Borovina v Commissioner for Fair Trading - [2007] NSWADT 80

CITATION: Borovina v Commissioner for Fair Trading [2007] NSWADT 80

DIVISION: General Division

PARTIES: APPLICANT
Slavisa Borovina
RESPONDENT
Commissioner for Fair Trading

FILE NUMBER: 063312

HEARING DATES: 8 February 2007

SUBMISSIONS CLOSED: 8 February 2007

DATE OF DECISION:
5 April 2007

BEFORE: Molony P - Judicial Member

CATCHWORDS: Home Builder - issue of contractor licence - Home Building Act - home builder - issue of contractor licence

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Home Building Act 1989
Home Building Regulation 2004

CASES CITED: Australasian Concrete Services v Multiplex Constructions [1999] NSWSC 1140
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Bejjani v Commissioner for Fair Trading [2004] NSWADT 262
Briginshaw v Briginshaw (1938) 60 CLR 336
Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 25
Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589
De More v Garpace [2001] NSWCA 350
Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Ex Parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448
Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127
Melbourne v The Queen [1999] 198 CLR 1
Obradovic -v- Commissioner for Fair Trading, Office of Fair Trading (GD) [2006] NSWADTAP 18
Raymond Robbins v Business Licensing Authority (2000) VCAT 457
Re Brennan & Australian Casino Surveillance Authority (1995) 38 ALD 794
Re Percival and Australian Securities Commission (1993) 30 ALD 280
Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392
Sobey v Commercial and Private Agents Board 20 SASR 70
Tomoski Developments Pty Ltd v Commissioner of Fair Trading [2005] NSWADT 263
Ziems v Prothonatory of the Supreme Court of NSW (1957) 97 CLR 279

REPRESENTATION:
APPLICANT
T Davie, Counsel
RESPONDENT
V Griswald, Solicitor

ORDERS: The Commissioner's decision to refuse Mr Boronvina's application for a contractor licence (carpenter) is affirmed

Background

1 Mr Borovina is a 40 year old man of Bosnian origin who came to Australia in 1988. He has worked in the building industry throughout his life in various capacities. Since his arrival in Australia, he has worked primarily as a sub-contract carpenter. He has never held a licence under the Home Building Act1989.

2 In 2001 Mr Borovina made an application for a contractor licence. It is not clear whether that was for a full contractor licence or for one in the category carpenter. In his statement, filed in this proceeding, Mr Borovina explained that he did not proceed with that application, “as the Department wanted so much information that I that I had no time to chase around.”

3 On 10 November 2003 Mr Borovina lodged an application with the Office of Fair Trading for a contractor licence under the Act.

4 In his statement Mr Borovina explained that he was assisted in preparing that application by a man called Fausi Aboulhosn. Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWADT 80
Decision Date: 5 April 2007

CaseChat Overview and Summary

The case of Borovina v Commissioner for Fair Trading involved a dispute over the refusal by the Commissioner for Fair Trading to issue a contractor licence to Mr Boronvina. Mr Boronvina, a carpenter, had applied for a licence under the Home Building Act, but the Commissioner had refused his application. The dispute was brought before the court to determine whether the Commissioner's decision was lawful and justified.

The central legal issues before the court were whether the Commissioner had correctly applied the criteria set out in the Home Building Act when making the decision to refuse the licence and whether the decision was supported by sufficient evidence. The court had to consider whether the Commissioner had acted within their statutory powers and whether the decision was reasonable in the circumstances.

In considering these issues, the court examined the statutory framework provided by the Home Building Act and the specific criteria that the Commissioner must apply when deciding on licence applications. The court also reviewed the evidence and reasoning provided by the Commissioner in support of the decision. After careful analysis, the court found that the Commissioner had correctly applied the statutory criteria and that the evidence supported the decision. The court held that the Commissioner's decision to refuse Mr Boronvina's application for a contractor licence was lawful and reasonable.

Accordingly, the court affirmed the Commissioner's decision. The court found no error in the Commissioner's process or decision, and upheld the refusal of the licence application. The final orders of the court confirmed the affirmation of the Commissioner's decision to refuse Mr Boronvina's application for a contractor licence.

Orders

Orders of the court

The Commissioner's decision to refuse Mr Boronvina's application for a contractor licence (carpenter) is affirmed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Borovina v Commissioner for Fair Trading [2007] NSWADT 80
DIVISION:	General Division
PARTIES:	APPLICANT Slavisa Borovina RESPONDENT Commissioner for Fair Trading
FILE NUMBER:	063312
HEARING DATES:	8 February 2007
SUBMISSIONS CLOSED:	8 February 2007
DATE OF DECISION:	5 April 2007
BEFORE:	Molony P - Judicial Member
CATCHWORDS:	Home Builder - issue of contractor licence - Home Building Act - home builder - issue of contractor licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Home Building Act 1989 Home Building Regulation 2004
CASES CITED:	Australasian Concrete Services v Multiplex Constructions [1999] NSWSC 1140 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Bejjani v Commissioner for Fair Trading [2004] NSWADT 262 Briginshaw v Briginshaw (1938) 60 CLR 336 Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 25 Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 De More v Garpace [2001] NSWCA 350 Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 Ex Parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 Melbourne v The Queen [1999] 198 CLR 1 Obradovic -v- Commissioner for Fair Trading, Office of Fair Trading (GD) [2006] NSWADTAP 18 Raymond Robbins v Business Licensing Authority (2000) VCAT 457 Re Brennan & Australian Casino Surveillance Authority (1995) 38 ALD 794 Re Percival and Australian Securities Commission (1993) 30 ALD 280 Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 Sobey v Commercial and Private Agents Board 20 SASR 70 Tomoski Developments Pty Ltd v Commissioner of Fair Trading [2005] NSWADT 263 Ziems v Prothonatory of the Supreme Court of NSW (1957) 97 CLR 279
REPRESENTATION:	APPLICANT T Davie, Counsel RESPONDENT V Griswald, Solicitor
ORDERS:	The Commissioner's decision to refuse Mr Boronvina's application for a contractor licence (carpenter) is affirmed