Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Tom v Commissioner of Fair Trading [2022] NSWCATOD 130 Hearing dates: 24 March 2022 Date of orders: 21 April 2022 Decision date: 21 April 2022 Jurisdiction: Occupational Division Before: T Simon, Principal Member Decision: 1. The builder's licence (contractor Licence No 92385C) for all purposes is treated as on foot from 10 March 2022 until the final determination of the substantive application by the Tribunal in these proceedings. Catchwords: ADMINISTRATIVE LAW - REVIEW OF DECISION BY EXTERNAL DECISION-MAKER — decision to cancel contractor licence and disqualify a licence holder pursuant to section 62 of the Home Building Act 1989 (NSW) PRACTICE AND PROCEDURE — INTERLOCUTORY ORDER – interim decision — factors relevant to exercise of the power to make the interim decision under section 60 of the Administrative Decisions Review Act 1997 (NSW) — interlocutory decision to take effect retrospectively. Legislation Cited: Administrative Appeals Tribunal Act 1975 (Cth) Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Home Building Act 1989 Cases Cited: AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 King Eeducational Service Pty Ltd v Chief Executive Officer of the Australian Skills Quality Authority (No 2) [2021] FCA 183 Leslie William Alexander and Migration Agents Registration Board [1995] AATA 261 McBride v Walton [1994] NSWCA 199 QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAP 113 Shi v Migration Institute of Australia Ltd [2003] FCA 1304; (2003) 134 FCR 326 at 332 Webster v Tom [2018] NSWCATCD 6. Webster v Tom [2019] NSWCATAP 75 Category: Procedural rulings Parties: Andrew Tom (Applicant) Commissioner for Fair Trading (Respondent) Representation: Counsel A G Martin (Applicant) A Douglas-Baker (Respondent) Solicitors: Conroy Stewart Spagnolo Solicitors (Applicant) Legal, Corporate Services, Department of Customer Services (Respondent) File Number(s): 2022/72693 Publication restriction: Nil Reasons for Decision 1. On 11 March 2022 the applicant (the Builder), made an application to the Tribunal for the review of a decision made by the Commissioner for Fair Trading (the Commissioner) on 10 March 2022 (the Decision). 2. The reasons for the Decision disclose that disciplinary action was taken against the Builder on two grounds: 1. That the Builder was guilty of improper conduct under s 56(c) of the Home Building Act 1989 (the HBA). This was based on being satisfied that the Builder had breached implied statutory warranties (see s18B of the HBA) by failing to construct a property's footings in accordance with specifications. 2. That the Builder was not a fit and proper person to hold the contractor licence under s 56(b) of the HBA. 1. The Decision took effect immediately (from 10 March 2022) and resulted in: 1. The Builder being reprimanded pursuant to s 62(1)(b) of the HBA. 2. The Builder's contractor licence being cancelled pursuant to 62(1)(f) of the HBA. 3. The Builder being disqualified pursuant to s 62(1)(g) of the HBA, for a period of three years from being: 1. The holder of any authority, or any specified kind of authority under the HBA; 2. A member of a partnership, or officer of a corporation that is a member of a partnership, that is the holder of an authority under the HBA; and 3. An officer of a corporation that is a holder of an authority under the HBA. 1. On 11 March 2022 the Builder made an application for a stay and interim orders relating to the Decision. That application is made pursuant to s 60 of the Administrative Decisions Review Act 1997 (ADR Act). 2. On 16 March 2022 the Builder filed an amended application for a stay and interim orders and is seeking the following orders: 1. An order pursuant to s 60(2) of the ADR Act, reinstating the Builder's licence until the final determination of the substantive application by the Tribunal in these proceedings. 2. Further or in the alternative, to vary the Decision under review such that the operation of that Decision under review (to cancel the contract licence) does not commence until delivery of judgement by the Tribunal in these proceedings or such other date as the Tribunal may determine. 1. The Commissioner opposes the grant of the interim orders and in the alternative, submits that if an interim order is granted, it should only be granted on conditions. Documents relied by the Parties 1. The Builder provided the following documents: 1. Affidavit of Andrew Rolf Tom sworn 11 March 2022, provided to the Tribunal with the application for the interim order on 11 March 2022 (first Tom affidavit) 2. Affidavit of Andrew Rolf Tom sworn 16 March 2022, provided to the Tribunal on 16 March 2022 (second Tom affidavit) 3. An amended application for stay or interim order dated 16 March 2022, provided to the Tribunal on 16 March 2022 (the amended application) 4. Written Submissions dated 16 March 2022 5. Affidavit of Andrew Rolf Tom sworn 18 March 2022, provided to the Tribunal on 18 March 2022 (third Tom affidavit); 6. Affidavit of Andrew Rolf Tom sworn 20 March 2022, provided to the Tribunal on 20 March 2022 (fourth Tom affidavit) 7. A copy of a letter from Fair Trading dated 5 June 2015, sent by the Builder's Legal representative by email to the Registry at 12.32pm on 24 March 2022. 1. It is noted that there had been no orders made allowing leave for the amending of the application for interim orders. Further, the second, third and fourth Tom affidavits and the letter from Fair Trading dated 5 June 2015, were provided by the Builder outside the time provided for by the Tribunal directions. There was no formal objection raised by the Commissioner in relation to the amending of the application or allowing leave for the consideration of the second, third or fourth Tom affidavits, although it was noted by the Commissioner that there had only been limited time to deal with them. The Commissioner addressed the amended application and the various affidavits, both in the written and oral submissions to the Tribunal. On that basis and as far as is necessary, I have allowed leave for the consideration of the amended application and have dealt with the amended application for interim orders. I have also allowed leave for consideration of the second, third and fourth Tom affidavits. In relation to the one-page letter from Fair Trading dated 5 June 2015, objection to it was raised on behalf of the Commissioner at the hearing. However, I allowed the letter to be considered as part of the interim application and gave oral reasons at the hearing. 