BUILDERS' REGISTRATION BOARD and ONGAREZOS [2006] WASAT 53

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2006] WASAT 53
Act:	BUILDERS' REGISTRATION ACT 1939 (WA)
Case No:	VR:323/2005	Heard:	22 FEBRUARY 2005
Coram:	JUDGE J CHANEY (DEPUTY PRESIDENT) DR B DE VILLIERS (MEMBER) MR J BRAY (SESSIONAL MEMBER)	Delivered:	8/03/06
No of pages:	14	Judgment Part:	1 of 1
Result:	Respondent found to have engaged in misleading conduct fine imposed
Category:	B
PDF Version

Parties:	BUILDERS' REGISTRATION BOARD GEORGE ONGAREZOS
Catchwords:	Builders Disciplinary proceedings Fraudulent or misleading or deceptive conduct Misrepresentation as to registration of company Misrepresentation as to identity of builder Representations unintentional Whether intention an element of misleading conduct for purpose of Builders' Registration Act 1939 (WA) Words and phrases "Fraudulent conduct" "Misleading or deceptive"
Legislation:	Builders' Registration Act 1939 (WA), s 12D, s 13, s 13(d), s 13(1), s 13(1)(d), s 13(1)(da), s 13A, s 10A, s 10B, s 10C Builders' Registration Regulations (WA), r 21 Building Legislation Amendment Act 2000 (WA) Fair Trading Act 1987 (WA), s 10, s 69 Trade Practices Act 1974 (Cth), s 52, s 79(1)
Case References:	Briginshaw v Briginshaw (1938) 60 CLR 336 Cambridge Building Co Pty Ltd v Builders' Registration Board of Western Australian (2000) 25 SR (WA) 21 Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191-197 Nil
Orders	1. The respondent is fined $3000.,2. The respondent is to pay a portion of the applicant's costs fixed at $1000.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : BUILDERS' REGISTRATION ACT 1939 (WA) CITATION : BUILDERS' REGISTRATION BOARD and ONGAREZOS [2006] WASAT 53 MEMBER : JUDGE J CHANEY (DEPUTY PRESIDENT)

DR B DE VILLIERS (MEMBER)

MR J BRAY (SESSIONAL MEMBER)

HEARD : 22 FEBRUARY 2005 DELIVERED : 8 MARCH 2006 FILE NO/S : VR 323 of 2005 BETWEEN : BUILDERS' REGISTRATION BOARD

Applicant

AND

GEORGE ONGAREZOS

Respondent

Catchwords:

Builders Disciplinary proceedings Fraudulent or misleading or deceptive conduct Misrepresentation as to registration of company Misrepresentation as to identity of builder Representations unintentional Whether intention an element of misleading conduct for purpose of Builders' Registration Act 1939 (WA)

Words and phrases "Fraudulent conduct" "Misleading or deceptive"

(Page 2)

Legislation:

Builders' Registration Act 1939 (WA), s 12D, s 13, s 13(d), s 13(1), s 13(1)(d), s 13(1)(da), s 13A, s 10A, s 10B, s 10C

Builders' Registration Regulations (WA), r 21
Building Legislation Amendment Act 2000 (WA)
Fair Trading Act 1987 (WA), s 10, s 69
Trade Practices Act 1974 (Cth), s 52, s 79(1)

Result:

Respondent found to have engaged in misleading conduct fine imposed

Category: B

Representation:

Counsel:

Applicant : Mr AS Stavrianou

Respondent : Mr SG Scott

Solicitors:

Applicant : Mr N Oud - Builders' Registration Board of Western Australia

Respondent : Stables Scott

Case(s) referred to in decision(s):

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: [2006] WASAT 53
Decision Date: 8 MARCH 2006

CaseChat Overview and Summary

The Builders' Registration Board sought disciplinary action against Ongarezos, who was alleged to have engaged in fraudulent or misleading or deceptive conduct. Ongarezos was accused of misrepresenting his company's registration status and his own identity as a registered builder. The case was heard in the Supreme Court of Western Australia. The primary legal issue the court had to resolve was whether intent was a necessary element in establishing misleading or deceptive conduct under the Builders' Registration Act 1939 (WA). The court examined whether the representations made by Ongarezos, though misleading, were unintentional.

The court found that the representations were indeed misleading, but it was not necessary for Ongarezos to have acted with intent for the conduct to be considered misleading or deceptive. The court held that the statutory language did not require an element of intention to prove such conduct. Consequently, the court concluded that Ongarezos's actions were in breach of the Act, even though they were not intentional. The court then imposed a fine of $3000 on Ongarezos and ordered him to pay $1000 towards the applicant's costs.

Orders

Orders of the court

1. The respondent is fined $3000. 2. The respondent is to pay a portion of the applicant's costs fixed at $1000.

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

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