Magerovski v Commissioner of Fair Trading

[2019] NSWSC 931

Supreme Court

New South Wales

Medium Neutral Citation:

Magerovski v Commissioner of Fair Trading [2019] NSWSC 931

Hearing dates:

22 July 2019

Decision date:

22 July 2019

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

(1) Dismiss the notice of motion filed by the plaintiff and Georges River Holdings Pty Limited on 12 July 2019.

 

(2) Make no order as to costs.

 (3) These orders are to be entered forthwith.

Catchwords:

JURISIDICTION – Supreme Court has no jurisdiction to grant a stay where there is no challenge in proceedings commenced in this Court to the underlying decision sought to be stayed – stay application to be made to Civil and Administrative Tribunal

Legislation Cited:

Home Building Act 1989 (NSW)
Licencing and Registration (Uniform Procedures) Act 2002 (NSW)

Category:

Procedural and other rulings

Parties:

Alan Magerovski (Plaintiff/Applicant)
Georges River Holdings Pty Limited ACN 168 661 309 (Applicant)
Commissioner of Fair Trading (Defendant)

Representation:

Counsel:
M Klooster (Plaintiff/Applicants)
R Francois (Defendant)

  Solicitors:
Zander Dre Lawyers (Plaintiff/Applicants)
NSW Fair Trading (Defendant)

File Number(s):

2019/169075

Judgment – ex tempore

1. By summons filed on 30 May 2019 Alan Magerovski (the plaintiff) seeks to challenge orders made by the Appeal Panel of the Civil and Administrative Tribunal (the Tribunal) on 2 May 2019, which in turn dismissed an appeal from a decision of Senior Member Dillon to uphold the decision of the Commissioner of Fair Trading (the defendant) to cancel the plaintiff's contractor’s licence under the Home Building Act 1989 (NSW) (the Act). The summons proceedings are listed for hearing before this Court on 7 November 2019.

2. By notice of motion filed on the 12 July 2019 Georges River Holdings Pty Limited (the Company) and the plaintiff (the applicants) sought orders to stay two decisions of the Tribunal: the first relating to the Company’s contractor's licence number 273814C (prayer 1) and the second relating to the plaintiff's contractor's licence number 237139C (prayer 2).

3. Mr Klooster, who appeared before me today on behalf of the applicant, indicated that the claim for relief in prayer 2 of the notice of motion was not pressed. Accordingly, the substantive relief sought in the notice of motion was that this Court stay the decision of the Tribunal to cancel the Company's contractor’s licence pending further order. The difficulty with this application is there is no challenge made by the Company in this Court to the cancellation of its licence. As referred to above, the summons challenges only the Tribunal's decision in respect of the plaintiff's licence. Accordingly, it would not appear to me that this Court has jurisdiction to grant a stay of the cancellation of the Company's licence, as sought in prayer 1 of the notice of motion.

4. It is necessary to summarise what has occurred since the Tribunal made its decision. Although the Company did not challenge the cancellation of its licence, on or about 7 May 2019 it applied to the defendant for a fresh contractor’s licence. I am informed by the parties that the application has been deemed to have been refused by reason of the operation of the Licensing and Registration (Uniform Procedures) Act 2002 (NSW). However, it is common ground that the defendant has not yet made a decision whether to grant or refuse the Company’s application for a contractor’s licence under the Act.

5. The Company seeks a stay to preserve its position, pending determination by the defendant of its application for a licence, in order to protect the Company itself and its customers. However, this Court has no jurisdiction to grant such a stay, it being a matter for the Tribunal as to whether it will grant a stay. I understand that the parties accept this to be the correct legal position.

6. I am informed by Mr Klooster, who appears for the applicants, and Ms Francois, who appears for the defendant, that the parties have agreed that they will approach the Tribunal for interim relief. The defendant has agreed that it will support the Company's application for a stay before the Tribunal. The cancellation of the company's licence will take effect as at 5pm tomorrow. The parties have indicated that they will approach the Tribunal before that time with a view to having the Tribunal grant a stay. The defendant does not seek costs of the notice of motion in this Court.

Orders

7. For the reasons given above, I make the following orders by consent:

1. Dismiss the notice of motion filed by the plaintiff and Georges River Holdings Pty Limited on 12 July 2019.

2. Make no order as to costs.

3. These orders are to be entered forthwith.

**********

Decision last updated: 22 July 2019