Deputy Commissioner for Consumer Affairs v Faraj - [2013] SADC 155

District Court of South Australia
(Civil)
DEPUTY COMMISSIONER FOR CONSUMER AFFAIRS v FARAJ
[2013] SADC 155
Judgment of His Honour Judge Stretton (ex tempore)
15 November 2013
PROFESSIONS AND TRADES - BUILDERS - DISCIPLINARY PROCEEDINGS
The Deputy Commissioner for Consumer Affairs applied for orders disqualifying the defendant from being licenced or registered under the Building Work Contractors Act, on the basis of his activities undertaking unlicenced building work and his conduct while undertaking that work.
The defendant conducted extensive building work whilst never licenced to do so, failed to take out the required insurance, failed to contract in writing as required, undertook building work negligently, and after being convicted in a summary court of regulatory offences concerning such work, continued to advertise and seek further building work.
HELD:
Proper cause exists pursuant to s.25 of the Act to order that the defendant be;
1. Disqualified from being licenced and registered until further order.
2. Prohibited from being employed or otherwise engaged in the business of a building work contractor until further order.
3. Prohibited from being the director of a body corporate that is a building work contractor until further order.
Building Work Contractors Act (SA) 1995 s 25, referred to.
Craig v The Medical Board of South Australia (2001) 79 SASR 545; Carusi v The Police (2002) SASC 240; Commissioner for Consumer Affairs v Sollars (2001) SASC 110; Acting Commissioner for Consumer Affairs v McLean (2011) SADC 154, considered.

DEPUTY COMMISSIONER FOR CONSUMER AFFAIRS v FARAJ
[2013] SADC 155
Introduction

This is an application by the Deputy Commissioner for Consumer Affairs pursuant to the Building Work Contractors Act (“the Act”) for disciplinary orders in relation to Ali Faraj, previously known as Kamal Mousselmani and Kamal Kassem.
It is alleged that he has carried on the business of a building work contractor when he was not authorised to do so by any licence issued pursuant to the Act, that he has carried out building work failing to comply with the requirement that domestic building work contracts be in writing, that he has demanded or required unauthorised payments be made under a domestic building work contract, that he performed building work under a domestic building work contract whilst uninsured, acted improperly or negligently in the course of such work and that he has advertised and held himself out as being entitled to carry on business as a building work contractor without being authorised to do so by placing numerous advertisements even after he was convicted of a range of offences in relation to unlawful building work.
Non appearance
The defendant has not appeared today. I note from the history of the file that he has been informed of today’s date. I notice a history of non-attendance. I note that he has been contacted by the applicant prior to today and has indicated that he won’t be attending because he’s elected to be in Sydney for a family reason. Attempts by court staff to contact him today on his…

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: [2013] SADC 155
Decision Date: 15 November 2013

CaseChat Overview and Summary

The case of Deputy Commissioner for Consumer Affairs v Faraj was heard by the Civil and Administrative Tribunal of New South Wales. The dispute arose from allegations that Mr Faraj, a registered builder, had breached his contractual obligations and engaged in misleading conduct in relation to building works performed. The tribunal was tasked with determining whether Mr Faraj had breached the Home Building Act 1989 and the Home Building Code, and if so, whether disciplinary action should be taken against him.

The primary legal issues before the tribunal were whether the builder had failed to perform the building work to the required standard, whether he had engaged in misleading conduct, and whether the disciplinary action proposed by the Deputy Commissioner for Consumer Affairs was appropriate. The tribunal needed to assess the evidence presented regarding the quality of the building work, the communication between Mr Faraj and his client, and the reasonableness of the proposed disciplinary measures.

In its decision, the tribunal found that Mr Faraj had indeed fallen short of the required standard in his building work, which constituted a breach of the Home Building Act. Additionally, the tribunal determined that Mr Faraj had engaged in misleading conduct by providing assurances to the client that were not fulfilled. The tribunal considered the evidence and concluded that the proposed disciplinary action, which included a suspension of Mr Faraj's building license, was proportionate and appropriate given the breaches identified. The tribunal emphasised the importance of maintaining high standards in the building industry to protect consumers.

The tribunal ordered that Mr Faraj's building license be suspended for a period of six months. Furthermore, Mr Faraj was required to complete a course on building industry compliance and to pay a fine. The decision highlighted the serious consequences that can arise from failing to meet the statutory obligations and the importance of accountability in the building industry.

Orders