Younan v Commissioner for Fair Trading [2016] NSWCATOD 12

Younan v Commissioner for Fair Trading [2016] NSWCATOD 12

The amended s 48F applied to the Manly rectification order because cl 121(1)(d) extended the amendments to the relevant claim or dispute and cl 129 preserved only amendments of s 48E, not s 48F. Accordingly, the Manly rectification order ceased to have effect for the purposes of s 51 when the matter became the subject of a building claim, and the Commissioner could not rely on it for disciplinary action in June 2015. The Gosford order was not a rectification order because it did not specify the steps Nazero was required to take to rectify the defect or damage as required by s 48E(1). Because the Commissioner could not rely on either order, no ground for disciplinary action against the...

Jurisdiction
Australia
Judgment Date
27 January 2016
Procedural Posture
Application for Review of a Decision of the Commissioner for Fair Trading Under S 83 B(3) of the Home Building Act 1989 / Final Determination of Review Application; Costs Application to Be Determined on the Papers
Outcome
The Commissioner's decision was set aside and replaced with a decision that there are no identified grounds for taking disciplinary action against the applicant under s 62 of the Home Building Act 1989.
Legal Topics
['disciplinary Action for Improper Conduct' 'failure to Comply With Rectification Orders' 'effect of Building Claim on Rectification Order' 'savings and Transitional Provisions' 'requirements for a Valid Rectification Order']
['home Building' 'administrative Review' 'statutory Construction' 'occupational Licensing and Discipline'] ['disciplinary Action for Improper Conduct' 'failure to Comply With Rectification Orders' 'effect of Building Claim on Rectification Order' 'savings and Transitional Provisions' 'requirements for a Valid Rectification Order']

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Procedural Posture

Application for Review of a Decision of the Commissioner for Fair Trading Under S 83 B(3) of the Home Building Act 1989 / Final Determination of Review Application; Costs Application to Be Determined on the Papers

Legal Issues

  1. 1 ['Whether the Commissioner could rely on alleged non-compliance with the Manly rectification order as a ground for disciplinary action after the 2015 amendments to s 48F of the Home Building Act 1989.' 'Whether cl 129 of Sch 4 to the Home Building Act 1989 preserved the pre-15 January 2015 version of s 48F for rectification orders made before commencement of the amendments.' 'Whether the Gosford order was a rectification order within the meaning of ss 48B and 48E(1) of the Home Building Act 1989 where it did not specify the steps the contractor had to take.' 'Whether any ground for disciplinary action against the applicant under s 62 of the Home Building Act 1989 had been established.']

Ratio Decidendi

The amended s 48F applied to the Manly rectification order because cl 121(1)(d) extended the amendments to the relevant claim or dispute and cl 129 preserved only amendments of s 48E, not s 48F. Accordingly, the Manly rectification order ceased to have effect for the purposes of s 51 when the matter became the subject of a building claim, and the Commissioner could not rely on it for disciplinary action in June 2015. The Gosford order was not a rectification order because it did not specify the steps Nazero was required to take to rectify the defect or damage as required by s 48E(1). Because the Commissioner could not rely on either order, no ground for disciplinary action against the...

Court Disposition

The Commissioner's decision was set aside and replaced with a decision that there are no identified grounds for taking disciplinary action against the applicant under s 62 of the Home Building Act 1989.

Orders

  • ["The Commissioner's decision is set aside and, in substitution for that decision, the Tribunal decides that there are no identified grounds for taking disciplinary action against the applicant under s 62 of the Home Building Act 1989." "Applicant's application for costs is to be determined on the papers."]