Fair Trading Administration Corporation v Smith [2001] NSWCA 435

New South Wales Court of Appeal

CITATION : Fair Trading Administration Corporation v Smith [2001] NSWCA 435 FILE NUMBER(S) : CA 41056/00 HEARING DATE(S) : 11 September 2001 JUDGMENT DATE : 28 November 2001

PARTIES : Fair Trading Administration Corporation v Anthony James Smith JUDGMENT OF : Priestley JA at 1; Powell JA at 26; Fitzgerald AJA at 27

LOWER COURT JURISDICTION : District Court LOWER COURT DC 8839/99 FILE NUMBER(S) : LOWER COURT Bowden ADCJ JUDICIAL OFFICER :

COUNSEL : Appellant - D.L. Williams Respondent - M. Ashhurst SOLICITORS : Appellant - Abbott Tout Respondent - Conditis & Associates CATCHWORDS : Defective work by building company licensed under Building Services Corporation Act - claim against director of building company - struck out as unmaintanable Building Services Corporation Act 1989 LEGISLATION CITED : Building Services Corporation Legislation Amendment Act 1996 Building Services Corporation Regulation 1990 CASES CITED: Demore Constructions Pty Ltd v Garpace Constructions Pty Ltd [2001] NSWCA 350 DECISION : Dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 41056/00 PRIESTLEY JA POWELL JA FITZGERALD AJA

Wednesday, 28 November 2001 FAIR TRADING ADMINISTRATION CORPORATION v SMITH

Fair Trading Administration Corporation brings action against both a building company licensed under Building Services Corporation Act 1989 and a director of that company to recover the sum paid by the Corporation to claimants under the Corporations Insurance Scheme because of defective work by the building company – claim against director struck out as unmaintainable in light of s 98 of the act – on application for leave to appeal by the corporation, held, leave granted, but on basis that on proper construction of s 98 Corporation could not succeed against director, appeal dismissed with costs. ORDERS Appeal dismissed with costs.