Valstar v Commissioner for Fair Trading - [2005] NSWADT 102

CITATION: Valstar v Commissioner for Fair Trading [2005] NSWADT 102

DIVISION: General Division

PARTIES: APPLICANT
Klaas Arie Valstar
RESPONDENT
Commissioner for Fair Trading, Office of Fair Trading

FILE NUMBER: 043302

HEARING DATES: 3/2/2005

SUBMISSIONS CLOSED: 02/03/2005

DATE OF DECISION:
05/10/2005

BEFORE: Molony P - Judicial Member

APPLICATION: Home builder - issue of building consultants licence - Home Building Act - home builder - issue of building consultants licence

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Administrative Decisions Legislation Amendment Act 1997
Home Building Act 1989
Home Building Lesislation Amendment Act 2000
Home Building Regulation 2004
Interpretation Act 1987
Licensing and Registration (Uniform Procedures) Act 2002

CASES CITED: Ansett Transport Industries (Operations) Pty Ltd v Taylor (1987) 18 FCR 498; 12 ALD 547; 73 ALR 193
Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500; ARM Constructions Pty Ltd v DCT (1986) 10 ALN N118; 10 FCR 197
Bergin v White; Ex parte Bergin [1956] St R Qd 432
Brutus v Cozens [1973] AC 854.)
Casey v Repatriation Commission (1995) 39 ALD 34
Dornan v Riordan (1990) 21 ALD 255; 95 ALR 451.
Hatfield v Health Insurance Commission (1987) 15 FCR 487; 14 ALD 131; 77 ALR 103
Higgon v O’Dea [1962] WAR 140
Ileris and Comcare [1999] AATA 647
Jedko Game Co Pty Ltd v Collector of Customs (1987) 12 ALD 491
Magor and St. Mellons R.D.C. v. Newport Corporation (1952) AC 189
Marshall v Watson (1972) 124 CLR 640
Puglisi -v- Director of Fisheries, NSW Fisheries [1999] NSWADT 110
Re Palmer and Minister for the Capital Territory (1978) 1 ALD 193; 23 ALR 196
Shulver v Sherry (1992) 28 ALD 570
Soldatow v Australia Council (1991) 22 ALD 750
Thompson v Goold & Co [1910] AC 409
United Bonded Fabrics Pty Ltd v Roseman [2000] NSWADTAP 13

REPRESENTATION: APPLICANT
In person
RESPONDENT
A Wilson, solicitor

ORDERS: The decision of the Commissioner made 23 August 2004 to refuse Mr Valstar a building consultants licence (pre-purchase inspections) is set aside and substituted with a decision that a building consultants licence (pre-purchase inspections) be issued to Mr Valstar subject to the applicable conditions contained in Division 2 of Part 4 of the Home Building Regulation 2004.

Background

1 On 13 January 2004 Mr Valstar applied to the Commissioner for an individual building consultancy licence. At that time he held, and he continues to hold, a contractor (supervisors) licence under the Home Building Act 1989. His company, K A V Building Services Pty Ltd also holds a contractor licence under the Home Building Act 1989, a condition of which is that it only enters contracts for work not requiring home warranty insurance.

2 K A V Building Services Pty Ltd has since 1996 only done building consultancy work, principally pre-purchase inspections and pest inspections. Before then it did a mixture of construction work, pre-purchase inspections and building consultancy work.

3 On 5…

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 102
Decision Date: 05/10/2005

CaseChat Overview and Summary

Valstar, the applicant, sought judicial review of a decision by the Commissioner for Fair Trading, the respondent, to refuse to grant him a building consultants licence for pre-purchase inspections. The Supreme Court of New South Wales was tasked with reviewing the Commissioner's decision. The central issue before the Court was whether the Commissioner erred in his decision to refuse Mr Valstar a building consultants licence by failing to consider relevant material and by making an error in his assessment of the applicant’s experience and qualifications.

