Metro Windows Pty Ltd & Ors v Commissioner of Fair Trading (No 2) [2012] NSWADT 232

Metro Windows Pty Ltd & Ors v Commissioner of Fair Trading (No 2) [2012] NSWADT 232

Metro Windows did not breach s 8 of the Home Building Act 1989 because the payment was made after commencement of residential building work, and did not breach the warranty in s 18B(d) as the delays were due to factors outside its control and work was performed with due diligence and within a reasonable time. No evidence supported finding improper conduct by Metro Windows or its officers.

Parties
First Applicant: Metro Windows Pty Ltd; Second Applicant: Stephen Preston; Third Applicant: Adriana Cruz; Respondent: Commissioner of Fair Trading
Jurisdiction
Australia
Judgment Date
08 November 2012
Procedural Posture
Administrative Review / Substantive Hearing on Remittal
Outcome
Decision under review set aside.
Legal Topics
Residential Building Work, Statutory Warranties, Deposits, Due Diligence, Improper Conduct, Jurisdiction of Tribunal, Disciplinary Action
Administrative Law Building and Construction Law Residential Building Work Statutory Warranties Deposits Due Diligence Improper Conduct Jurisdiction of Tribunal +1 more

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Parties

Metro Windows Pty Ltd

First Applicant

Stephen Preston

Second Applicant

Adriana Cruz

Third Applicant

Commissioner of Fair Trading

Respondent

Procedural Posture

Administrative Review / Substantive Hearing on Remittal

Legal Issues

  1. 1 Whether Metro Windows demanded and received a payment before work commenced in breach of s 8 of the Home Building Act 1989.
  2. 2 Whether Metro Windows failed to do the work with due diligence and within a reasonable time, breaching the statutory warranty in s 18B(d) of the Home Building Act 1989.
  3. 3 If Metro Windows breached statutory warranty, whether Ms Cruz and Mr Preston are guilty of improper conduct.

Ratio Decidendi

Metro Windows did not breach s 8 of the Home Building Act 1989 because the payment was made after commencement of residential building work, and did not breach the warranty in s 18B(d) as the delays were due to factors outside its control and work was performed with due diligence and within a reasonable time. No evidence supported finding improper conduct by Metro Windows or its officers.

Court Disposition

Decision under review set aside.

Orders

  • Set aside the decision under review.
  • Applicants may make an application for costs within 28 days and file and serve submissions (not to exceed 4000 words).