Zollo v Commissioner for Consumer Affairs - [2025] SADC 1

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
ZOLLO v COMMISSIONER FOR CONSUMER AFFAIRS
[2025] SADC 1
Judgment of her Honour Judge Bochner
13 January 2025
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA
This appeal relates to an order for summary judgment in favour of the respondent.
Held: Appeal dismissed.
Builders Licensing Act 1967 (SA); Builders Licensing Act 1986 (SA); Building Work Contractors Act 1995 (SA); Limitation of Actions Act 1936 (SA), referred to.

ZOLLO v COMMISSIONER FOR CONSUMER AFFAIRS
[2025] SADC 1

On 9 May 2024, Auxiliary Master Roder (“the Master”) delivered reasons for decision, by which he granted summary judgment in favour of the respondent with respect to the applicant’s claim.[1] The applicant, now appellant, appeals that decision.
[1] Decision of Auxiliary Master Roder, No 5 of 2024.
Factual basis to the appeal
This summary of the facts is taken from the reasons of the Master. The appellant first obtained a builder’s licence in 1980, pursuant to the terms of the Builders Licensing Act 1967. He continued to hold a builder’s licence pursuant to the legislation in force at the time until 7 December 1994. On 7 December 1994, the relevant authority ordered the cancellation of the appellant’s licence and disqualified him, until further order, from being licensed or registered, or both, under the legislation then in force, the Builders Licensing Act 1986. I will refer to this as the 1994 disqualification.
In April 1995, the appellant appealed the orders of the relevant authority, but the appeal lapsed. The appellant sought to have it reinstated in 1999; this application was refused in December 1999.
On 31 May 1996, the Builders Licensing Act 1986 was repealed by the Building Work Contractors Act 1995; after that date, the orders affecting the appellant continued as if they had been by the District Court pursuant to Part 4 of the Building Work Contractors Act 1995 (“the BWCA”).
It appears that, in 1995, 1996 and 1997, the respondent sent the appellant the forms necessary to renew the licences. The appellant completed the annual returns required of a licensed builder and paid the fees required to renew his licence. It is the position of the respondent that the forms were sent to the appellant in error.
In 2000, the appellant made an application to the District Court in relation to the cancellation of his licence. The appellant gave an undertaking to the Court that he would not act as the director of a body corporate that is a building work contractor, following which his disqualification was discharged by consent. I will refer to this as the 2000 discharge.
On 16 March 2009, the appellant applied to the respondent for registration as a building work supervisor. This application was refused by the respondent on 23 April 2009.
In 2015, the respondent commenced disciplinary action against the appellant for breaches of the undertaking given by the appellant to the Court in 2000. I will refer to this as the 2015 disciplinary action. Following a trial, orders were made permanently disqualifying the appellant from being licensed or registered under the BWCA. The appellant appealed this decision, which appeal was dismissed.
The appellant commenced this action in 2023. The statement of claim is difficult to follow. It seems, however, that the appellant alleges that the respondent has breached the BWCA by failing to provide him with annual renewal forms for his various licences and registrations and is liable to him in tort. In effect, he appears to allege that the respondent should have continued to send him renewal documents for his various licences, and that its failure to do so has led to his suffering economic loss. He further alleges that he has held a licence continuously since 1980, because, once granted, the licence lasts for life unless it is surrendered or cancelled.
The respondent made an application for summary judgment in his favour, on the basis that this action has no reasonable prospect of success, is an abuse of process and is out of time.
The reasons of the Master
The Master dealt, first, with the respondent’s contention that the appellant’s action is out of time. The respondent contended that any cause of action (if such a cause of action existed) crystallised on 31 March 1998, with the limitation period being six years. As a result, the action is substantially out of time. The Master noted that the appellant had sought an extension of time.
As to the appellant’s application for an extension of time, the Master noted that the appellant sought to rely on incorrect sections of the Limitation of Action Act 1936, and further, that the new fact on which he sought to rely actually came to his attention approximately eleven months after the action was commenced. He found that the application for an extension of time could not be entertained on this basis.
The Master then dealt with the appellant’s contention that the respondent was under a continuing obligation to send him licence renewals every year, which obligation had been breached each year. If that were the case, then the appellant’s action would not be statute barred. He found that this was a question that should be dealt with at any trial of the matter.
On the question of an abuse of process, the Master found that the appellant’s statement of claim could not be properly characterised as an attempt to relitigate the matters that were the subject of the respondent’s 2015 action, although some aspects of the pleading might properly be struck out on this ground. He then noted that the statement of claim referred to the tort of misfeasance in public office. He went on to say:
…There is no sufficient pleading of any of the elements – the highest appears to be in paragraph 1 of the applicant’s Introduction to the Claim. Nor is there a jot, iota, or a “tittle” of evidence to make the claim out. I cannot allow that claim as presently proceeded to proceed to trial, nor can I – on the evidence and submissions received – see how there is any prospect that the applicant could improve that aspect of the pleading of the claim.[2]
[2] Decision of Auxiliary Master Roder, No 5 of 2024, [26].
