Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mehieddine v Commissioner for Fair Trading [2022] NSWCATOD 178 Hearing dates: 18 February 2022 Date of orders: 8 July 2022 Decision date: 08 July 2022 Jurisdiction: Occupational Division Before: C Mulvey, Senior Member Decision: The decision of the respondent made on 18 November 2021 is affirmed. Catchwords: ADMINISTRATIVE LAW – Home Building Act – Contractor licences – general building work – relevant experience Legislation Cited: Administrative Decisions Review Act 1997 Home Building Act 1989 Licensing and Regulation (Uniform Procedures) Act 2002 Cases Cited: Sterjovski v Director-General, Department of Transport [2002] NSWADT 10. Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 Category: Principal judgment Parties: Ali Mehieddine (Applicant) Commissioner for Fair Trading (Respondent) Representation: Solicitors: Applicant (Self-represented) Department of Customer Service - Respondent File Number(s): 2021/00350936 Publication restriction: None REASONS FOR DECISION Introduction 1. Mr Mehieddine has applied to the Tribunal for a review of the decision to refuse his application for a contractor's licence in the category of general building work ("licence application"). The Commissioner for Fair Trading, who is the respondent in this matter, refused that licence application because Mr Mehieddine had not demonstrated that he had satisfied the experience requirements and attained a minimum of two years acceptable relevant industry experience in a wide range of building construction work. 2. The respondent affirmed its decision on internal review on 3 December 2021. 3. Mr Mehieddine lodged his application for review in this Tribunal on 10 December 2021. The application has been lodged within the required time. Relevant legislation 1. The Home Building Act 1989 (the Act) provides for the regulation of home building and specialist work in NSW. Requirement to be licensed 1. Section 19(1) of the Act provides that the Secretary may grant contractor licences for the purposes of this Act. 2. Section 20(3)(a) of the Act specifies that the Secretary must refuse to grant an application for a licence, if, the Secretary is not satisfied that any such requirement would be met were the contractor licence to be issued. Requirements for granting of a licence 1. Section 20(2) of the Act provides: (2) The Secretary may, by notice published in the Gazette, specify qualifications and experience, or additional standards or other requirements, required to be held or met by an applicant for a contractor licence. (3) The Secretary must refuse an application for a contractor licence if-- (a) the Secretary is not satisfied that any such requirement would be met were the contractor licence to be issued, or (b) the Secretary is not satisfied with the applicant's proposed arrangements for supervision of the work which the contractor licence will authorise the applicant to contract to do, or (c) the Secretary is not satisfied that the applicant has complied or is able to comply with any requirements of Part 6 or any requirements of the regulations relating to insurance applicable to the doing of work of a kind proposed to be authorised by the contractor licence. (5) A decision of the Secretary relating to the specification of qualifications and experience, or additional standards or other requirements under subsection (2) cannot be reviewed by the Tribunal in an application for an administrative review made under this or any other Act. … 1. Section 33C of the Act relevantly, provides: (1) A contractor licence must not be issued unless the Secretary is satisfied that-- (a) the applicant has, or proposes to have, such numbers of nominated supervisors for the contractor licence as the Secretary considers are needed to ensure that all work for which the contractor licence is required will be done or supervised by qualified individuals, and (b) the applicant, if also applying for an endorsement of the contractor licence to show that it is the equivalent of a supervisor certificate— (i) satisfies the requirements of section 33D for the issue of a supervisor certificate to the applicant, and … 1. Section 33D of the Act provides: 1. A supervisor or tradesperson certificate must not be issued unless the Secretary is satisfied that the applicant— (a) has such qualifications or has passed such examinations or practical tests, or both, as the Secretary determines to be necessary to enable the applicant to do, or to supervise, the work for which the certificate is required, and (b) has had experience of such a kind and for such a period as the Secretary considers would enable the applicant to do, or to supervise, the work for which the certificate is required, and (c) is capable of doing or supervising work for which the certificate is required. 1. In Schedule 1 of the Act "Secretary" means "the Commissioner for Fair Trading". 