Commissioner for Fair Trading v Younan [2016] NSWCATAP 270

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Commissioner for Fair Trading v Younan [2016] NSWCATAP 270 Hearing dates: 1 June 2016, 6 July 2016 Date of orders: 21 December 2016 Decision date: 21 December 2016 Jurisdiction: Appeal Panel Before: P R Callaghan SC, Principal Member J D Harris SC, Senior Member Decision: In respect of the appeal AP 16/09215: (1) The appeal is upheld in respect of the Gosford rectification order and is dismissed in respect of the Manly rectification order. (2) The orders made in the decision under appeal are set aside. (3) The proceedings are remitted to the Occupational Division of this Tribunal for a further review of the Commissioner's decision. (4) That review is to be made on the basis that the Gosford rectification order was valid and effective and that the Manly rectification order was invalid and ineffective, and otherwise in accordance with this decision. (5) Any application by the respondent for costs of this appeal to the extent that they relate to the Manly rectification order is to be made by written submissions filed and served within 21 days after publication of this decision. The appellant may reply to any such application by written submissions filed and served within 21 days after service on the respondent of any such application. The application will then be decided by the Appeal Panel on the papers.

In respect of appeal AP 16/25075: (1) The appeal is upheld. (2) The order made in the decision under appeal is set aside. (3) The issue of costs in the Occupational Division proceedings, including those in proceedings OD 1520194, is remitted to the Occupational Division. (4) Each party is to pay their own costs of the appeal. Catchwords: APPEAL – Civil and Administrative Tribunal – administrative review – disciplinary action under Home Building Act – operation of transitional provisions concerning statutory amendments – sufficiency of rectification order – statutory construction – question of law Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Home Building Act 1989 Cases Cited: Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 Commissioner for Fair Trading v Kassem [2015] NSWCATAP 173 FPM Constructions v Council of the City of Blue Mountains [2005] NSWCA 340 House v R (1936) 55 CLR 499 Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586 Lombard Farms Pty Ltd v Chief Commissioner of State Revenue [2013] NSWADTAP 42 Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355 Texts Cited: Nil Category: Principal judgment Parties: Appellant: Commissioner for Fair Trading Respondent: Wardy Younan Representation: Counsel: Appellant – N Case Respondent – B Johnson, Solicitor