Tom v Commissioner of Fair Trading [2022] NSWCATOD 130

Tom v Commissioner of Fair Trading [2022] NSWCATOD 130

The Tribunal granted interim relief because the Builder had an arguable case on the substantive review, the evidence relied on for cancellation had not yet been tested, cancellation would cause financial and practical consequences for the Builder, clients and subcontractors, and the Tribunal was not satisfied that treating the licence as on foot until final determination would prejudice the public interest. The Tribunal held that s 60(2) of the Administrative Decisions Review Act 1997 was broad enough to permit retrospective temporary restoration of the licence and that, given existing contracts on foot, the order should take effect from 10 March 2022 without conditions.

Jurisdiction
Australia
Judgment Date
21 April 2022
Procedural Posture
Administrative Review of a Decision to Cancel a Contractor Licence and Disqualify a Licence Holder Under the Home Building Act 1989; Interlocutory Application for Interim Orders Under S 60 of the Administrative Decisions Review Act 1997 / Interlocutory Application for Stay or Interim Order Pending Final Determination of the Substantive Review Application
Outcome
Interim order granted; the Builder's contractor licence is treated as on foot retrospectively from 10 March 2022 until final determination of the substantive application.
Legal Topics
['review of External Decision Maker Decision' 'cancellation of Contractor Licence' 'disqualification of Licence Holder' 'interim Orders' 'retrospective Reinstatement of Licence' 'public Interest' 'prospects of Success']
['administrative Law' 'practice and Procedure' 'home Building Licensing'] ['review of External Decision Maker Decision' 'cancellation of Contractor Licence' 'disqualification of Licence Holder' 'interim Orders' 'retrospective Reinstatement of Licence' 'public Interest' 'prospects of Success']

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Procedural Posture

Administrative Review of a Decision to Cancel a Contractor Licence and Disqualify a Licence Holder Under the Home Building Act 1989; Interlocutory Application for Interim Orders Under S 60 of the Administrative Decisions Review Act 1997 / Interlocutory Application for Stay or Interim Order Pending Final Determination of the Substantive Review Application

Legal Issues

  1. 1 ["Whether the Tribunal should make an interim order treating the Builder's contractor licence as on foot pending final determination of the substantive application." 'Whether s 60(2) of the Administrative Decisions Review Act 1997 is broad enough to allow reinstatement of a cancelled licence with retrospective effect from 10 March 2022.' "Whether the applicant had an arguable case on review and whether the public interest, affected persons and the Commissioner's submissions favoured or opposed interim relief." 'Whether any interim order should be subject to conditions.']

Ratio Decidendi

The Tribunal granted interim relief because the Builder had an arguable case on the substantive review, the evidence relied on for cancellation had not yet been tested, cancellation would cause financial and practical consequences for the Builder, clients and subcontractors, and the Tribunal was not satisfied that treating the licence as on foot until final determination would prejudice the public interest. The Tribunal held that s 60(2) of the Administrative Decisions Review Act 1997 was broad enough to permit retrospective temporary restoration of the licence and that, given existing contracts on foot, the order should take effect from 10 March 2022 without conditions.

Court Disposition

Interim order granted; the Builder's contractor licence is treated as on foot retrospectively from 10 March 2022 until final determination of the substantive application.

Orders

  • ["The builder's licence (contractor Licence No 92385C) for all purposes is treated as on foot from 10 March 2022 until the final determination of the substantive application by the Tribunal in these proceedings."]