Younan v Commissioner for Fair Trading [2018] NSWCATOD 9

Younan v Commissioner for Fair Trading [2018] NSWCATOD 9

Nazero failed, without reasonable cause, to comply with the Gosford rectification order because the leak was not rectified by the required date and attempting an ineffective remedy was not an excuse; it was Nazero's responsibility to ensure compliance. Mr Younan, as director and office holder with personal knowledge of the leak and the rectification order, did not use all due diligence because he did not adequately pursue identification and effective rectification of the source of the leak or communicate appropriately with the owner or Fair Trading. A reprimand, rather than a monetary penalty, sufficiently served the public interest in relation to the Gosford matter. Special circumstances...

Jurisdiction
Australia
Judgment Date
15 January 2018
Procedural Posture
Application for Review of a Disciplinary Penalty Decision Under the Home Building Act 1989 / Remitted Review in the Occupational Division After Appeal Panel Decision
Outcome
The Commissioner's monetary penalty decision was set aside; Mr Younan was reprimanded for improper conduct in relation to the Gosford rectification order; the Commissioner was ordered to pay Mr Younan's costs only to the extent they related to the Manly rectification order.
Legal Topics
['rectification Orders' 'improper Conduct' 'office Holder Liability' 'due Diligence Defence' 'disciplinary Penalty' 'special Circumstances Costs']
['home Building' 'administrative Review' 'occupational Licensing and Discipline' 'costs'] ['rectification Orders' 'improper Conduct' 'office Holder Liability' 'due Diligence Defence' 'disciplinary Penalty' 'special Circumstances Costs']

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Procedural Posture

Application for Review of a Disciplinary Penalty Decision Under the Home Building Act 1989 / Remitted Review in the Occupational Division After Appeal Panel Decision

Legal Issues

  1. 1 ['Whether Nazero Constructions Pty Ltd failed to comply with the Gosford rectification order without reasonable cause.' 'If Nazero failed to comply with the Gosford rectification order without reasonable cause, what penalty, if any, should apply to Mr Younan in respect of that failure.' 'Whether special circumstances warranted an order for costs of the Occupational Division proceedings.']

Ratio Decidendi

Nazero failed, without reasonable cause, to comply with the Gosford rectification order because the leak was not rectified by the required date and attempting an ineffective remedy was not an excuse; it was Nazero's responsibility to ensure compliance. Mr Younan, as director and office holder with personal knowledge of the leak and the rectification order, did not use all due diligence because he did not adequately pursue identification and effective rectification of the source of the leak or communicate appropriately with the owner or Fair Trading. A reprimand, rather than a monetary penalty, sufficiently served the public interest in relation to the Gosford matter. Special circumstances...

Court Disposition

The Commissioner's monetary penalty decision was set aside; Mr Younan was reprimanded for improper conduct in relation to the Gosford rectification order; the Commissioner was ordered to pay Mr Younan's costs only to the extent they related to the Manly rectification order.

Orders

  • ['The decision made by the Commissioner on 2 September 2015 imposing a monetary penalty on Mr Younan is set aside.' 'The Tribunal substitutes that decision with a determination that Mr Younan, in his capacity as a director, be reprimanded in respect of improper conduct with respect to the failure by Nazero...