Ng & anor v Commissioner for Fair Trading, NSW Office of Fair Trading & anor

The case of Ng & anor v Commissioner for Fair Trading, NSW Office of Fair Trading & anor was heard by the NSW Civil and Administrative Tribunal. The dispute involved Mr. Ng and Accent Construction Pty Ltd, a company he controlled, against the Commissioner for Fair Trading and the NSW Office of Fair Trading. The crux of the matter was the alleged improper conduct of Mr. Ng and Accent Construction Pty Ltd in relation to thirteen items of work on a residential building, which resulted in penalties being imposed by the Commissioner. Both parties appealed these penalties.

The primary legal issues before the Tribunal were whether the penalties imposed by the Commissioner were appropriate and whether the statutory warranty implied by section 18B(a) of the Home Building Act 1989 had indeed been breached. The Tribunal had to determine the nature and extent of the improper conduct and decide whether the penalties were commensurate with the breaches found. Additionally, the Tribunal needed to consider the statutory obligations of both Mr. Ng and Accent Construction Pty Ltd under the Act.

In its decision, the Tribunal found that while there were breaches of the statutory warranty, the penalties imposed were excessive. The Tribunal set aside the penalties and instead issued reprimands to both Mr. Ng and Accent Construction Pty Ltd. The Tribunal held that the breaches were serious but did not warrant the penalties imposed. The Tribunal concluded that a reprimand was sufficient to address the improper conduct while also serving as a deterrent against future breaches.

The final orders of the Tribunal were that the penalties imposed by the Commissioner on both Mr. Ng and Accent Construction Pty Ltd be set aside, and in their place, reprimands be issued. Mr. Ng was reprimanded for his role in the breaches as a director and holder of a supervisor certificate, while Accent Construction Pty Ltd was reprimanded for its role as a contractor. This outcome reflects the Tribunal's view that the reprimands were more appropriate given the nature and circumstances of the breaches.