Finally, the Master dealt with the prospects of success. He found that there was a fundamental problem with the appellant’s contention that his licence lasted for life, unless surrendered or cancelled. The difficulty arises because the appellant’s licence was, in fact, cancelled by the relevant tribunal on 7 December 1994. While the disqualification was discharged following the giving of the undertaking by the appellant, his licence was not reinstated. As a result, he did not retain any of the rights of an existing licence holder. Consequently, this action had no prospect of success, and the respondent was entitled to summary judgment.
The grounds of appeal and the notice of alternative contention
The appellant’s grounds of appeal are difficult to understand. It appears that he contends that the Master erred in finding that his licence was not reinstated at the time of the 2000 discharge. He further appears to contend that the Master erred in not finding that the licence had been renewed in 1995, 1996 and 1997, which should have led to the conclusion that he was entitled to hold a licence during this period.
The respondent filed a notice of alternative contention, in which he contends that the Master erred in failing to find that the appellant required an extension of time to bring the action, and in failing to find that the action is statute barred.
The appellant’s position
The appellant’s oral submissions were difficult to follow; however, they largely mirrored his written submissions. The thrust of his argument can be summarised in the following way.
First, the Master erred in finding that the 2000 discharge did not result in the reinstatement of his licence. His receipt of licence renewal forms in 1995, 1996 and 1997 demonstrates that his licence had in fact been renewed by the relevant tribunal in those years, first pursuant to the legislation in force at that time, and then pursuant to the BWCA. He argues, in effect, that by sending him licence renewal forms in 1995, 1996 and 1997, the respondent negated the cancellation and disqualification ordered by the relevant tribunal in December 1994.
The appellant argued that the respondent had acted unlawfully in failing to supply him with renewal forms in the years subsequent to 1997. He said that this has caused him financial loss and the loss of building contracts, which in turn resulted in the demise of his business.
The failure of the respondent to provide him with licence renewal forms from 1998 onwards was unlawful in light of the fact that the respondent had not provided notice of any matter giving rise to disciplinary action under s 22 of the BWCA. As a result, the respondent is in breach of Part 3A section 19A(6) and (7) of the BWCA. His builder’s licence has been wrongfully withheld by the respondent since 1998.
The crux of the appellant’s case appears to be that, once a person is granted a builder’s licence, they hold the licence for life. The only person who can rescind the licence is the licence holder. Otherwise, the licence can only be suspended or cancelled for a temporary period of no more than five or six months.
The appellant submitted that this action is not out of time. His licence remains extant because he has not surrendered it. Even if his licence is suspended, the respondent must renew it because it lasts for his lifetime.
The appellant contended that the relevant date for the purpose of this action is 31 March 1998, when the respondent failed to send him the forms necessary to renew his licence. He submitted that anything after this time (including the 2015 disciplinary action) is irrelevant.
The respondent’s position
The respondent submitted that the appellant had failed to identify any error in the Master’s decision, as a result of which, this appeal must be dismissed. He contended that the transitional provisions of the BWCA meant that the disciplinary orders made by the previous tribunal continued as if they had been made pursuant to the BWCA.
The respondent argued that the acceptance by it of renewal fees between 1995 and 1997 was clearly in error, as the appellant was not entitled to hold a licence or registration as a result of the December 1994 order. Once the respondent’s database was updated in September 1997 to record the cancellation of the appellant’s licence, he no longer received renewal material.
The respondent says that, from the time of the 2000 discharge, the appellant remained unlicensed but was allowed to apply for a licence under the BWCA. He did so in 2009, at which time his application was refused. Ultimately, the appellant was permanently disqualified from holding any form of builder’s licence as a result of the 2015 disciplinary action.
The respondent submitted that the appellant has failed to demonstrate any error on the part of the Master. The fact that he represented himself does not absolve him of the requirement to do so.
The respondent said that the Master correctly noted that parts of the statement of claim (in particular paragraphs 12 – 14) raised issues that had been dealt with finally in previous litigation. He contended that the appellant is estopped from denying facts established in previous decisions and he has not adduced any new evidence which could lead to a challenge of those findings. The appellant’s disqualification was addressed by the District Court in the action leading to the 2000 discharge and in the 2015 disciplinary action, and also by the Full Court of the Supreme Court in the appeal of the orders made in the 2015 disciplinary action.
The respondent says that the appellant cannot now seek to challenge the finding that his licence was cancelled by the 1994 disqualification and that it was never reinstated or reissued. There is no basis for the appellant’s contention that his licence was in fact renewed in 1995, 1996 and 1997.
The respondent further contends that he had no duty to send the appellant licence renewal forms. While it may be arguable that such a duty might be owed to licence holders (which was not conceded by the respondent) no such duty could be owed to a person who was not a current licence holder.
The respondent submitted that there was no error on the part of the Master in finding that the plea with respect to the tort of misfeasance in public office was misconceived. The pleading did not support the allegations, nor were any material facts advanced which might support them. Further, the Master was correct to note that no pleading was advanced by the appellant to support a claim based on a proprietary right.