2. The Commissioner provided the following documents: 1. Affidavit of Stephanie Mancell affirmed 17 March 2022, provided to the Tribunal on 17 March 2022 (Mancell Affidavit); 2. Written submissions dated 17 March 2022, provided to the Tribunal on 17 March 2022 3. Documents filed pursuant to s 58 of the ADR Act on 18 March 2022 (s 58 Documents) 4. Supplementary material provided by the Commissioner to the Tribunal on 21 March 2022. For completeness, I note that the index to those materials refers to a report of David Crow, which is included in the material and a report written by Weir Legal & Consulting titled, "The House with no piers" which has not been included in the documents. 5. A copy of a Geotechnical Site Investigation dated 11 September 2014, sent by the Commissioner's legal representative by email to the Registry at 12.16pm on 24 March 2022. 1. The parties also made oral submissions regarding the interim orders at the hearing. Background 1. The 'Notice to Show Cause' dated 10 December 2021 and sent to the Builder by the Commissioner provides a helpful summary of the background to this matter. 2. On 20 May 2009 the Builder entered into a contract with Marc and Deidree Webster (the Websters) to build a residential house for the sum of $226,139.00. The works achieved practical completion on 4 December 2009. In mid-2014 the Websters informed the Builder of cracking in the brickwork and plaster of the property, as well as movement of windows and doors. 3. On 20 August 2014 the Builder inspected the property with an engineer, Colin Jenkins. In a follow up letter to the Websters dated 20 August 2014, Mr Jenkins noted that he had observed "some minor foundation on the left hand side of the residence, by way of a small amount of settlement", but that the settlement was "not significant." 4. On 10 September 2014, the Websters wrote to the Builder listing a number of alleged structural and non-structural defects. 5. On 22 October 2014 the Builder wrote to the Websters again stating that the visible cracking was not significant and noting he may be prepared to improve a few minor issues if the parties could reach an amicable agreement. 6. On 12 April 2015 the Websters submitted a complaint to Fair Trading in relation to the Builder's work at the property. They alleged that the property had multiple structural and non-structural defects including foundation and footing defects, external cracks in the brickwork, cracking in multiple locations at the front, side, and patio areas of the property, 'rio' bar exposure on the property's front entrance area, cracks in concrete and movement in the window linings and surrounds. 7. On 17 April 2015 Fair Trading requested further information from the Websters in relation to the complaint including receipts, invoices, copies of correspondence with the Builder, the building contract, the certificate of Home Warranty Insurance and a comprehensive list of defects. On 27 April 2015 the Websters responded to the request for further information. 8. On 28 April 2015 Fair Trading spoke with the Builder who stated that he stood behind the advice of the engineer, Mr Jenkins, and that there was nothing wrong with the build and that he considered that the problems may have been caused by lack of management by the Websters, including drainage and tree issues. 9. On 29 April 2015 Fair Trading called the Websters and informed them of the Builder's responses. The Websters were advised of the options of proceeding directly to the New South Wales Civil and Administrative Tribunal (NCAT) or having the matter referred to Fair Trading's Dispute Resolution Inspection Branch (DRIB) for possible inspection. The Websters requested that the matter be referred to DRIB. In the letter from the Home Building Service of Fair Trading dated 5 June 2015 it was recommended that the Websters progress their complaint to NCAT. 10. On 28 November 2015 the Websters lodged an application (CCD Proceedings) in the Consumer and Commercial Division of this Tribunal. The Websters sought the cost of demolishing and rebuilding the property constructed by the Builder. The Websters also sought an order for an amount of $350,167.33. The CCD proceedings were heard over four days. On 8 March 2018 the Tribunal made a decision for the Builder to pay the Websters an amount of $6,643.49 in relation to a small part of the Websters claim, being for the rectification of some cracking and other defects – Webster v Tom [2018] NSWCATCD 6. 11. On 4 April 2018 the Websters appealed the Tribunal decision to the NCAT Appeal Panel and on 2 April 2019 the Appeal Panel decided to dismiss the appeal - Webster v Tom [2019] NSWCATAP 75. 12. The Notice to Show Cause states that on 25 May 2019 the Websters and the engineer who they had engaged to provide expert evidence to the Tribunal in the CCD Proceedings, John Tozer, excavated under the property to determine to what extent the footings and piers had been constructed in accordance with the plans for the property. After the excavation Mr Tozer wrote a letter dated 7 July 2019, to the Registrar of the NCAT. 13. On 8 September 2019 the Websters wrote a letter to the Building Commissioner, David Chandler, in relation to the alleged issues with the property. 14. On 12 June 2020 Mr Chandler and Fair Trading Senior Building Inspector, Garry Christy, attended the Websters' property to conduct a site inspection. 15. On 14 April 2021, over ten months after the inspection, Fair Trading conducted an interview with the Builder with his solicitor present. 16. On 23 November 2021, almost a year and a half after the site inspection was done, Mr Christy wrote a report about the site inspection. 17. On 4 February 2022, the Builder replied to the 'Notice to show Cause' which had been issued on 10 December 2021 and as noted above Fair Trading proceeded to cancel the Builder's licence on 10 March 2022. Legal principles governing the exercise of the discretion to stay a decision 1. An application for administrative review of a decision does not prevent the Decision from taking effect (s 60(1) of the ADR Act). The Tribunal has power to make an order "staying or otherwise affecting the operation of the decision under review" (s 60(2) of the ADR Act). 2. The Builder confirmed that he is not seeking a stay on the Decision, as the cancellation had already taken effect, rather he is seeking an order to reinstate the licence of the Builder as of 10 March 2021. 