Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Cumberland Building Pty Ltd v Commissioner for Fair Trading [2023] NSWCATOD 74 Hearing dates: 2 June 2023 Date of orders: 08 June 2023 Decision date: 08 June 2023 Jurisdiction: Occupational Division Before: T Simon, Principal Member Decision: (1) The proceedings are dismissed. Catchwords: ADMINISTRATIVE REVIEW – Home Building Act – refusal to remove – jurisdiction – decision refusing to remove a notation of work orders on the register – administratively reviewable decision. Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Home Building Act 1989 (NSW) Cases Cited: Preston v Commissioner for Fair Trading [2011] NSWCA 40 Category: Principal judgment Parties: Cumberland Building Pty Ltd (applicant) Commissioner of Fair Trading (respondent) Representation: Counsel: M Glavin (applicant) Solicitors: Watson Webb (applicant) Legal, Corporate Services, Department of Customer Service (respondent) File Number(s): 2023/00172277 Reasons for decision 1. On 30 May 2023, Cumberland Building Pty Ltd (the builder) lodged an application seeking review of a decision of the respondent (the Commissioner) refusing to remove a notation from the register which the Secretary is required to maintain under s 120 of the Home Building Act 1989 (NSW) (HB Act). 2. The builder also sought an interim order for the proceedings to be expedited. The Tribunal made directions requiring the parties to provide documents and submissions on whether there is any administratively reviewable decision in respect of which the Tribunal has administrative review jurisdiction. Having considered the written material and oral submissions of the parties, I find that there is no administratively reviewable decision and have determined to dismiss the proceedings. Background 1. The particulars on the register which the builder seeks to have removed, emerge from two proceedings which were determined in the Consumer and Commercial Division of the Tribunal. Those proceedings arose out of a contract for residential home building works, dated 26 April 2017, between the builder and a homeowner. The first proceeding, HB 20/26799 concerned a claim by the owner that included a claim for alleged defects and negligence. The second proceeding, HB 20/34533 was a claim by Cumberland Building Pty Ltd for outstanding amounts under the contract. 2. On 13 July 2021, the Tribunal decided both proceedings. Relevantly, order 1 was a work order that required the builder to perform certain rectification works within 12 weeks of the order. 3. Michael Roedl, the director of the builder states that Ross Theodosatos a project manager for the builder, attempted to call the owner to arrange to perform the works the subject of the work orders. Those calls were not taken, nor returned. 4. On 22 July 2021, Mr Kevin Pathinather, the builder's former solicitor, sent the owner an email seeking among other things, access to the residence to complete the rectification works the subject of the work order. There was no response to the email. 5. Mr Roedl states that the builder has always been ready, willing and able to comply with the work order, but the builder has not been able to complete the works because the owner has not provided access. 6. On 21 February 2023, Mr Roedl states that the builder attempted to renew its licence which was set to expire on 13 March 2023. He was informed that he was unable to do so because the work orders had not being complied with. The builder subsequently filed a completed 'Additional Details' section, noting its inability to comply with the work orders due to not being granted access by the owner. 7. On 8 March 2023, Mr Roedl received a letter from NSW Fair Trading advising that the license cannot be renewed due to the current work order. The letter relevantly stated: We are unable to process your application as we need more information from you in relation to: Outstanding NCAT order: We have completed a search of the NSW Civil and Administrative Tribunal (NCAT) records, and it has shown that an order made against Cumberland Building Pty Ltd. (Contractor License number 39380) on 13/07/2021 has not been complied with. A copy of orders, HB 20/26799 and HB 20/34533, are attached. We cannot proceed to assess your application while there is an outstanding NCAT order against your existing license record. It is acknowledged that the customer has not allowed you access to complete the work as per the NCAT work order. The letter sent to NCAT dated 21-02-2023 has no response attached. You should consider filing the Notice to Renew Proceedings application form. As the status of the HB HB [sic] 20/26799; HB 20/34533, is still outstanding we are unable to proceed with determining your license renewal for 39380. 1. The builder lodged a 'Renewal of Proceedings' application with the Tribunal on 8 March 2023. Mr Roedl states that the builder subsequently withdrew that application because a renewal application can only be made by a party in whose favour order made, in this case being the owner: cl 8, sch 4 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). 