Service Today (NSW) Pty Ltd (now known as Georges River Holdings Pty Ltd) & Magerovski v Commissioner for Fair Trading [2019] NSWCATAP 113

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Service Today (NSW) Pty Ltd (now known as Georges River Holdings Pty Ltd) & Magerovski v Commissioner for Fair Trading [2019] NSWCATAP 113 Hearing dates: 23 November 2018 Date of orders: 02 May 2019 Decision date: 02 May 2019 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President M Harrowell, Principal Member Decision: (1) Except as provided in Order 2, leave to appeal is refused and the appeals are dismissed; (2) Order 2 (b) made in the proceedings under appeal is affirmed insofar as it cancels the contractor's licence of Service Today (NSW) (but with the intent that its effect will be stayed in accordance with Order 3 below) and is set aside insofar as it disqualifies that company for one year; (3) The stay on the operation of the orders the subject of this appeal is lifted effective from the date which is two months from the date on which this decision is published; (4) Any party seeking a costs order must file and serve their submissions within 14 days; (5) If a party complies with order (4) above, any other party may file and serve submissions in response within 14 days thereafter; and (6) The submissions should address the question of whether the Tribunal may dispense with a hearing and decide costs on the papers in accordance with s 50 of the Civil and Administrative Tribunal Act 2013. Catchwords: ADMISTRATIVE LAW – review of decision to cancel licenses under the Home Building Act, 1989 – denial of procedural fairness – review of answers given to show cause notice – use of subsequent evidence to demonstrate answers false or misleading – penalty – reference to cases – parity principle. Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1990 (NSW) Home Building Act, 1989 (NSW) Licencing and Registration (Uniform Procedures) Act 2002 (NSW) Licensing and Regulation (Uniform Procedures) Act 2002 (NSW) Cases Cited: Aria Jap International Pty Ltd v Commissioner for Fair Trading, Office of Fair Trading [2006] NSWADT 166 Assadourian v Roads and Traffic Authority [2013] NSWADT 6 Browne v Dunn (1893) 6 R 67 Champion Homes Sales Pty Ltd v Commissioner for Fair Trading [2018] NSWCATAP 18 Collins v Urban [2014] NSWCATAP 17 Edward Lees Imports Pty Ltd v Commissioner for Fair Trading (No 3) [2018] NSWCATOD 116 Flanagan v Commissioner of Fair Trading [2004] NSWADT 166 House v R [1936] HCA 40; (1936) 55 CLR 499 Hughes and Vale Pty Ltd v New South Wales (No 2) - [1955] HCA 28; (1955) 93 CLR 127 Lowe v R [1984] HCA 46; (1984) 154 CLR 606 Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 R (on the application of Spencer) v City of Westminster Magistrates Court [2017] EWHC 3603 Re Percival and Australian Securities Commission [1993] AATA 196; (1993) 30 ALD 280 Spencer v City of Westminster Magistrates' Court[2017] EWHC 3603 Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105 Texts Cited: Nil Category: Principal judgment Parties: AP 18/38540 Alan Magerovski (Appellant) Commissioner for Fair Trading (Respondent)