3. In AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81, Campbell JA (with whom Handley AJA agreed) dealt with the difference in effect between a stay and the power reinstate a licence and held at [96] –[97]: 96. In the present case (unlike McBride v Walton), the Tribunal has a wider power than merely to grant a stay. It has power, under section 60(2) ADT Act, to "make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application." That power is one that is wide enough to enable the Tribunal to temporarily reinstate a licence that has been revoked pending the hearing of an application for review of a decision to revoke the licence. 97. If a notice of revocation of a licence under the SI Act was served, which said that the revocation would take effect in 21 days after service, there may still be a problem in the Tribunal granting a stay, properly so called, before the 21 day period had expired. It might be argued that it is only when there is an application for review of a "decision" that a stay can be granted under section 60, and the relevant "decision" is the revocation itself. However, even if that argument is right it would be possible for a licensee to put itself into a situation where it was in a position to lodge an application for review, and an application for temporary reinstatement of the licence, to commence as soon as the Tribunal could make an order after the revocation became effective. Alternatively, it might be argued that the relevant "decision" is to revoke the licence in 21 days, and that that decision could be stayed by an order made before expiry of the 21 days. It is not necessary to decide which of those arguments is right. As well, I leave for further argument whether section 60(2) is wide enough to enable the Tribunal to restore a revoked licence with retrospective effect. 1. His Honour also stated the following at [105]: 105 It should at once be recognised that for the parties to apply for, and the Tribunal ultimately to grant, a "stay" of the decision of the Commissioner to revoke the licence was an inapt use of language. If ever in the future the Tribunal wished to achieve the effect that a revocation of a licence that had already taken place, was to be treated as though it had not taken place, pending the hearing of an appeal against the decision to revoke, it would be highly desirable for the Tribunal, to achieve that effect by language that made clear what the Tribunal was doing, such as that "the licence for all purposes be treated as on foot pending the hearing of the appeal". As well as clarity, use of such language has the effect of helping to make clear the seriousness of such an order. 1. The Commissioner conceded that consistent with the decision in AVS, that it is within the scope of s 60(2) of the ADR Act, for the Tribunal to reinstate the licence, however submits that there was no reason to reinstate the licence retrospectively – that is from 10 March 2022. 2. Section 60(3) of the ADR Act empowers the Tribunal to make "orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application", if it considers that it is desirable to do so after considering: (a) the interests of any persons who may be affected by the determination of the application, and (b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and (c) the public interest. 1. In QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAP 113, the Appeal Panel of this Tribunal summarised the considerations which should be applied when considering a stay in matters such as this as including (at [32]); (1) whether the order is appropriate to secure the effectiveness of the determination of the application for review: s 60(2), ADR Act. (2) whether the order is desirable taking into account: (a) the interests of any persons who may be affected by the determination of the application for review: s 60(3)(a), ADR Act, Loveday v Commissioner for Fair Trading [2018] NSWCATAD 80 (Loveday) at [10], Re Scott and Australian Securities and Investments Commission [2009] AATA 798 (Re Scott) at [4]; (b) any submission made by or on behalf of the administrator who made the decision to which the application relates: s 60(3)(b), ADR Act, Loveday at [10], Re Scott at [4]; (c) the public interest: s 60(3)(c), ADR Act, Loveday at [10], Re Scott at [4]; (3) the applicant's prospects of success on the application for review: AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 (AVS Group) at [129], Loveday at [10] and [11], Re Scott at [4]. Consideration 1. Weighing the considerations to exercise the discretion, I find that several factors weigh in favour of the exercise of the discretion to make the interim order pending final determination of the matter. 2. The parties did not directly address each of the matters contained in QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force directly. However, I have dealt with each of the matters below and taken into consideration the relevant submissions and evidence raised by the parties. Effect on the builder, contracted parties and subcontractors 1. The Builder submits he and his family, his subcontractors, the clients he is currently contracted with for construction of dwellings and the broader community in the area in which he operates would be affected if the interim order was not made. 2. In the first Tom affidavit, the Builder states that he is a director of the company Andrew Tom Pty Ltd and the nominated supervisor relating to the licensing of that company. The Builder also sets out the details relating to three premises at which he is currently contracted to construct dwellings. 3. In relation to one of the owners the Builder states: [they] need me to finish the build urgently as they have no home and are currently staying with extended family. 1. The Builder also states and provides the details of five other properties for which he is contracted to commence building soon. The Builder states that: Due to the construction boom it will be quite problematic and difficult for my clients to find an alternate builder to complete their construction. 1. In the second Tom affidavit, the Builder states: I am not aware of any of any other builder in the far north coast or south east coast Queensland who would be able to complete the contracts for which I have been retained. There are relatively few builders in those regions and I set out below the contact I have with some of them. 1. In submissions, Counsel representing the Commissioner noted that no copies or terms of any of the contracts with these parties had been provided to the Tribunal by the Builder. 