Zollo v Commissioner for Consumer Affairs

[2020] SASCFC 118

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

ZOLLO v COMMISSIONER FOR CONSUMER AFFAIRS

[2020] SASCFC 118

Judgment of The Full Court

(The Honourable Justice Peek, The Honourable Justice Blue and The Honourable Justice Stanley)

4 December 2020

PROFESSIONS AND TRADES - BUILDERS - DISCIPLINARY PROCEEDINGS

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - WORDS TO BE GIVEN LITERAL AND GRAMMATICAL MEANING - PARTICULAR CASES

STATUTES - ACTS OF PARLIAMENT - OPERATION AND EFFECT OF ACTS - INTERACTION OF ACTS

In December 2016 the Commissioner for Consumer Affairs (the respondent) by complaint brought proceedings seeking disciplinary action against a building company, Built It Pty Ltd (Built It), and the appellant who was the director of Built It at the relevant time. The disciplinary action was brought pursuant to s 22 of the Building Work Contractors Act 1995 (SA) (the Act). The complaint brought by the respondent alleged six grounds for disciplinary action. Grounds 1 to 5 related to Built It. Ground 6 repeated grounds 1 to 5 and alleged that disciplinary action could be taken against the appellant personally by virtue of him being a director of Built It at the relevant time and on the basis there was proper cause for disciplinary action against the company.

Section 21(4) of the Act provides that disciplinary action may be taken against each director of a body corporate if there is proper cause for disciplinary action against the body corporate.

On 22 November 2017 a liquidator was appointed to Built It, which resulted in grounds 1 to 5 of the disciplinary complaint being stayed by virtue of s 471B of the Corporations Act 2001 (Cth). In the circumstances the respondent decided not to seek permission to proceed against Built It Pty Ltd (in liq) (Built It (in liq)) and only pursued ground 6 of the disciplinary complaint against the appellant personally. Built It (in liq) took no further part in the proceedings from the day on which it went into liquidation.

The appellant contended that the disciplinary proceedings brought against him were incompetent and were no longer available to the respondent on the ground that the operation of s 471B of the Corporations Act operated to stay the proceedings against the company.

The judge hearing the proceedings rejected the appellant’s submission and ruled the respondent could proceed against the appellant personally notwithstanding that the proceedings against the company in liquidation were stayed.

The judge ultimately found that there was proper cause for disciplinary action.  In consequence, the judge made orders prohibiting the appellant from being licensed or registered under the Act; being employed or otherwise engaged in the business of a building work contractor; being a director of a body corporate that is a building work contractor; carrying on business as a building consultant; being employed or otherwise engaged in the business of a building consultant; and being a director of a body corporate that is a building consultant.  The judge stipulated that these prohibitions were to apply…