McGowen v Commissioner of Fair Trading [2021] NSWCATAD 46

McGowen v Commissioner of Fair Trading [2021] NSWCATAD 46

The Tribunal found that the applicant's total experience, including both commercial and residential work and experience outside the 10-year period referenced in the Instrument, satisfied the statutory requirement for experience. Applying the Instrument inflexibly would result in an injustice. The correct and preferable decision is to set aside the refusal and grant the contractor licence.

Parties
Applicant: Norman Robert McGowen; Respondent: Commissioner for Fair Trading
Jurisdiction
Australia
Judgment Date
02 March 2021
Procedural Posture
Administrative Review / Hearing and Final Determination
Outcome
Application allowed. Decision set aside. Licence granted.
Legal Topics
Home Building, Licensing, Experience Requirements
Administrative Law Building and Construction Home Building Licensing Experience Requirements

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 10 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Norman Robert McGowen

Applicant

Commissioner for Fair Trading

Respondent

Procedural Posture

Administrative Review / Hearing and Final Determination

Legal Issues

  1. 1 Whether the applicant has the necessary industry experience to be granted an individual endorsed contractor licence in 'general building work' under the Home Building Act 1989.
  2. 2 Whether the Tribunal should apply the Instrument on qualification requirements inflexibly or assess experience on a case by case basis.

Ratio Decidendi

The Tribunal found that the applicant's total experience, including both commercial and residential work and experience outside the 10-year period referenced in the Instrument, satisfied the statutory requirement for experience. Applying the Instrument inflexibly would result in an injustice. The correct and preferable decision is to set aside the refusal and grant the contractor licence.

Court Disposition

Application allowed. Decision set aside. Licence granted.

Orders

  • The decision under review is set aside.
  • In substitution for that decision, the Tribunal grants the applicant an individual endorsed contractor licence in the category 'general building work' under the Home Building Act 1989.