Champion Homes Sales Pty Ltd v Commissioner for Fair Trading [2018] NSWCATOD 114

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Champion Homes Sales Pty Ltd v Commissioner for Fair Trading [2018] NSWCATOD 114 Hearing dates: 07 May 2018 Date of orders: 19 July 2018 Decision date: 19 July 2018 Jurisdiction: Occupational Division Before: Dr J Lucy, Senior Member Decision: (1) The respondent's decision to require the applicant to pay to the respondent, as a penalty, an amount of $3,000, is affirmed. Catchwords: ADMINISTRATIVE REVIEW – Home Building – Disciplinary action – Where respondent imposed fine on applicant in respect of breaches of statutory warranty to exercise due care and skill – Whether different standards of liability should apply in proceedings for breach of warranty and in disciplinary proceedings Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Home Building Act 1 989 (NSW) Home Building Regulation 2014 (NSW) Cases Cited: Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 Queensland v Forrest [2008] FCAFC 96; (2008) 168 FCR 532 Category: Principal judgment Parties: Champion Homes Sales Pty Ltd (Applicant) Department of Fair Trading(Respondent) Representation: Solicitors: Kedron Legal (Applicant) Department of Finance, Services and Innovation (Respondent) File Number(s): 2017/00339182

REASONS FOR DECISION 1. This was an application for review of a decision of the respondent ("the Commissioner") to impose a fine of $3,000 on the applicant ("the builder") for breaching the statutory warranty that work be done with due care and skill, on two occasions. 2. The builder argued that it should not be held responsible for failures in waterproofing, when it had engaged a licensed waterproofer. It also argued that the legislation should not be interpreted so as to impose strict liability upon a builder for the work of others, when applying the disciplinary provisions. 3. I found that a breach of a statutory warranty has a consistent meaning throughout the home building legislation. There is no justification for taking a more lenient approach to the question of whether a warranty has been breached in the disciplinary context. I also found that the builder breached the warranty as the Commissioner contended. 4. For these reasons, I decided to affirm the Commissioner's decision.