The Court considered whether the Commissioner's decision was flawed due to an omission of relevant information and a misinterpretation of the applicant's qualifications and experience. The Court found that the Commissioner had indeed omitted to consider material facts regarding the applicant’s qualifications and experience and had made an error in his assessment. The Court concluded that these errors were significant enough to warrant the setting aside of the Commissioner's decision. The Court held that Mr Valstar should be granted a building consultants licence, subject to the relevant conditions.

Based on the above findings, the Court set aside the Commissioner’s decision to refuse the applicant a building consultants licence and substituted it with a decision to grant the licence subject to the applicable conditions. This outcome reflects the Court’s view that the Commissioner’s decision was flawed and that the applicant was entitled to the licence on the basis of the material presented.

Orders

Orders of the court

The decision of the Commissioner made 23 August 2004 to refuse Mr Valstar a building consultants licence (pre-purchase inspections) is set aside and substituted with a decision that a building consultants licence (pre-purchase inspections) be issued to Mr Valstar subject to the applicable conditions contained in Division 2 of Part 4 of the Home Building Regulation 2004.

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:	Valstar v Commissioner for Fair Trading [2005] NSWADT 102
DIVISION:	General Division
PARTIES:	APPLICANT Klaas Arie Valstar RESPONDENT Commissioner for Fair Trading, Office of Fair Trading
FILE NUMBER:	043302
HEARING DATES:	3/2/2005
SUBMISSIONS CLOSED:	02/03/2005
DATE OF DECISION:	05/10/2005
BEFORE:	Molony P - Judicial Member
APPLICATION:	Home builder - issue of building consultants licence - Home Building Act - home builder - issue of building consultants licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Appeals Tribunal Act 1975 (Cth) Administrative Decisions (Judicial Review) Act 1977 (Cth) Administrative Decisions Legislation Amendment Act 1997 Home Building Act 1989 Home Building Lesislation Amendment Act 2000 Home Building Regulation 2004 Interpretation Act 1987 Licensing and Registration (Uniform Procedures) Act 2002
CASES CITED:	Ansett Transport Industries (Operations) Pty Ltd v Taylor (1987) 18 FCR 498; 12 ALD 547; 73 ALR 193 Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500; ARM Constructions Pty Ltd v DCT (1986) 10 ALN N118; 10 FCR 197 Bergin v White; Ex parte Bergin [1956] St R Qd 432 Brutus v Cozens [1973] AC 854.) Casey v Repatriation Commission (1995) 39 ALD 34 Dornan v Riordan (1990) 21 ALD 255; 95 ALR 451. Hatfield v Health Insurance Commission (1987) 15 FCR 487; 14 ALD 131; 77 ALR 103 Higgon v O’Dea [1962] WAR 140 Ileris and Comcare [1999] AATA 647 Jedko Game Co Pty Ltd v Collector of Customs (1987) 12 ALD 491 Magor and St. Mellons R.D.C. v. Newport Corporation (1952) AC 189 Marshall v Watson (1972) 124 CLR 640 Puglisi -v- Director of Fisheries, NSW Fisheries [1999] NSWADT 110 Re Palmer and Minister for the Capital Territory (1978) 1 ALD 193; 23 ALR 196 Shulver v Sherry (1992) 28 ALD 570 Soldatow v Australia Council (1991) 22 ALD 750 Thompson v Goold & Co [1910] AC 409 United Bonded Fabrics Pty Ltd v Roseman [2000] NSWADTAP 13
REPRESENTATION:	APPLICANT In person RESPONDENT A Wilson, solicitor
ORDERS:	The decision of the Commissioner made 23 August 2004 to refuse Mr Valstar a building consultants licence (pre-purchase inspections) is set aside and substituted with a decision that a building consultants licence (pre-purchase inspections) be issued to Mr Valstar subject to the applicable conditions contained in Division 2 of Part 4 of the Home Building Regulation 2004.