2. Schedule 4 (Savings and transitional provisions) of the Act provides: Part 27 - Provisions consequent on enactment of Building Legislation Amendment Act 2021 159 QUALIFICATIONS AND EXPERIENCE REQUIRED BY LICENCE AND CERTIFICATE APPLICANTS (1) For the purposes of section 20(2), a notice published in the Gazette before the commencement of the amending Act, specifying the qualifications and experience required to be held by an applicant for a contractor licence, is taken to have been validly made and to be valid on and from the date the notice was published. (2) For the purposes of section 25(2), a notice published in the Gazette before the commencement of the amending Act, specifying the qualifications and experience required to be held by an applicant for a supervisor or tradesperson certificate, is taken to have been validly made and to be valid on and from the date the notice was published. (3) In this clause— "amending Act" means the Building Legislation Amendment Act 2021 . 1. The relevant experience required, as published in the NSW Government Gazette no. 52 on 28 April 2017, provides: "Experience" means experience gained by the applicant as: (a) an employee of; or (b) a holder of a supervisor certificate and as a nominated supervisor for the contractor licence held by; or (c) a holder of an endorsed contractor licence contracted to; or (d) a holder of a supervisor certificate in the capacity of a nominated supervisor for a contractor licence held by an individual, partnership or corporation contracted to; or the holder of a contractor licence authorising the holder to do the class of residential building work in which the experience was gained ("the Work"), where the applicant, during the relevant period, was: * supervised and directed in the doing of the Work by the holder of an endorsed contractor licence or supervisor certificate authorising its holder to supervise the Work, and this is verified in the Relevant Application Form; and * received Remuneration in accordance with law for the Work which the applicant carried out; or … "Relevant Application Form" means the relevant application form for the Licence or Certificate that is being applied for, which is published on the NSW Fair Trading website, including the required attachments to that form. (Note – Applications are to be made in accordance with section 12 of the Licensing and Registration (Uniform Procedures) Act 2002); … 1. To successfully complete the experience requirement, Column 2 of Table A to Schedule 1 of the Gazette requires: At least two years' relevant industry Experience in a wide range of building construction work, where the majority of that Experience was obtained within 10 years of the date on which the application is made; 1. Section 12 of the Licensing and Regulation (Uniform Procedures) Act 2002 provides for the procedure in making applications and the information as is required by the legislation. 2. As the delegates of the respondent are bound to apply the experience requirements, I find the Tribunal is also so bound, when, conducting an administrative review of a decision to refuse an application for the granting of a licence under this provision. 3. I am satisfied that I must give effect to the requirements of the Instrument in this application. Role of the Tribunal on review 1. The role of the Tribunal on review is to review the respondent's decision and to make the correct and preferable decision. See Sterjovski v Director-General, Department of Transport [2002] NSWADT 10. 2. The Tribunal may take into account new information not previously before the decision maker. See Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409. 3. In accordance with s 63 of the Administrative Decisions Review Act 1997, the Tribunal may affirm, vary or set aside the original decision. The issues 1. The respondent refused Mr Mehieddine a building contractor licence because she was not satisfied that he had demonstrated a minimum of two years relevant industry experience. 2. The Respondent considered that one of Mr Mehieddine' referees had not been a licensed contractor during part of the time of supervising Mr Mehieddine. Evidence of experience relied upon by Mr Mehieddine 1. Mr Mehieddine contends that he has the following experience that has not properly been considered by the Respondent: 50 Hodge Street, Hurstville 1. Mr Mehieddine claims experience working on this site from 25 October 2020 to 31 December 2021, more than 12 months. In Mr Mehieddine' documents is a reference from Mr Alaa Salameh of Tier One Constructions Pty Ltd which states: This is to certify that Mr Ali Mehieddine Has managed the site project build of address 50 Hodge St Hurstville which has HBCF insurance under my builder licence and it was agreed for – Mr Mehieddine has worked on the project under my and his registered builder supervision. The contract date started 13/1/ 2021 until the date of this letter 1. Mr Mehieddine states he was not employed by Tier One, as he was working under the supervision of Mr Salameh in order to achieve practical experience. Mr Mehieddine said he was the supervisor at the site and his experience included; Establishing project plan baseline , defining the project scope, lead hand and supervising all construction activities, ensuring safety guidelines are followed on the job site managing a budget for the project including supplies, materials and labour. 