2. The Builder states he engages 45 subcontractors within his business and that they will be adversely affected by the cancellation of the Builder's licence. The Commissioner submits in reply, that if what the builder states about the need for builders in the area is true, then it is likely that the subcontractors will be able to find alternative work. 3. The Builder also states that his business will be adversely affected by the cancellation as it will result in him breaching contracts because he will be unable to complete the dwellings for which he is contracted. He also explains he has two children, and he is the sole income earner. He has mortgages over work vehicles, equipment and machinery and three other mortgages. He is employed as a casual fire fighter but only does that work on a casual basis. 4. I am satisfied that there will be some financial loss to the Builder in the period in which he will not be able to undertake works, in particular the works relating to the contracts which are currently on foot. While I accept that the actual contracts and their terms are not before the Tribunal at this stage, I find, based on the affidavit evidence of the Builder, that the Builder has currently commenced work constructing three properties which are due for completion in the next few months and that he is contracted to commence construction on five other properties in the near future. I accept that that there is likely to be inconvenience to the parties with whom the Builder has contracted having to organise another builder to construct. 5. While I do not have a full financial disclosure from the Builder, I accept on the evidence before me that the cancellation of the licensing would result in the Builder not being able to complete works for which he is contracted and that will have some financial consequence for him and his family. 6. I also accept that any effect on the business in the period before the determination of the review may impact adversely on subcontractors currently engaged to complete works. While I have not been provided with details of how the sub-contractors will be affected, I accept that the cancellation of the licence will mean that they will be unable to undertake works in relation to the contracts of the Builder and will at very least need to rearrange work. The complaints 1. The Builder submits that the interim order, if granted, would not prejudice the public interest. 2. The Commissioner submits that the findings contained in the reasons for the Decision and other complaints which have been made against the Builder demonstrate a lack of honesty and candour and are matters which would prejudice public interest. 3. In the first Tom affidavit, the Builder states that he commenced as a licensed Builder on 28 April 1998 and that: 5. Since becoming a licensed builder I have had no complaints made against me nor any claims made against me with the Department of Fair Trading. 6. Since being a licensed contractor in 1998 I have had no public warning, insurance claims paid and or statutory insurance claims paid attached to my licence. 7. Since being a licence holder in 1998 I have had no prior disciplinary action in regard to my licence or my company license. 1. In the affidavit of Ms Mancell, who is a solicitor employed by the Department of Customer Service, she states that on 15 March 2022 searches of the Builder's records for any consumer complaints were conducted. Ms Mancell sets out a table with details of 14 complaints. The details include the date of the complaint, the reference number of the complaint (they do not disclose who the complaint was made by or any address), whether the Builder was notified of the complaint by Fair Trading and whether the complaint was made against the individual or company. The complaints range from 8 December 2003 to 22 May 2018. The Builder was not notified at all in relation to three of the complaints. Ms Mancell has annexed to the affidavit copies of 4 of the complaints. Two of those complaints have been made by the same person and one is the complaint that was made by the Websters. I shall deal briefly with each of the four complaints that have been annexed to the affidavit of Ms Mancell. 2. Complaint reference number 6437060 which I shall refer to as complaint 1, was made on 20 December 2012 and states the following: An event of heavy rain occurred and the building extension warped and moved leaving the house uninhabitable – there is cracking and lifting of floorboards and separation of extension from main dwelling. It has been determined that this is due to poor construction of the extension. 1. The complaint also notes that a storm claim was denied on insurance. 2. The following written submissions are made by Counsel on behalf of the Commissioner regarding this complaint: Of the complaints made in relation to the applicant's work (whether performed under the licence or the corporate licence), complaint reference number 6437060 raises questions about the quality of the work performed by the applicant in respect of an extension to a house rendered uninhabitable by warping, cracking and separation from the main house, suggestive of poor or inadequate construction of foundations or footings. 1. The complaint itself does not mention inadequate construction of foundations or footings as is asserted in the submissions of Counsel. The written submissions continue: A hydrologist report supplied with the complaint supports the complaint. The respondent acknowledges that this particular complaint was not notified to the applicant, it having been made outside the statutory warranty period applicable at the relevant time (construction in 2005 and complaint made in late 2012). 1. The supplementary material provided by the Commissioner contains a report by a building consultant, Mr David Crow, dated 26 August 2009. The report relates to the property the subject of the complaint and the inspection in relation to the report was undertaken some three years prior to the complaint being lodged. That report is addressed to CGU insurance and relates to an insurance claim that was made by the complainant. An inspection was done by the building consultant to determine the cause of the building movement. The report indicates that the extension works had been carried out by the Builder five and a half years earlier (approx. 