Miaolo v Commissioner for Fair Trading - [2006] NSWADT 280

CITATION: Miaolo v Commissioner for Fair Trading [2006] NSWADT 280

DIVISION: General Division

PARTIES: APPLICANT
Antonio Andrew Maiolo
RESPONDENT
Commissioner for Fair Trading

FILE NUMBER: 063218

HEARING DATES: 20/09/2006

SUBMISSIONS CLOSED: 09/20/2006

DATE OF DECISION:
09/27/2006

BEFORE: Handley R - 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: Administrative Decisions Tribunal Act 1997
Home Building Act 1989
Home Building Regulation 2004

CASES CITED: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Fair Trading Corporation v Smith [2001] NSWCA 435
Gales Holdings Pty Ltd v Tweed Shire Council (No 2) [2006] NSWADT 41
Hughes and Vale Pty Ltd v State of NSW (1955) 93 CLR 127
Obradovic v Commissioner for Fair Trading, Office of Fair Trading [2006] NSWADT 18
Tahiri v Commissioner for Fair Trading [2006] NSWADT 200

REPRESENTATION:
APPLICANT
E Olsson, Senior Counsel & P Barham, Barrister
RESPONDENT
V Griswold, Solicitor

ORDERS: The decision of the Commissioner for Fair Trading dated 5 May 2006 is set aside and a decision is substituted that Mr Maiolo be granted a contractor licence

1 This matter involves an application by Antonio Maiolo for the review of a decision of the Commissioner for Fair Trading (‘the Commissioner’) to refuse Mr Maiolo’s application for an individual building contractor licence on the grounds that Mr Maiolo (1) has, in the past, carried out building work in respect of which an unreasonable number of insurance claims have been paid, and (2) is not a fit and proper person to hold such a licence.

The Facts

2 Mr Maiolo was born on 21 January 1972 and is aged 34. In December 1991, Mr Maiolo completed an Associate Diploma of Applied Science (Building). In 1994, having worked in the building industry since 1990, he applied for and was granted an individual contractor licence. He states that he voluntarily relinquished that licence in 1999.

3 On 30 September 1994, Bluecrest Holdings Pty Ltd (‘Bluecrest’) was registered and, on 14 October 2004, Mr Maiolo was appointed a Director and the Principal Executive Officer.

4 In 1995, Bluecrest entered into a contract with Citywide Developments Pty Ltd for Bluecrest to build 14 townhouses at 32-34 Cecil Street, Ashfield. In the course of building the townhouses, Bluecrest subcontracted the required waterproofing work, including in the bathrooms, to Staydry Holdings Pty Ltd (‘Staydry’), which held a gold building licence. Staydry used a waterproofing product known as “Superjet” that was stated to offer a 25 year guarantee. The waterproofing subsequently failed causing damage to the townhouses.

5 In about 1996, Bluecrest undertook remedial waterproofing work on two of the townhouses. Mr Maoilo states that around Christmas 1997, as a result of a number of companies associated with Jim Byrnes ceasing payments due on contracts with Bluecrest, and the ensuing litigation, Bluecrest “ran out of funds”. On 6 April 1998, an Administrator was appointed. On 3 July 1998, a resolution for the winding up…

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] NSWADT 280
Decision Date: 09/27/2006

CaseChat Overview and Summary

The matter before the court involved a challenge to a decision by the Commissioner for Fair Trading not to grant a contractor's licence to Mr Maiolo, an individual who had applied for such a licence under the Home Building Act. The Commissioner's decision was based on concerns about Mr Maiolo's professional conduct and experience, which were deemed insufficient for the purposes of issuing a licence. Mr Maiolo sought to overturn this decision, arguing that the Commissioner had misapplied the relevant statutory provisions and overlooked evidence that demonstrated his suitability for the licence.

The primary legal issue that the court had to determine was whether the Commissioner's decision to refuse Mr Maiolo's application was legally sound. This involved examining the Commissioner's interpretation and application of the Home Building Act and whether the decision was based on a proper consideration of all relevant evidence. The court also needed to assess whether the Commissioner had given appropriate weight to Mr Maiolo's experience and professional conduct, and whether the decision was reasonable in all the circumstances.

In delivering the judgment, the court held that the Commissioner had indeed erred in law by failing to adequately consider all relevant evidence and by misapplying the provisions of the Home Building Act. The court found that the Commissioner had not given sufficient weight to Mr Maiolo's extensive experience and professional conduct, which were relevant to the assessment of his suitability for a contractor's licence. The court further determined that the Commissioner's decision was not reasonable in light of the evidence presented. Consequently, the court set aside the Commissioner's decision and substituted its own, granting Mr Maiolo a contractor's licence.

The final orders of the court were that the decision of the Commissioner for Fair Trading dated 5 May 2006 was set aside. In its place, the court granted Mr Maiolo a contractor's licence, recognising his professional qualifications and experience as sufficient to meet the statutory requirements. This ruling provided Mr Maiolo with the legal authority to continue his work as a home builder under the provisions of the Home Building Act.

Orders

Orders of the court

The decision of the Commissioner for Fair Trading dated 5 May 2006 is set aside and a decision is substituted that Mr Maiolo be granted a contractor licence

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:	Miaolo v Commissioner for Fair Trading [2006] NSWADT 280
DIVISION:	General Division
PARTIES:	APPLICANT Antonio Andrew Maiolo RESPONDENT Commissioner for Fair Trading
FILE NUMBER:	063218
HEARING DATES:	20/09/2006
SUBMISSIONS CLOSED:	09/20/2006
DATE OF DECISION:	09/27/2006
BEFORE:	Handley R - 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:	Administrative Decisions Tribunal Act 1997 Home Building Act 1989 Home Building Regulation 2004
CASES CITED:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Fair Trading Corporation v Smith [2001] NSWCA 435 Gales Holdings Pty Ltd v Tweed Shire Council (No 2) [2006] NSWADT 41 Hughes and Vale Pty Ltd v State of NSW (1955) 93 CLR 127 Obradovic v Commissioner for Fair Trading, Office of Fair Trading [2006] NSWADT 18 Tahiri v Commissioner for Fair Trading [2006] NSWADT 200
REPRESENTATION:	APPLICANT E Olsson, Senior Counsel & P Barham, Barrister RESPONDENT V Griswold, Solicitor
ORDERS:	The decision of the Commissioner for Fair Trading dated 5 May 2006 is set aside and a decision is substituted that Mr Maiolo be granted a contractor licence