Pastrovic & Co Pty Limited v Department of Services, Technology and Administration [2012] NSWADT 177

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Pastrovic & Co Pty Limited v Department of Services, Technology and Administration [2012] NSWADT 177 Hearing dates: 30 March 2012 Decision date: 29 August 2012 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: 1. In matter No. 113235 Mr Pastrovic is reprimanded. 2 In matter No. 113236 Pastrovic & Co Pty Ltd is to pay to the Director - General, as a penalty, the amount of $1000. Catchwords: Breach of statutory warranty - improper conduct - defective work - incomplete work - disciplinary action Legislation Cited: Administrative Decisions Tribunal Act 1997 Home Building Act 1989 Cases Cited: Pobjie v Commissioner for Fair Trading, NSW Office of Fair Trading (No 2) [2008] NSWADT 39 Category: Principal judgment Parties: Joseph Pastrovic (Applicant in 113235) Pastrovic & Co Pty Limited (Applicant in 113236) Department of Services, Technology and Administration (Respondent) Representation: MBA Lawyers (Applicants) Department of Finance and Services (Respondent) File Number(s): 113235, 113236

REasons for decision 1GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): Mr Pastrovic is a director and nominated supervisor of Pastrovic & Co Pty Ltd ("the Company"). The Company undertook residential building work at 26 Wilma Avenue, Warrawong New South Wales ("the site"). The Respondent issued show cause notices calling on both Mr Pastrovic and the Company to show cause why disciplinary action should not be taken against them on the ground that they were each guilty of improper conduct under Home Building Act 1989 ("the Act"). 2Section 51(1)(c) of the Act provides that a licensee, and the holder of a supervisor certificate, is "guilty of improper conduct" if they breach a statutory warranty. Section 53(1)(c) provides that the nominated supervisor of residential building work is "guilty of improper conduct" if "a breach of a statutory warranty occurs in the course of doing that work." Section 54(1) provides that an officer of a corporation which is the holder of contractor licence "is guilty of improper conduct if the holder does any of the things referred to in section 51 or 52" of the Act. 3The Respondent subsequently determined that the Company had breached a statutory warranty under section 18B(a) of the Act in respect of work it had undertaken at the site because the work was not performed in a proper and workmanlike manner. It determined that the Company was guilty of improper conduct within section 51(1)(c) of the Act in respect of the breach. The Respondent also determined that Mr Pastrovic, in his capacity as a director and nominated supervisor of the Company, was guilty of improper conduct within sections 54(1) and 53(1)(b) of the Act. 4The decision was taken to take disciplinary action against both the Company and Mr Pastrovic, under section 62(c) of the Act. The Company was required to pay to the Director - General, Department of Services, Technology and Administration ("Director - General"), as a penalty, the amount of $5,000. Mr Pastrovic was required to pay, as a penalty, the amount of $2,000. 5Both the Company and Mr Pastrovic have applied to the Tribunal for review of the determinations and successfully sought a stay of the decisions.