2003). The report refers to a 'listed event' during which the building consultant was advised by the Insured that approximately 150mm of water was occasioned under the dwelling. The report notes that there is differential movement between new foundation and existing foundations, combined with timber floor growth and resulting in the damage to internal and external lining. The report concludes that: Movement is consistent with the listed event. 1. In a further letter from Mr Crow dated 4 October 2009, he responds to questions from the insurer as follows: - How long was the 150mm of water sit underneath the house? To the best of my recollection of my site meeting I believe the water that lay underneath the dwelling across the road from the rising river, was there for several days. - Was the building movement solely due to the inundation of the storm water or was it likely that it had been happening over a long period of time due to naturals moisture changes in the soil etc? As a result of the information received from the insured at the time of the inspection, the movement became apparent soon after the inundation of water under dwelling. This was confirmed that the building contractor was not advised of the movement until this time. …. As a result of the information available to me at this point in time, I consider building movement is solely due to the recent inundation of waters under the dwelling. 1. In relation to complaint 1, I note that complaint, which was made nearly 10 years ago, was never referred to the Builder at the time it was made or referred to in the Notice to Show Cause or the reasons for the Decision. The first time it was raised with the Builder was in relation to this interlocutory application. I accept that it would have been futile for Fair Trading Building Services to have proceeded with the dispute resolution process on behalf of the homeowner at the time of the complaint, because any application to be made to a Tribunal or Court would be out of time by that stage. However, the passing of time would not have prevented an investigation of works in relation to the Builder's licensing, as has happened in relation to the Websters' complaint. On the evidence before me at present, which I am mindful has not yet been tested, there is nothing that supports the assertion made on behalf of the Commissioner in submissions, that the work performed by the Builder is "suggestive of poor or inadequate construction of foundations or footings" in relation to this complaint. The supporting evidence provided by the Commissioner, suggests the opposite, that is, the cause of the problem was storm water. 2. I shall collectively refer to complaints reference numbers 8133492 and 850333 as complaint 2. These complaints were made by the same homeowner in relation to the same residence and were made on 12 January 2016 and 26 April 2016. The Builder addresses these complaints in his third Tom affidavit and states that he terminated the contract with this complainant because he had not been paid for work done. 3. In relation to complaint 2, these complaints were also not referred to in the Notice to Show Cause or the reasons for the Decision, nor is it apparent from what is before me presently, that the complaints raise issues that are adverse to the Builder. There is no evidence that Fair Trading made adverse findings against the Builder in regard to this complaint. 4. Complaint reference number 7588252 which is annexed to the affidavit of Ms Mancell relates to the complaint made by the Websters on 12 April 2015. It is the primary focus of the Notice to Show Cause and the reasons for the Decision. 5. The Builder relies on records in relation to how much concrete was pumped on the site and records relating to council inspections done at the time to establish the width of the footings and to challenge the findings of the Commissioner. This was evidence that appears to have been put by the Builder to the Tribunal in the CCD and Appeal Panel Proceedings. 6. The reasons for the Decision state that the Commissioner relies on 'new evidence' that was not before the Tribunal and was not reasonably available at the time of the CCD or the Appeal Panel Proceedings. The first part of the 'new evidence' is the Building Inspection Report that was completed by the Fair Trading inspector, Mr Gary Christy on 23 November 2021. The second part of the new evidence relied on is correspondence dated 7 July 2019 and addressed to the Registrar of NCAT from the engineer that the Websters had engaged in the CCD proceedings, Mr John Tozer. 7. In the Notice to Show Cause that was sent to the Builder on 10 December 2021 the delegate states at [23] to [25]: 23. On 25 May 2019 the Owners [the Websters] and their consulting engineer Mr John Tozer excavated under the Property to determine to what extent the footings and piers had been constructed in accordance with the plans for the Property. Mr Tozer detailed the excavation carried out and his findings in a letter to Ms Cathy Szczygielski, Principal Registrar & Executive Director of NCAT, dated 7 July 2019 (2019 Tozer Correspondence). Annexure 8 is a copy of the 2019 Tozer Correspondence. 24. On 8 September 2019 the Owners wrote a letter to Mr. David Chandler OAM, NSW Building Commissioner, in relation to the alleged issues with the Property. 25 On 12 June 2020 Mr, Chandler and Fair Trading Senior Building Inspector Mr, Gary Christy attended the Property to conduct a site inspection. Mr Christy recorded the site inspection by way of an inspection report Building Inspection Report). Annexure 9 is a copy of the Building Inspection Report dated 23 November 2021. 1. The delegate then relevantly concludes in relation to the 'new evidence' at [58]: 58 … I note it is my view that the Building Inspection Report and the 2019 Tozer Correspondence constitute new evidence that was not "reasonably available" at the time of the NCAT Appeal Panel proceedings and is therefore evidence that has not been considered by NCAT. As such, the findings in the NCAT Decision and the Appeal Panel Decision that the Owners had not established that the Licence Holder was in breach of the Implied Warranty as regards the Foundation Specifications … were reached without the benefit of this new evidence. 1. The delegate then considered the 'new evidence' and the Builders submissions that had been made in response to the Notice to Show Cause and found that the Builder was guilty of improper conduct because he had breached the implied warranties in relation to the construction of the footings at the Websters residence. The delegate also found the Builder was not a fit and proper person to hold the contractor licence on the basis that he had been dishonest in the NCAT proceedings by stating he had built the footings in accordance with the plans and that he had been negligent and at worst reckless. 