Hayes v NSW Fair Trading [2013] NSWADT 240

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Hayes v NSW Fair Trading [2013] NSWADT 240 Hearing dates: 24 April 2013 Decision date: 29 October 2013 Jurisdiction: General Division Before: P H. Molony, Judicial Member Decision: The decision of the Agency to take disciplinary action against Mr Hayes and to require him to pay a penalty of $1000 is set aside. Catchwords: Home Building - obligations of nominated supervisor for company licensee Legislation Cited: Administrative Decision Tribunal Act 1997 Home Building Act 1989 Cases Cited: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. Category: Principal judgment Parties: Adam Hayes (Applicant) NSW Fair Trading (Respondent) File Number(s): 133029

REasons for decision

Introduction 1Mr Hayes has held a contractor licence (concreting) under the Home Building Act 1989 ('the HBA") since 21 May 2002 until now. A certificate issued by NSW Fair Trading under s 131 of the HBA shows that he was also the nominated supervisor for a company licensee, Perfect Pool Surrounds Pty Ltd ("Perfect Pools"), in the category general concreting, from 1 March 2005 until 1 March 2012. A s 131 certificate is prima facie evidence of its contents. 2Mr Hayes has applied to the Tribunal to review a decision of NSW Fair Trading (the Agency) made on 21 January 2013 (and affirmed when reconsidered on 12 April 2013) finding that he is guilty of improper conduct under s 53(1)(b) of the HBA on that basis he, "as the nominated supervisor for Perfect Pools" breached a statutory warranty in the course of doing residential building work at premises at Bolwarra Heights. 3That breach was constituted by defective work to a pool surround which resulted in the decorative pavers, trim and coping cracking and dislodging. According to a report prepared by Mr Phil Ward, a building inspector with the Agency, on 20 November 2011, the defect was the failure to provide necessary isolation and expansion joints. The Agency found that the defective work constituted a ground to take disciplinary action against Mr Hayes, and decided to require Mr Hayes to pay a penalty of $1,000.00. 4In correspondence with the Agency Mr Hayes denied that he had ever been Perfect Pools nominated supervisor. This was rejected by Fair Trading. 5Section 63 of the Administrative Decision Tribunal Act 1997 (the ADTA) says that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the Commissioner, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.