Khan v Commissioner for Fair Trading [2023] NSWCATOD 130

Khan v Commissioner for Fair Trading [2023] NSWCATOD 130

The Applicant failed to establish special circumstances under s32(1A) of the Home Building Act 1989. The existence of development consent for a second dwelling and the classification of the proposal as a dual occupancy did not of themselves amount to special circumstances. The Applicant's assertions about family accommodation needs and financial hardship were not supported by cogent objective evidence, including reliable costings, evidence of family members' circumstances, or adequate financial documentation. Accordingly, the correct and preferable decision was to affirm the Respondent's refusal of the owner-builder permit.

Jurisdiction
Australia
Judgment Date
28 August 2023
Procedural Posture
Administrative Review of an Internal Review Decision Refusing an Owner Builder Permit / Final Decision After Hearing
Outcome
The Respondent's decision made on 25 November 2022 was affirmed.
Legal Topics
['owner Builder Permit' 'dual Occupancy' 'special Circumstances' 'financial Hardship' 'correct and Preferable Decision']
['administrative Law' 'occupational Licensing' 'home Building and Construction Law' 'planning and Development'] ['owner Builder Permit' 'dual Occupancy' 'special Circumstances' 'financial Hardship' 'correct and Preferable Decision']

Case Brief

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Procedural Posture

Administrative Review of an Internal Review Decision Refusing an Owner Builder Permit / Final Decision After Hearing

Legal Issues

  1. 1 ['Whether special circumstances existed under s32(1A) of the Home Building Act 1989 to justify issuing an owner-builder permit for residential building work relating to a dual occupancy.' 'Whether the Applicant established financial hardship or other circumstances sufficient to warrant the grant of an owner-builder permit.' "Whether the correct and preferable decision was to affirm, vary or set aside the Respondent's internal review decision."]

Ratio Decidendi

The Applicant failed to establish special circumstances under s32(1A) of the Home Building Act 1989. The existence of development consent for a second dwelling and the classification of the proposal as a dual occupancy did not of themselves amount to special circumstances. The Applicant's assertions about family accommodation needs and financial hardship were not supported by cogent objective evidence, including reliable costings, evidence of family members' circumstances, or adequate financial documentation. Accordingly, the correct and preferable decision was to affirm the Respondent's refusal of the owner-builder permit.

Court Disposition

The Respondent's decision made on 25 November 2022 was affirmed.

Orders

  • ['The decision of the Respondent made on 25 November 2022, is affirmed.']