Borovina v Commissioner for Fair Trading (GD) [2007] NSWADTAP 44

Borovina v Commissioner for Fair Trading (GD) [2007] NSWADTAP 44

Although the Tribunal erred by making a positive finding that the appellant was aware false information was being submitted when he had not been called to give evidence before the Tribunal, the remaining material strongly supported the conclusion that he was not a fit and proper person to hold a contractor licence. The payment of $20,000 to a person found by ICAC to be involved in a licensing racket and the appellant's indifference to licensing obligations were relevant considerations. A subcontractor-only condition would be inconsistent with the New South Wales licensing scheme. The identified error did not cause substantial injustice and leave to extend the appeal to the merits was...

Jurisdiction
Australia
Judgment Date
27 August 2007
Procedural Posture
Appeal Concerning Refusal of Contractor Licence Under the Home Building Act 1989 / Appeal Panel From Administrative Decisions Tribunal Decision Dismissing Application for Review
Outcome
Appeal dismissed
Legal Topics
['contractor Licence Refusal' 'fit and Proper Person' 'relevant Considerations' 'conditional Licence' 'icac Findings' 'briginshaw Standard' 'unlicensed Subcontracting']
['administrative Law' 'home Building Licensing' 'occupational Licensing'] ['contractor Licence Refusal' 'fit and Proper Person' 'relevant Considerations' 'conditional Licence' 'icac Findings' 'briginshaw Standard' 'unlicensed Subcontracting']

Case Brief

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Procedural Posture

Appeal Concerning Refusal of Contractor Licence Under the Home Building Act 1989 / Appeal Panel From Administrative Decisions Tribunal Decision Dismissing Application for Review

Legal Issues

  1. 1 ['Whether the Tribunal erred in concluding that the appellant was not a fit and proper person to hold a contractor licence.' 'Whether the Tribunal erred by making a finding that the appellant was aware false information was being submitted in circumstances where he was not called to give evidence before the Tribunal.' "Whether the appellant's prior unlicensed subcontracting and payment of $20,000 to Mr Aboulhosn were relevant considerations in assessing fitness and character." "Whether any concern about the appellant's fitness could be addressed by granting a contractor licence conditioned to subcontracting work only." 'Whether leave should be granted to extend the appeal to the merits under s 113 of the Administrative Decisions Tribunal Act 1997.']

Ratio Decidendi

Although the Tribunal erred by making a positive finding that the appellant was aware false information was being submitted when he had not been called to give evidence before the Tribunal, the remaining material strongly supported the conclusion that he was not a fit and proper person to hold a contractor licence. The payment of $20,000 to a person found by ICAC to be involved in a licensing racket and the appellant's indifference to licensing obligations were relevant considerations. A subcontractor-only condition would be inconsistent with the New South Wales licensing scheme. The identified error did not cause substantial injustice and leave to extend the appeal to the merits was...

Court Disposition

Appeal dismissed

Orders

  • ['Appeal dismissed.']