Younan v Commissioner for Fair Trading [2018] NSWCATOD 9

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Younan v Commissioner for Fair Trading [2018] NSWCATOD 9 Hearing dates: 10 April 2017 Date of orders: 15 January 2018 Decision date: 15 January 2018 Jurisdiction: Occupational Division Before: K Ransome, Senior Member Decision: 1. The decision made by the Commissioner on 2 September 2015 imposing a monetary penalty on Mr Younan is set aside.

2. The Tribunal substitutes that decision with a determination that Mr Younan, in his capacity as a Director, be reprimanded in respect of improper conduct with respect to the failure by Nazero Constructions Pty Ltd to comply with a rectification order dated 18 August 2014 in relation to residential building work at a unit at premises in Mann Street, Gosford.

3. The respondent is to pay to the applicant the applicant's costs of the proceedings in the Occupational Division to the extent they relate to the Manly rectification order, as agreed or assessed. Catchwords: HOME BUILDING – disciplinary action – whether company of which the applicant was a director failed, without reasonable cause, to comply with a rectification order - whether applicant guilty of improper conduct – what penalty should apply

COSTS – whether special circumstances – respondent acted without jurisdiction in relation to the issuing of a rectification order Legislation Cited: Civil and Administrative Tribunal Act 2013 Home Building Act 1989 Cases Cited: Clyne v NSW Bar Association (1960) 104 CLR 186 Director-General, Department of Fair Trading v Cohen [2000] NSWFTT 3 Harb v Commissioner of Fair Trading [2007] NSWADT 175 Ng v Commissioner for Fair Trading [2007] NSWADT 259 Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 Younan v Commissioner of Fair Trading [2007] NSWADT 170 Category: Principal judgment Parties: Wardy Younan (Applicant) Commissioner for Fair Trading (Respondent) Representation: Solicitors: Sachs Gerace Broome (Applicant) Fair Trading Legal Services (Respondent) File Number(s): 2015/00383877