MJB Contracting Pty Ltd v Commissioner for Fair Trading, New South Wales Office of Fair Trading

[2008] NSWADT 97

CITATION:	MJB Contracting Pty Ltd v Commissioner for Fair Trading, New South Wales Office of Fair Trading [2008] NSWADT 97
DIVISION:	General Division
PARTIES:	APPLICANT MJB Contracting Pty Ltd RESPONDENT Commissioner for Fair Trading, New South Wales Office of Fair Trading
FILE NUMBER:	073270
HEARING DATES:	10 December 2007
SUBMISSIONS CLOSED:	10 December 2007
DATE OF DECISION:	1 April 2008
BEFORE:	Leal S - Judicial Member
CATCHWORDS:	Home Building Act - home builder - cancellation of contractor licence - jurisdiction
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Home Building Act 1989
CASES CITED:	Commissioner for Fair Trading v Awadallah (GD) [2006] NSWADTAP31
REPRESENTATION:	APPLICANT E White, barrister RESPONDENT W Maynard, solicitor
ORDERS:	The Tribunal does not have the jurisdiction to hear and determine the applicant’s application for review.

REASONS FOR DECISION

Background

1 MJB Contracting Pty Ltd is a building company. Mr Matthew John Bonny is the sole director and sole qualified supervisor of the company. Contractor licence 180006C was issued to MJB Contracting Pty Ltd on 22 November 2005.

2 In a decision affirmed by the internal reviewer, it was found that Mr Bonny did not declare on the application for licence 180006C that he was a relevant person for two companies where a total of 24 insurance claims had been paid against contracts entered into for residential work. On the basis of this failure to declare, it was held that licence 180006C had been issued to MJB Contracting Pty Ltd in error. The licence was then cancelled under section 43(1)(b) of the Home Building Act 1989.

3 MJB Contracting Pty Ltd lodged an application to the Tribunal seeking a review of the decision to cancel its licence.

Legislation

4 Section 43(1) of the Home Building Act 1989 specifies that the Commissioner for Fair Trading may, by serving on the holder of the authority a written notice setting out the reason for the cancellation, cancel an authority if the authority was issued, renewed or restored because of misrepresentation (whether fraudulent or not), or the authority was issued, renewed or restored in error (whether as a result of such as misrepresentation or not.)

5 Under section 38(1) of the Administrative Decisions Tribunal Act 1997, the Tribunal has jurisdiction to review a decision of an administrator if provision for such review is made by an Act or Regulation other than the Administrative Decisions Tribunal Act itself and the Regulations made under it. In this case, the relevant Act is the Home Building Act 1989.

6 Section 83B of the Home Building Act 1989 (‘the Act’) sets out the power of the Tribunal to review decisions under the Act. It provides as follows:

(1) An applicant for the issue, alteration, renewal or restoration of an authority aggrieved by any decision of the Director-General relating to the application may apply to the Tribunal for a review of the decision.

(2) The holder of an authority aggrieved by any decision of the Director-General to alter an authority or to cancel a provisional authority may apply to the Tribunal for a review of the decision.

(2A) The holder of a contractor licence aggrieved by a decision of the Director-General to suspend the contractor licence under section 22A, 22B or 61A may apply to the Tribunal for a review of the decision.

(3) A person aggrieved:

(a) by a decision made by the Director-General under Part 4 (Disciplinary proceedings) to impose a penalty or to cancel or suspend an authority, or

(b) by any other decision made by the Director-General under that Part that is prescribed by the regulations,

may apply to the Tribunal for a review of that decision.
7 Section 83B, together with 83A, constitute Part 4A of the Act. For the purposes of this Part, the term ‘authority’ is defined in section 83A to mean a contractor licence, a supervisor or tradesperson certificate, an owner-builder permit or a building consultancy licence.

Jurisdiction

8 Under section 83B of the Act, ‘the holder on an authority aggrieved by any decision of the Director-General to alter an authority or to cancel a provisional authority may apply to the Tribunal for a review of the decision.’

9 There is no power to review a decision made under section 43 of the Act to cancel a non-provisional authority. It is common ground that the authority held by MJB Contracting Pty Ltd, which was subsequently cancelled, namely contractor licence 180006C, is a non-provisional authority.

10 In the decision of Commissioner for Fair Trading v Awadallah (GD) [2006] NSWADTAP31, Deputy President Chesterman held that section 83B of the Act should be read literally to mean that the holder of a full authority, such as a contractor licence, that has been cancelled has no entitlement to a review from this Tribunal. He commented that:

“it is unfair and anomalous that … the holder of a full authority that has been cancelled should have no entitlement to seek review from the Tribunal, whereas [he or she] would … have been entitled to seek review if his authority had been provisional only … On this score and also simply because the current scope of Tribunal review is unclear, consideration should … be given to amending Part 4A of the Act.”
11 In light of the interpretation of section 83B of the Home Building Act 1989, as set out in Commissioner for Fair Trading v Awadallah , I find that the Tribunal does not have the jurisdiction to hear and determine the applicant’s application for review. ORDER
The Tribunal does not have the jurisdiction to hear and determine the applicant’s application for review.