2. Mr Mehieddine agreed that he was the joint owner of the Hodge Street site through a company Almajd Construction Pty Ltd ("Almajad"). 3. In written submissions Mr Mehieddine states as follows: 'It was agreed that myself Ali Mehieddine will be the site build Manager (Builder) of the site under my registered Builder supervision (DHB Construction) as well as under Tier One construction supervision in order to add this site experience to my records for the plan builder Licence Application.' 1. Mr Mehieddine states that during the period of 2 years between 2020 and 2021 he undertook experience at the following projects under the licensed builder DHB Construction Pty Ltd at 707 King Georges Road, Penshurst, 42 Wellington Road, Hurstville, 154 Rex Road, Georges Hall, and the Hodge Street site. 2. In Mr Mehieddine's evidence tendered in support of his application, Mr Daoud Khanafer, the nominated supervisor of DHB Construction Pty Ltd ("DHB") provided a referee statement which sets out the following experience undertaken by Mr Mehieddine as an employee at the following sites: 3. 5 July 2019 to 20 February 2020 (7 months and 15 days) at 707 King Georges Road Penshurst; 4. 15 September 2009 to 30 June 2020 (9 months and 15 days) at 42 Wellington Road Hurstville; 5. 28 February 2020 to 10 October 2020 (7 months and 12 days) at 154 Rex Road Georges Hall; 6. 5 February 2021 to 10 July 2021 (5 months and 5 days) at the Hodge Street site. 7. Mr Mehieddine submits that this experience exceeds the 2 year requirement and that he should be granted a licence. Experience relied on by the respondent 1. The respondent submits the following in relation to the work experience claimed by Mr Mehieddine. 154 Rex Road, Georges Hall (Georges Hall site) 1. The respondent contends that the experience claimed for at the Georges Hall site cannot be accepted from the period February 2020 to 10 October 2020. 2. In a letter dated 23 October 2021, from Mr Khanafer addressed: "To whom it may concern" states: 'This is to certify that DHB Construction P/L has worked as a builder on site project address at 154 Rex Road Georges Hall under Al Ghadeer Construction HBCF insurance started on 5/02/2020 and completed on 10/OCT/20201 [sic]. This was part of our agreement to cooperate in the workload for both of our companies and also to provide Mr Mehieddine the opportunity and necessary practical experience needed for this interval of time.' 1. Annexed to the s 58 documents is a builders licence record of DHB (licence number 325595C) which shows that the licence expired on 28 June 2020. There is no evidence before me that the licence was either renewed or restored. The respondent submits that DHB held no licence from 29 June 2020 to 31 January 2022 and as such it was therefore implausible that DHB worked as a builder on the site for the period which is alleged by Mr Mehieddine and as set out in the letter of Mr Khanafer. 2. In a further letter of 17 November 2021, Mr Khanafer states that DHB was not the builder and controller in charge at the Georges Hall site and says DHB: "Had a mainly consultant role on "this site" and "visited once per fortnight"; that "[a]ll work on the site … was signed off by the builders in charge"" 1. The builder in charge being Mr Mehieddine's company Al Ghadeer. 2. I find that DHB, who Mr Mehieddine was employed by, was not the builder for the Georges Hall site as it became unlicensed from 28 June 2020. I, therefore, do not accept the on site building experience form signed by Mr Khanafer on 13 July 2021 included in the application for a Builder's Licence by Mr Mehieddine accurately reflects the purported experience. At its highest, the experience could only be counted up until the date of 28 June 2020 when DHB became unlicensed. 3. The respondent also contends that due to Mr Khanafer's admission that he 'had mainly a consultant role on' the Georges Hall site and only 'visited once per fortnight', it is improbable that he also had supervised work on site in accordance with the declaration he made on 13 July 2021. Further, the respondent alleges that Al Ghadeer was the builder for this site and its nominated supervisor was responsible for supervision on the worksite. Therefore, Mr Khanafer could not have been. The respondent says this is supported by Mr Khanafer's statement 'all work on the site … was signed off by the builders in charge'. I accept these submissions and find that Mr Khanafer could not have been the nominated supervisor in these circumstances. 