Alford Building & Construction Pty Ltd v Commissioner for Fair Trading [2005] NSWADT 254

Alford Building & Construction Pty Ltd v Commissioner for Fair Trading [2005] NSWADT 254

Clause 25(1)(a)(xii) of the Home Building Regulation 2004 was not ultra vires and was consistent with the Home Building Act 1989. It precluded the granting of the licence because Mr Sharpe was a director of a company that had been wound up, and there was no evidence on which to conclude that the clause 26 discretion should be exercised. The correct and preferable decision was therefore to refuse the application.

Jurisdiction
Australia
Judgment Date
15 November 2005
Procedural Posture
Administrative Review of Refusal to Grant a Contractor Licence Under the Home Building Act 1989 / Principal Matter
Outcome
The decision under review is affirmed.
Legal Topics
['contractor Licence Application' 'fit and Proper Person Requirement' 'company Director and Winding Up' 'validity of Delegated Legislation' 'clause 26 Discretion']
['administrative Law' 'home Building Licensing'] ['contractor Licence Application' 'fit and Proper Person Requirement' 'company Director and Winding Up' 'validity of Delegated Legislation' 'clause 26 Discretion']

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Procedural Posture

Administrative Review of Refusal to Grant a Contractor Licence Under the Home Building Act 1989 / Principal Matter

Legal Issues

  1. 1 ['Whether clause 25(1)(a)(xii) of the Home Building Regulation 2004 was ultra vires and incapable of preventing the issue of the contractor licence.' 'Whether clause 25(1)(a)(xii) applied where KS Construction Pty Limited was voluntarily wound up.' 'Whether the Commissioner or Tribunal should exercise the discretion in clause 26 of the Home Building Regulation 2004 to issue the licence despite clause 25(1)(a)(xii).' 'Whether the Commissioner could be satisfied that the sole director of the applicant was a fit and proper person and otherwise of good character.']

Ratio Decidendi

Clause 25(1)(a)(xii) of the Home Building Regulation 2004 was not ultra vires and was consistent with the Home Building Act 1989. It precluded the granting of the licence because Mr Sharpe was a director of a company that had been wound up, and there was no evidence on which to conclude that the clause 26 discretion should be exercised. The correct and preferable decision was therefore to refuse the application.

Court Disposition

The decision under review is affirmed.

Orders

  • ['The decision under review is affirmed.']