Designbuild NSW Pty Ltd v Commissioner for Fair Trading [2016] NSWCATOD 69

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Designbuild NSW Pty Ltd v Commissioner for Fair Trading [2016] NSWCATOD 69 Hearing dates: 1 April 2016 Date of orders: 27 May 2016 Decision date: 27 May 2016 Jurisdiction: Occupational Division Before: A Scahill, Senior Member Decision: Respondent's decision set aside Catchwords: Fit and proper; close associate; nominated supervisor Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Evidence Act 1995 Home Building Act 1989 Cases Cited: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 Sobey v Commercial and Private Agents Board (1979) 20 SASR 70 Valdecon Group Builders & Developers Pty Ltd v Commissioner for Fair Trading, Office of Finance and Services [2015] NSWCATOD 147 Category: Principal judgment Parties: Designbuild NSW Pty Ltd (Applicant) Commissioner for Fair Trading (Respondent) Representation: Solicitors: Hinde & Ginges Solicitors (Applicant) Commissioner for Fair Trading (Respondent in person) File Number(s): 1520148

Reasons for decision

WHAT THE TRIBUNAL DECIDED 1. The Tribunal set aside the Respondent's decision.

Background 1. On 9 March 2015 Designbuild New South Wales Pty Ltd (Designbuild) lodged an application with the Department of Fair Trading for a company building contractor licence. The application, signed by James Coote on 5 March 2015, stated that the director of the company would be James Frederick Coote, born 6 January 1992 and the nominated qualified supervisor would be John Alfred Coote, builder licence number 55586S, born 15th of June 1965. 2. The application was refused on 4 May 2015 because Mr John Coote had been nominated as the nominated supervisor for Designbuild. On 4 April 2014, John Coote's application for an individual building contractor licence had been refused as John Coote was deemed not fit and proper person to hold a contractor licence in regards to character, honesty and integrity. In the application form for the contractor licence, Mr Coote had failed to disclose that he was a director of Nationwide Consultants Pty Limited (licence number 39269). On 21 February 2013, CTTT made an order against Nationwide Consultants Pty Limited (Nationwide) that had not been complied with. The proposed nominated supervisor John Coote was a close associate of Designbuild. The decision noted that the Chief Executive must refuse an application for a contractor licence if the Chief Executive considers that a close associate of the Applicant who would not be a fit and proper person to hold an authority exercises a significant influence over the Applicant or the operation and management of the Applicant's business. (See section 20 (1) (d) of the Home Building Act (HBA) 1989. 3. Designbuild NSW Pty Ltd had been registered on the 24th of February 2015 with ASIC. The director and secretary were registered as James Coote. The shareholders were registered as James Coote, one share and John Coote, one share.