As to his notice of alternative contention, the respondent submitted that, even if the respondent was under a continuing obligation to send him licence renewal forms (which was denied by the respondent), any such obligation must have ceased at the time of the 2000 discharge. Even on this basis, any cause of action must have expired by January 2006, as a result of which this action remains statute barred.
The appellant has failed to identify any basis for granting an extension of time, and as a result, the Master was correct to find that the appellant had no reasonable prospect of success in this action.
Consideration
It is clear to me that this appeal must be dismissed. No error on the part of the Master has been identified by the appellant. The matters raised by the appellant in his statement of claim are simply untenable.
There can be no doubt that the appellant’s licence as a builder and his registration as a building work supervisor were cancelled as a result of the 1994 disqualification, and that he was, from that time, disqualified from holding such a licence until further order. The appellant sought to appeal these orders; ultimately, his appeal lapsed for want of prosecution and his application to reinstate the appeal in 1999 was unsuccessful.
There can be no doubt that the respondent, in error, sent the appellant the relevant forms to renew his licences in 1995, 1996 and 1997. There can be no basis, however, to argue that the administrative action of the respondent in doing so somehow overrode the 1994 disqualification. The appellant has relied on no authority or principle of law which might suggest that this might be the case.
I had before me the appellant’s 1995 and 1996 renewals. I note that in these renewal applications, the appellant failed to answer truthfully the question in the 1995 renewal whether he had, in the last 12 months, been disqualified by any tribunal, court of other authority in relation to building activities. It is likely, that, had this question been answered truthfully by the appellant, the respondent’s error would have been identified earlier that it was.
It is not reasonably arguable that the 2000 discharge led to the automatic reinstatement of the appellant’s licence. The wording of the undertaking given by the appellant at this time makes this abundantly clear. Paragraph 3 of the undertaking reads:
On the basis that the order of the Commercial Tribunal dated 7 December 1994 is varied to remove the disqualification from being licensed and registered I understand that I am entitled to apply for registration as a building work supervisor and for a building work contractors licence but until such time as I have obtained such registration and licence I will be limited to working in the industry as an employee.[3]
(emphasis added)
[3] FDN 7, page 40.
This is a clear acknowledgement by the appellant that he did not, at that time, hold any registration or licence that would allow him to work in the building industry other than as an employee, but that he was, at that time, entitled to apply for such registration or licence. Thus, there can be no basis to the appellant’s assertion that he had held, or was entitled to hold, a licence continuously since 1980. It is a clear refutation of his contention that his licence was for life (or, indeed, of his contention that he held the belief that he held his licence for life).
In any event, the appellant’s contention that his licence remains in force is untenable. At the time of the 1994 disqualification, the Builders Licensing Act 1986 was in operation. Section 11 of that Act provides that a licence granted pursuant to the Act remained in force until it was surrendered, or the licensee died. However, s 19(6) of the Act provided that the Tribunal had the power to cancel a person’s licence or registration, or to disqualify a person from holding a licence or registration permanently, for a specified period or until further order. There can be no doubt that the appellant’s licence was cancelled as a result of the 1994 disqualification. Indeed, the final paragraph of the Reasons for Decision reads:
The Tribunal finds that a proper cause exists for disciplinary action against the Respondent and orders that the licence as a builder and registration as a building work supervisor held by Mr Zollo be cancelled forthwith pursuant to Section 19(6)(c)(iv) of the Act and that Mr Zollo be disqualified under Section 19(6)(d) of the Act until further order from being licensed or registered, or both, under the Builders Licensing Act 1986.[4]
[4] FDN 7, page 33.
Thus, the appellant’s licence and registration were clearly and lawfully cancelled by the Tribunal pursuant to the Builders Licensing Act 1986. The transitional provisions of the BWCA make it clear that any orders of the Tribunal operational at the time of its commencement continued in operation.
The Master was correct to conclude that the appellant’s claim had no prospect of success. It cannot be accepted that he continued to hold a builder’s licence after the 1994 disqualification. Nor, as I have already explained, can there be any merit to the suggestion that the 2000 discharge led to the reinstatement of the appellant’s licences and registration. The effect of the 2000 discharge was that the disqualification was discharged, and the appellant became entitled to apply for a licence. He acknowledged as much in the undertaking that he gave at that time.
I turn now to the respondent’s notice of alternative contention. I consider that this is the one aspect in respect of which the Master erred. There can be no arguable basis for the appellant’s contention that the respondent was under a continuing obligation to invite him to renew his licence every year since 1995. The appellant exhausted his appeal rights with respect to the 1994 disqualification, and he was sent the renewal forms in error in 1995, 1996 and 1997. His failure to answer the questions in the 1995 renewal form truthfully led to the perpetuation of this error in 1996 and 1997. However, an administrative error on the part of the respondent cannot override a lawful disqualification of the appellant’s licence and registration.
As a result, any action that the appellant may have had (and it is hard to imagine what that action would be, given that he had exhausted his appeal rights) is long out of time. It is simply not reasonably arguable that the respondent had a duty to send the appellant renewal forms at any time after the cancellation and disqualification.
The appellant’s appeal is dismissed. The respondent’s notice of alternative contention is upheld.
I will hear the parties on the question of costs.