4. I am not satisfied that Mr Mehieddine has established that this experience should be counted towards the requisite 2 year period. 50 Hodge Street, Hurstville 1. In Mr Khanafer's referee statement dated 9 July 2021 accompanying Mr Mehieddine's experience form dated 13 July 2021, declared that he was the builder in control of the Hodge Street site from 5 February 2021 to 10 July 2021. 2. In a further letter dated 23 October 2021 Mr Khanafer states: 'This is to certify that I have worked on the site project of address 50 Hodge Street Hurstville started 05/02/2021 - up to as a builder under Tier One Construction HBCF insurance. This was a part of an agreement between my company builder and Tier One Construction builder as Mr Ali Mehieddine who works for my company is the homeowner of the proper [sic] under his company named Almajd Constructions. Mr Ali Mehieddine was assigned to manage and complete the build work upon completion.' 1. I am not satisfied that Mr Khanafer's statements can be accepted. Mr Khanafer could not have been, either the builder in control or a supervisor of work carried out on this site, given he did not hold any licence or certificate under the Home Building Act during that period. I find this as Mr Khanafer's contract licence number 321723C expired on 14 March 2021 and was neither renewed nor restored. Also, his qualified supervisor certificate number 92025S was only issued on 1 February 2022. 2. As stated above, DHB's licence (number 325595C) expired on 29 June 2020, that being before the work at the Hodge Street site commenced on 5 February 2021. This finding is supported by the Home Warranty Insurance Certificate Number HBCF21002595 for the Hodge Street site being issued to Tier One Building and not DHB. 3. Therefore, I am not satisfied that the experience sought to be included by Mr Mehieddine for this site should be included in the calculation of his experience for the issue of a builder's licence. 4. I also have placed no weight on letters provided by Mr Alaa Salameh, Tier One's nominated supervisor, dated 20 December 2021 and Mr Falah Farris, the nominated supervisor of Al Ghadeer dated 8 December 2021. At no stage was Mr Mehieddine an employee of either Al Ghadeer or Tier One. As such, I find it implausible that he was under the supervision and direction of either Mr Farris or Mr Salameh as required by the provisions set out above. Further grounds for administrative review 1. Mr Mehieddine in his grounds seeking a review of the respondent's decision stated: 'Owner of the site: Almajd Construction (70%) and AW Wehbi Investment (30%) Almajd Construction Pty Limited owned by myself Ali Mehieddine the sole Director of the company. Home warranty insurance acquired on 18/1/2021 under Tier One Construction builder due to issues with my registered builder quota, it was agreed that myself Mr Ali Mehieddine will be the site build manager (builder) of the site under my registered builder supervision (DHB Construction) as well as under Tier One Construction supervision in order to add this site experience to my records for the plan builder Licence Application. Design and planning work started NOV-2020 Home warranty 18/1/2021 and CDC approval 25/1/2021 On site Build work started 28/1/2021 - ongoing up to this date.' 1. In correspondence to the respondent dated 10 February 2022, Mr Mehieddine refers to the agreement between DHB and Tier One as being: 'Tier One Construction is to provide home warranty insurance and do the carpentry work while I do the build management under both builder supervision, DHB Construction (my registered builder) and Tier One Construction and since my company is the owner of the site, it was agreed that my company Almajd Construction act as a subcontractor and charge for the management and supervision work while Tier One Construction get paid for its services (builder and carpentry work).' 1. There is no evidence before me that Almajd holds a licence under the Act. I, therefore, find that Almajd could not have enter into a contract for "the management and supervision" of residential building work. 2. I am also not satisfied that Mr Mehieddine himself, via his company, can undertake building management under a subcontract agreement. Conclusion 1. For the reasons as set out above, I am not satisfied that Mr Ali Mehieddine can count the work undertake at the Hodge Street site and the Georges Hall site as part of his experience to be calculated in his application for a licence. 2. I am not satisfied Mr Mehieddine meets the criteria as set out in paragraph [13] and I find the decision of the respondent should be affirmed. Orders 1. The decision of the respondent made on 18 November 2021 is affirmed. ********** 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: 16 December 2022