Commissioner for Consumer Affairs v Built It Pty Ltd & Zollo - [2019] SADC 66

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
COMMISSIONER FOR CONSUMER AFFAIRS v BUILT IT PTY LTD & ZOLLO
[2019] SADC 66
Judgment of Her Honour Judge Chapman
24 May 2019
ADMINISTRATIVE LAW
Complaint against director of building work contractor which was in liquidation at time of trial - whether Commissioner may proceed against a director when Complaint stayed against building work contractor - whether there is proper cause for disciplinary action against the building work contractor for various alleged breaches of the Building Work Contractors Act 1995 - whether the Second Respondent was a director or de facto director at relevant times.
Held: The Commissioner may proceed against the Second Respondent in circumstances where the Complaint against the First Respondent is stayed. Proper cause for disciplinary action found against the First Respondent as alleged. The Second Respondent was a director or a de facto director of the First Respondent at relevant times. Disciplinary action may be taken against the Second Respondent on that basis.
Building Work Contractors Act 1995 (SA) s 22; Acts Interpretation Act 1915 (SA) s 22; Corporations Act 2001 (Cth) s 471B, referred to.
Commissioner for Consumer Affairs v Sollars (2001) 79 SASR 145; Briginshaw v Briginshaw (1938) 60 CLR 336; Smithton Ltd v Naggar [2014] EWCA Civ 939; Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR 296; Chameleon Mining NL v Murchison Metals Limited [2010] FCA 1129; Deputy Commissioner of Taxation v Austin (1998) 39 ATR 485; Buzzle Operations Pty Ltd (in liq) v Apple Computer Australia Pty Ltd [2010] NSWSC 233, applied.

COMMISSIONER FOR CONSUMER AFFAIRS v BUILT IT PTY LTD & ZOLLO
[2019] SADC 66

On 23 September 2015, the Commissioner for Consumer Affairs filed a Complaint against the two respondents pursuant to s 22 of the Building Work Contractors Act 1995 (SA) (the Act). An amended Complaint (third Complaint) was filed on 20 December 2016.
Grounds 1 – 5 are against the First Respondent as a body corporate which was a building work contractor. It is alleged there is proper cause for disciplinary action against the First Respondent pursuant to s 21(c) or (e) of the Act.
Ground 6 is against the Second Respondent. The Commissioner pleads Grounds 1 – 5 against the Second Respondent alleging disciplinary action may be taken against the Second Respondent on the basis he was a director of the First Respondent at the relevant times.
Ground 1 – 3
In each ground, the allegation is that there is proper cause for disciplinary action against the First Respondent pursuant to s 21(1)(c) of the Act. It is alleged the First Respondent acted contrary to s 34(b) of the Act by failing to provide building owners with a certificate evidencing the taking out of the necessary policy of insurance for building work. The building owners were David Terrell and Julie Cahill (Ground 1), Matthew and Ingrid Wilkshire (Ground 2) and Darron and Lara Reid (Ground 3).
Ground 4
The allegation is that there is…

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: [2019] SADC 66
Decision Date: 24 May 2019

CaseChat Overview and Summary

This case involved a complaint by the Commissioner for Consumer Affairs against Built It Pty Ltd (First Respondent) and Alessandro Zollo (Second Respondent). The Commissioner alleged that the First Respondent had engaged in conduct that warranted disciplinary action under the Building Work Contractors Act 1995 (SA). Additionally, the Commissioner sought disciplinary action against the Second Respondent, who was alleged to have been a director of the First Respondent during the relevant period. The First Respondent was in liquidation, and proceedings against it were stayed. The court held that the Commissioner could proceed against the Second Respondent despite the stay of proceedings against the First Respondent. The court found that proper cause for disciplinary action existed against the First Respondent based on several grounds, including failure to provide insurance certificates to building owners and breach of an undertaking not to act as a director of a building work contractor. The court also found that the Second Respondent had acted as a director or de facto director of the First Respondent during the relevant period. Consequently, disciplinary action could be taken against the Second Respondent based on his role as a director of the First Respondent. The court will hear submissions on the appropriate disciplinary action to be taken against the Second Respondent.

Orders