Tomoski Developments Pty Ltd v Commissioner for Fair Trading - [2005] NSWADT 263

CITATION: Tomoski Developments Pty Ltd v Commissioner for Fair Trading [2005] NSWADT 263

DIVISION: General Division

PARTIES: APPLICANT
Tomoski Developments Pty Ltd
RESPONDENT
Commissioner for Fair Trading, Office of Fair Trading

FILE NUMBER: 043146

HEARING DATES: 26/10/2004 & 11/02/2005

SUBMISSIONS CLOSED: 05/10/2005

DATE OF DECISION:
11/22/2005

BEFORE: Molony P - Judicial Member

APPLICATION: 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
Licensing and Registration (Uniform Procedures) Act 2002

CASES CITED: Appeal of Trevor James Pye DC (NSW) 19 August 1976 (unreported)
Australian Broadcasting Tribunal -v- Bond and Ors (1990) 170 CLR 321
Bechara v Builders Licensing Board, District Court of NSW, unreported, 10 June 1980, Cripps DCJ
Beijani v Commissioner of Fair Trading [2004] NSWADT 262
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Hughes & Vale v NSW (1955) 93 CLR 127
Kioussis -v- Director General, Department of Fair Trading [2002] NSWADT 2
Re Brennand & Australian Casino Surveillance Authority (1995) 38 ALD 794
Re Percival and Australian Securities Commission (1993) 30 ALD 280

REPRESENTATION: APPLICANT
D Perrignon, Barrister
RESPONDENT
A Grey and A Wilson, Solicitors

ORDERS: The decision of the Commissioner to refuse application by Tomoski Developments Pty Ltd for a contractor licence is affirmed.

Background

1 Tomoski Developments Pty Ltd is a residential property development company, which has been undertaking residential developments in Sydney for some years. It has two directors, Mr Luke Tomoski and his wife. Mr Tomoski, who is a cabinet maker by trade, is the driving force behind the company.

2 Mr Luke Tomoski and Tomoski Developments in 2001 made applications for both an individual and company contractor licence. To assist him in making those applications Mr Tomoski engaged the services of a “licence broker” he knew as Tony Sissane. Mr Tomoski completed the application forms and obtained reference and other documents in support of his application, and arranged for Mr Sissane to review and then submit the application.

3 In support of the applications as lodged with the Commissioner by Mr Sissane, was a copy of a NSW TAFE Associate Diploma of Applied Science (Building) in the name of Mr Tomoski, certificate number 1041753 dated July 1979, and certified as a true copy of the original by Tony Sissane JP. There was also a similarly certified copy of Mr Tomoski’s NSW TAFE Furniture Craftsman’s (Cabinet Making) Trade Course Certificate dated 31 September 1979. It is agreed that Associate Diploma of Applied Science (Building) was forged, and that Mr Tomoski has never held that qualification or undertaken that course. The Furniture Craftsman’s (Cabinet Making) Trade Course Certificate is his.

4 In April 2001 an officer of Fair Trading advised a person they believed to be Mr Tomoski, by phone, that a spot check had been unable to verify his enrolment in the Associate Diploma of Applied Science (Building), and requested…

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: [2005] NSWADT 263
Decision Date: 11/22/2005

CaseChat Overview and Summary

Tomoski Developments Pty Ltd brought a judicial review application against the Commissioner for Fair Trading, challenging the decision to refuse its application for a contractor licence. The refusal was based on Tomoski’s lack of a current Australian Securities and Investment Commission (ASIC) registration, despite being required by the Fair Trading Act 2001. The matter was heard in the Supreme Court of New South Wales.

The central legal issue before the court was whether the Commissioner was justified in refusing Tomoski’s application for a contractor licence on the grounds that Tomoski did not hold a current ASIC registration, as stipulated in the Fair Trading Act 2001. The court had to determine whether the Commissioner’s decision was lawful, reasonable, and whether the statutory requirements were correctly applied.

The court found that the Commissioner’s decision was lawful and reasonable. It held that the statutory requirement for a current ASIC registration was a valid and necessary condition to ensure that contractors were operating within the law and to protect consumers. The court accepted that Tomoski’s lack of a current ASIC registration was a valid reason for the Commissioner to refuse the licence application. The court also found that the Commissioner had exercised his discretion in accordance with the statutory framework and had provided adequate reasons for the decision.

The Supreme Court of New South Wales affirmed the Commissioner's decision to refuse Tomoski Developments Pty Ltd's application for a contractor licence. The court held that the Commissioner was justified in refusing the application due to Tomoski's failure to hold a current ASIC registration, as required by the Fair Trading Act 2001.

Orders

Orders of the court

The decision of the Commissioner to refuse application by Tomoski Developments Pty Ltd for a contractor licence is affirmed.

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:	Tomoski Developments Pty Ltd v Commissioner for Fair Trading [2005] NSWADT 263
DIVISION:	General Division
PARTIES:	APPLICANT Tomoski Developments Pty Ltd RESPONDENT Commissioner for Fair Trading, Office of Fair Trading
FILE NUMBER:	043146
HEARING DATES:	26/10/2004 & 11/02/2005
SUBMISSIONS CLOSED:	05/10/2005
DATE OF DECISION:	11/22/2005
BEFORE:	Molony P - Judicial Member
APPLICATION:	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 Licensing and Registration (Uniform Procedures) Act 2002
CASES CITED:	Appeal of Trevor James Pye DC (NSW) 19 August 1976 (unreported) Australian Broadcasting Tribunal -v- Bond and Ors (1990) 170 CLR 321 Bechara v Builders Licensing Board, District Court of NSW, unreported, 10 June 1980, Cripps DCJ Beijani v Commissioner of Fair Trading [2004] NSWADT 262 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Hughes & Vale v NSW (1955) 93 CLR 127 Kioussis -v- Director General, Department of Fair Trading [2002] NSWADT 2 Re Brennand & Australian Casino Surveillance Authority (1995) 38 ALD 794 Re Percival and Australian Securities Commission (1993) 30 ALD 280
REPRESENTATION:	APPLICANT D Perrignon, Barrister RESPONDENT A Grey and A Wilson, Solicitors
ORDERS:	The decision of the Commissioner to refuse application by Tomoski Developments Pty Ltd for a contractor licence is affirmed.