Building Professionals Board v Ball (No 2) (GD) [2009] NSWADTAP 8

Building Professionals Board v Ball (No 2) (GD) [2009] NSWADTAP 8

The appeal panel found that the Board's application against Mr Ball lacked sufficient merit and foreseeability of success, given ambiguity in key regulations and the expert evidence. Mr Ball’s conduct was, at most, a technical breach that was pardonable and not indicative of unsatisfactory professional conduct or professional misconduct. Therefore, there were special circumstances warranting an award of costs to Mr Ball for the first instance proceedings, but no special circumstances justifying a costs order for the appeal itself.

Parties
Appellant: Building Professionals Board; Respondent: Darren Ball
Jurisdiction
Australia
Judgment Date
23 February 2009
Procedural Posture
Disciplinary Appeal / Appeal Determination on Costs
Outcome
Appeal allowed in part; costs order at first instance upheld; no order as to costs of appeal.
Legal Topics
Costs, Accredited Certifiers, Professional Misconduct, Unsatisfactory Professional Conduct, Disciplinary Proceedings
Administrative Law Building and Construction Law Professional Discipline Costs Accredited Certifiers Professional Misconduct Unsatisfactory Professional Conduct Disciplinary Proceedings

Case Brief

Summary, issues, holding and outcome

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Parties

Building Professionals Board

Appellant

Darren Ball

Respondent

Procedural Posture

Disciplinary Appeal / Appeal Determination on Costs

Legal Issues

  1. 1 Whether special circumstances warranted an award of costs against the Building Professionals Board at first instance under s 88(1) of the Administrative Decisions Tribunal Act 1997.
  2. 2 Whether the conduct of the Board in initiating disciplinary proceedings against Mr Ball was sufficiently meritorious to avoid a costs award.
  3. 3 Whether costs of the appeal should be awarded to either party on account of special circumstances.

Ratio Decidendi

The appeal panel found that the Board's application against Mr Ball lacked sufficient merit and foreseeability of success, given ambiguity in key regulations and the expert evidence. Mr Ball’s conduct was, at most, a technical breach that was pardonable and not indicative of unsatisfactory professional conduct or professional misconduct. Therefore, there were special circumstances warranting an award of costs to Mr Ball for the first instance proceedings, but no special circumstances justifying a costs order for the appeal itself.

Court Disposition

Appeal allowed in part; costs order at first instance upheld; no order as to costs of appeal.

Orders

  • Leave granted for the appeal to extend to the merits.
  • Leave granted for the Appellant to adduce further evidence.