2. The Commissioner submits that the Fair Trading Building Inspection Report demonstrates that the footings are defective as bricks appear to be laying on the soil. The Fair Trading Building Inspection Report also shows photographs of measurements being taken in relation to the footings, including by the Building Commissioner, which the Commissioner asserts demonstrates that the footings are not the correct size. 3. The Builder submits that the construction of the Websters' residence was completed on 4 December 2009 and that there has been a substantial passage of time since the residence was built. The Builder also submits that the evidence suggests that Mr Tozer excavated the footings in May 2019 and that the inspection done by the Building Commissioner and Mr Christy was not done until over a year later, on 12 June 2020. The builder submits that it is unclear what intervening work may have been done to the footings in that period and so it cannot be assumed that the bricks shown in the photograph were the work of the Builder. 4. The Builder also submits that the Building Commissioner does not have authority to inspect residential premises of this class. It is noted the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (RAB Act) gives investigation, rectification and enforcement powers to the Secretary of the Department of Customer Service and other delegated persons including the Building Commissioner. The exercise of any function under that Act applies only to 'building work' in respect of 'a residential apartment building' (s 6 of the RAB Act). 'Residential apartment building' is a class 2 building within the meaning of the Building Code of Australia and includes any building containing a part that is classified as a class 2 component (s 3 of the RAB Act). A class 2 building is 'a building containing 2 or more sole-occupancy units each being a separate dwelling'. It is not clear at this stage if the Webster's premises was a Class 2 building, and it does not appear to be asserted by the Commissioner that the Building Commissioner's inspection was conducted pursuant to the RAB Act. It will remain a matter for determination of the substantive application as to the relevance, if any of these matters.. 5. In any case, the building inspection was also undertaken with Mr Christy who is a "building inspector' and is the author of the Building Inspection Report. In the Building Inspection Report Mr Christy states that he is an appointed representative of the Director General and a member of staff of NSW Fair Trading in accordance with ss 48E and 48D (1) of the HBA. Presumably, on that basis, Mr Christy may have been entitled to inspect and write the report. 6. It is clear from the documents and submissions provided by the Builder in the interlocutory application that the 'new evidence' is being challenged by the Builder. 7. Mr Tozer was the expert the Websters appointed at the time of the NCAT Proceedings. It is not yet clear on the evidence before me presently, why Mr Tozer did not undertake the excavation works at the time he did his inspections for the expert evidence in the CCD proceedings. 8. In the first Tom affidavit, the Builder also annexes correspondence from Mr Tozer to his solicitor dated 11 March 2022 (after the Decision was made) in which Mr Tozer states the following: Dear Spanghnolo – ha ha ah. You dirty filhy crooked sleaze bag. Finally got your come uppeance. I hope Andrew Tom comes after you. I will be writing to him, encouraging him to do so. For convincing him to try and lie and cheat his way thru NCAT and the Department of Fair Trading. Good luck. You'll need it. (sic) 1. The Builder also annexed to the first Tom affidavit, other correspondence to his solicitors along the same lines. Presumably, the Builder is challenging the independence of Mr Tozer and I note that in that regard, submissions will need to be made in the substantive application as to whether that evidence will be admitted and if it is allowed, the Commissioner will need to be given an opportunity to test it. 2. In relation to the Building Inspection Report there was a significant delay between the time the excavation of the footings and the inspection undertaken by Mr Christy and the Building Commissioner and at this stage there is no explanation of what work, if any, occurred in the intervening periods. 3. I also note there has been a considerable lapse of time since the practical completion date of the Websters residence on 4 December 2009 4. How the "new evidence" will be viewed by the Tribunal will be a matter to be considered in the substantive hearing after the parties have had the opportunity to test it and make submission on it. Prospects of Success 1. The Builder challenges the findings that were made against him in the reasons for the Decision and submits that the reasons for the Decision are attended with sufficient doubt to allow the Decision itself to be a factor in favour of the licensing temporarily. 2. In relation to the prospects of success, the relevant test is whether the applicant has an arguable case. The Tribunal proceedings are administrative review proceedings, where the Tribunal's power is that conferred by s 63 of the ADR and the task of the Tribunal will be to decide what is the "correct and preferable decision" having regard to any relevant factual material and the applicable law. The Builder submits that there are strong prospects of success in the application for administrative review, and the evidence in support of the allegations is not strong. The parties have provided extensive evidence in support, which in the context of the hearing of this interlocutory application has not been considered in detail or tested. However, having considered the matter briefly and for the reasons given in the analysis above, it cannot be said at this stage that there is either a likelihood that the Decision will be affirmed, or that there are no prospects of success. For the reasons given above in relation to the complaints, there is at least an arguable case by the Builder in relation to the review. 