Younan v Commissioner for Fair Trading [2016] NSWCATOD 12

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Younan v Commissioner for Fair Trading [2016] NSWCATOD 12 Hearing dates: 27 January 2016 Date of orders: 27 January 2016 Decision date: 27 January 2016 Jurisdiction: Occupational Division Before: J Lucy - Senior Member Decision: 1. The Commissioner's decision is set aside and, in substitution for that decision, the Tribunal decides that there are no identified grounds for taking disciplinary action against the applicant under s 62 of the Home Building Act 1989. 2. Applicant's application for costs is to be determined on the papers. Catchwords: HOME BUILDING – Disciplinary action – Whether applicant guilty of improper conduct – Whether company of which applicant was a director failed, without reasonable cause, to comply with the requirements of two rectification orders STATUTORY CONSTRUCTION –Amendment to s 48F which provides for when a rectification order ceases to have effect - Savings and transitional provisions – Whether a rectification order, made before 2015, ceases to have effect after the 2015 amendments to the Home Building Act, where the matter giving rise to the order became the subject of a building claim after the date for compliance with the order – Whether the Commissioner may take disciplinary action in respect of non-compliance with such an order – Finding that rectification order ceases to have effect and Commissioner may not take disciplinary action in respect of failure to comply with it STATUTORY CONSTRUCTION – Whether an order purporting to require a contractor to remedy a defect which does not specify the steps the contractor must take is a "rectification order" – Whether the Commissioner may take disciplinary action in respect of a failure to comply with such an order – Finding that such an order is not a "rectification order" and that non-compliance with such an order is not a ground for the taking of disciplinary action Legislation Cited: Home Building Act 1989 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Administrative Decisions Review Act 1997 (NSW) Home Building Amendment Act 2014 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Cases Cited: Rylands Bros (Australia) Ltd v Morgan (1927) 27 SR (NSW) 161 Gittany Constructions P/L v Director General, Department of Services Technology and Administration [2010] NSWADT 164 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 Category: Principal judgment Parties: Wardy Younan (Applicant) Commissioner for Fair Trading (Respondent) Representation: Solicitors: Sachs Gerace Lawyers (Applicant) NSW Government – Finance, Services and Innovation (Respondent) File Number(s): 1520194