respondent. Those grounds were withdrawn during the hearing. Therefore, the only grounds he seeks the Tribunal to consider is whether there are 'special circumstances' as required by the HBA, which, enables an OBP to be issued to him.