3. This is only an interim application, the evidence in relation to the cancellation has not yet been challenged or conclusively examined by the Tribunal. There will need to be in this case, an evaluation of the seriousness of the alleged breaches and the evidence overall. At this stage of the proceedings, it is not possible to conclusively determine one way or the other, whether there is a proper basis for findings that the breaches occurred or that the Builder is guilty of improper conduct or not a fit and proper person to hold a licence. I note that the Commissioner has already indicated that they will have more evidence to provide in relation to the review. Public Interest 1. I am not satisfied at this stage that the granting of the order until finalisation of the proceedings will prejudice the public interest. The Builder has been licensed since 1998 and while there have been some complaints made against him, they have not resulted in disciplinary action until now. I note that even the reasons for the Decision only referred to the disciplinary action being in relation to the Webster complaint. 2. In so far as the rest of the complaints, not already dealt with above, and referred to in the table contained in Ms Mancell's affidavit, I have no further details of what those complaints are. 3. The Commissioner submits that the statement made by the Builder in the first Tom affidavit that no complaints have been made against him brings into question the Builder's candour and honesty. 4. In the third Tom affidavit the Builder relevantly states: 3. My reference to there having been no complaints made against me appears to have been misunderstood. My evidence was intended to convey, as I had understood was agreed by Fair Trading, that I had no other complaints against me which had resulted in disciplinary or other action being taken with respect to my licence. I observe the delegate at paragraphs 57.2 and 57.3 of the delegates reasons for decision confirm this and I had those statements in mind which I prepared my earliest affidavit. I observe that the delegate took into account the lack of any disciplinary action against me in deciding to apply a 25% reduction in the sanction. The point I was trying to make was that the current proceedings are the only instance of disciplinary action being taken against me since 1998. 4. I have never intended to be heard as saying that there had been no complaints against me as that would have been clearly incorrect given the current complaint by the Websters, which resulted in the decision under review being made. 5. I accept that a number of complaints have been made against me over time since 1998. I proceed to respond to each of the 4 complaints which have been attached to the affidavit of Ms Mancell. 1. Having considered that explanation by the Builder, I find no reason to question the candour and honesty of the Builder on the evidence before me at this stage. 2. I am also satisfied on the evidence presently before that there is not an risk to the public interest if the builder is able to continue operating until final determination of the substantive application. In relation to the Webster complaint, the Commissioner has been aware of the complaint since it was first made in April 2015. The building inspection undertaken by Mr Christy and the Building Commissioner happened on 12 June 2020. The report relating to that inspection was not completed until over a year later, on 23 November 2021. That does not reflect that there was an urgency on behalf of the Commissioner at the time, to have the cancellation dealt with expeditiously in the interest of the public. 3. I have made directions for the exchange of documents and listed the matter for hearing so that the matter may be finalised expeditiously. I am satisfied that by dealing with the matter expeditiously, the risk, if there is one, can be reduced to one that is acceptable. Conditions 1. The Commissioner proposed that if interim orders were to be made, they should be made on condition. Given I have made directions for the exchange of documents and listed the matter for hearing so that the matter may be finalised expeditiously, I find no reason to make the order on conditions. The Orders 1. Consistent with the decision in AVS I make the order in the form suggested by the Court of Appeal, that "the licence for all purposes be treated as on foot pending the hearing of the appeal". 2. In relation to when the order should take effect, I note that there are no cases which deal specifically with s60(2) of the ADR Act and whether an interim order can take effect retrospectively. 3. While Campbell JA (with Handley AJA agreeing) in AVS leaves the question as to whether s60(2) is wide enough to enable the Tribunal to restore a revoked licence with retrospective effect, I am persuaded that s 60(2) is broad enough to allow the order to take effect retrospectively. 4. Similar wording to section 60(2) of the ADR Act exists in s41(2) of the Commonwealth Administrative Appeals Tribunal Act 1975 (AAT Act). 5. The wording in section 41(2) of the AAT Act is as follows: (2) The Tribunal may, on request being made by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review. 1. In Shi v Migration Institute of Australia Ltd [2003] FCA 1304; (2003) 134 FCR 326 at 332, the Federal Court of Australia at [25] said in relation to s 41(2) of the AAT Act: the subsection is framed in broad general terms, and by reference to a specific purpose. It should be given a liberal interpretation: see Yolbir v Administrative Appeals Tribunal [1994] FCA 910 at 249." 1. In Leslie William Alexander and Migration Agents Registration Board [1995] AATA 261, the applicant applied for a stay of a decision to refuse registration as a migration agent after legislation requiring registration came into effect. Deputy President BJ McMahon of the Administrative Appeals Tribunal in refusing the stay discussed the power in s 41(2): 21. The power is given to enable the Tribunal to preserve the status quo, so as to ensure that a continuum which is broken by a reviewable decision may be reinstated in order to secure the ultimate effectiveness of the hearing. Here there is no such continuum. 22. Prior to the operative decision, the applicant was not registered under Part 3. After the operative decision, he continued to be unregistered under Part 3. What the applicant really seeks is to have this Tribunal substitute, as a temporary decision, an order granting him registration under Part 3 without investigation of the merits. In my view this Tribunal has no such power. 23. In those cases, where the s 41(2) power has been exercised (either by the Tribunal or by a court on appeal) it has been for the purpose of reinstating the applicant to the position he or she was in prior to the making of the operative decision. Thus, in Re Dekanic and Tax Agents Board of New South Wales 6ALD 240 and Re Nelson and Tax Agents Board of Queensland [1993] AATA 262; 30ALD 317,the operative decision was to refuse renewal of registration as a tax agent. Similarly in Yolbir v Administrative Appeals Tribunal[1994] FCA 910; 33ALD 8(a decision of a Full Court of the Federal Court) and in Re Secretary, Department of Social Security and Guner 21ALD 399 the reviewable decision had the effect of terminating an ongoing pattern of payment of pension. 1. In AVS, Basten JA, who agreed with the orders proposed by Campbell JA but gave separate reasons, at [18] expresses the view that s 60(2) could operate retrospectively by altering the date that the decision was to have effect: [18] It is arguable that the second limb of s 60, (referring to an order "otherwise affecting the operation of the decision under review") would allow the Tribunal to suspend the operation of a revocation of a licence, or reinstate the licence on a temporary basis. That approach may gain support from the scope for a final decision on a review to operate from the date of the original decision: ADT Act, s 66(2)(b). Arguably that could be done by retrospectively varying the date from which the Commissioner's order was to have effect. Although the Tribunal did not make an order otherwise than in terms of a "stay", the question of statutory construction should be addressed having regard to the scope and effect of the orders available under s 60. Indeed, it was assumed by the applicants that the order in fact made allowed them to continue to operate, as if they held valid licences. 1. In King Eeducational Service Pty Ltd v Chief Executive Officer of the Australian Skills Quality Authority (No 2) [2021] FCA 183, Wheelahan J considered an appeal under section 44 of the AAT Act where the AAT affirmed a decision to refuse renewal of registration of the applicant. The applicant sought an order that the Tribunal's decision be stayed with retrospective effect and raised a question as to whether the Court's power under section 44A(2) of the AAT Act extends to retroactive effect. In considering this question, Wheelahan J considered section 60(2) of the ADR Act and cited Basten JA's dicta in AVS and made the following relevant comments at [50] to [52]: [50] The power under s 44A(2) of the AAT Act that the applicant seeks to have the Court invoke in the present case has two limbs to it. There is the power to stay, and there is the power otherwise to affect the implementation or operation of the Tribunal's decision and the decision under review. In my view, the latter limb of s 44A(2) includes the power to affect the operation or implementation of a decision of the Tribunal or of the primary decision‐maker that has already come into operation. Were that not so the latter limb provision, which is expressed in broad terms, would be stripped of much of its utility. I respectfully adopt the analysis of Sundberg J in Riverside Nursing Care, and consider that it is equally applicable to s 44A(2) of the AAT Act. The Court has wide powers under s 44(4) and (5) of the AAT Act to give final relief upon an appeal, which include the power to set aside a Tribunal's decision and to remit the case to be heard again. That is the substance of the relief that the applicant seeks in the present case. Whether in a particular case the exercise of a statutory power to set aside an administrative decision should operate from the date of the order, or ab initio, is a question that may arise for consideration: see, Jadwan Pty Ltd v Secretary, Dept of Health and Aged Care [2003] FCAFC 288; 145 FCR 1. [51] It is sufficient for present purposes to say that the applicant has made a claim for final relief that the Tribunal's decision be set aside ab initio, which is properly arguable. If the Court has power to grant that relief on a final basis, then applying the analysis of Sundberg J in Riverside Nursing Care, the Court has power to give corresponding relief on a temporary basis. That construction of s 44A(2) should be preferred over other interpretations, because it gives better effect to the purpose of s 44A(2) apparent from its text, namely as a remedial provision to secure the effectiveness of the hearing and determination of an appeal: see, Acts Interpretation Act 1901 (Cth) , s 15AA. [52] In AVS at [18] which I set out at [35] above, Basten JA posited the argument that an order that had the effect of reinstating a licence could be achieved by retrospectively varying the date from which the administrative decision was to have effect. Seen in this way, and having regard to the analysis by Sundberg J in Riverside Nursing Care, the power under s 44A(2) authorises orders that have a retrospective element to them. There are, however, different dimensions of retrospectivity which may be assessed by the extent to which orders of the Court affect substantive rights. Consistently with the observations of Kiefel CJ, Keane, Nettle and Edelman JJ in Esso Australia Pty Ltd v Australian Workers' Union at [49] –[50] , care must be taken in considering the exercise of any power with retrospective effect, in particular to consider whether there would be any inappropriate or unfair interference with rights. But these considerations go to the exercise of the power, and do not warrant the implication of arbitrary limits on the power itself: FAI General Insurance Company Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268 at 283 –284 (Wilson J). 1. I also adopt the reasoning of Wheelahan J in King Educational Service Pty Ltd and I am satisfied that given that the Builder is seeking review of the Decision to cancel his licence, that s 60(2) is wide enough to enable the Tribunal to restore a revoked licence with retrospective effect. 2. I am also satisfied given that the Builder currently has contracts on foot and on that basis the order should be made to take effect from 10 March 2022. Order 1. Accordingly, I make the following order: 1. The builder's licence (contractor Licence No 92385C) for all purposes is treated as on foot from 10 March 2022 until the final determination of the substantive application by the Tribunal in these proceedings. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 October 2022