2. On 9 March, Mr Roedl's licence was renewed for a further year until March 2024. 3. On 15 March 2023, NSW Fair Trading notified Mr Roedl's that: As discussed your individual licence has been renewed for the term of 1 year only and NOT the 5 you applied for. This will give you the time to contact NCAT to have them either vacate the order or have the matter reheard. NOTE once you get the outcome or are able to show compliance with the NCAT order you need to inform NSW fair Trading within 7 days so we can take the alert of both your company and individual licence. (this will allow online renewal) We request you have the above matter at least listed by NCAT before 17/07/2023 when your company licence for Cumberland is due for Renewal as Noncompliance or a vacated order will also delay the company renewal. 1. On 23 March 2023, the builder lodged an application to the Commissioner to remove the notation of the work order from the register. Mr Roedhl also made a statutory declaration in support of the application. Mr Roedhl states that despite repeated requests, the Commissioner did not respond to that application. 2. The builder relies on s 86 (2) (a) of the HB Act which deems that the application to remove the notation is refused. Section 86 relevantly provides: (2) The Secretary is to be taken to have refused any application that has not been withdrawn if the Secretary has not served on the applicant notice of the decision on the application— (a) within 40 days of its being lodged with the Secretary… 1. It is the decision to refuse to remove the notation from the register which the builder seeks to have administratively reviewed. Is the decision to refuse to remove the notation from the register an administratively reviewable decision? 1. Section 28 of the NCAT Act provides that the Tribunal "has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation". 2. Section of 55 the Administrative Decisions Review Act 1997 (ADR Act) provides that the Tribunal only has jurisdiction to review "an administratively reviewable decision". An administratively reviewable decision is "a decision of an administrator over which the Tribunal has administrative review jurisdiction": s 7 ADR Act. Section 9 of the ADR Act provides that the Tribunal has administrative review jurisdiction over a decision of an administrator "if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision". The "enabling legislation" is legislation that provides for applications to be made to the Tribunal with respect to a specified matter or class of matters, or otherwise enables the Tribunal to exercise functions with respect to a specified matter or class of matters: ADR Act, s 4(1); NCAT Act, s 4(1). The Home Building Act 1. Section 48S of the HB Act requires the Tribunal to inform the Secretary of any order made and of the time limit for compliance with the order. 2. Section 120 of the HB Act requires the Secretary to maintain a register, as soon as practicable after making the order. Sub-section 120 (3) (e) requires including particular of: (e) any instance of non-compliance with a Tribunal order to do work or to pay money, 1. Sub-section 120 (4) allows the Secretary to: .. remove any particular from, or otherwise amend, the register if the particular is shown to the satisfaction of the Secretary to be, or is to the knowledge or in the opinion of the Secretary, false, erroneous, misleading or unfairly prejudicial to the interests of the holder of the contractor licence... 1. Section 83B of the HB Act relevantly provides as follows: (1) An applicant for the issue, alteration, renewal or restoration of an authority aggrieved by any decision of the Secretary relating to the application may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision. (2) The holder of an authority aggrieved by any decision of the Secretary to alter an authority or to cancel a provisional authority may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision. … 1. "Authority", is defined by s 83A of the HB Act as: (a) a contractor licence (whether or not an endorsed contractor licence), or (b) a supervisor or tradesperson certificate, or (c) an owner-builder permit, or … (d) an owner-builder permit under the regulations. Condition which has altered the Authority 1. The builder submits that the notation is a condition on the authority and therefore the decision refusing to remove the notation is an alteration to the authority. 2. The builder submits that both ss 83B (1) and (2) of the HB Act are, for the purposes of ss 7 and 9 of the ADR Act, enabling legislation which grants jurisdiction to the Tribunal to review the decision to refuse to remove the notation from the register. They submit that the proceedings concern the builders contractor license and therefore these proceedings are an application that concerns an "authority" for the purposes of s 83B of the HB Act. 3. Preston v Commissioner for Fair Trading [2011] NSWCA 40 involved an appeal from the decision of the former Administrative Decision Tribunal, which found that a decision to reprimand the holder of an authority was not a decision to "impose a penalty" and the Tribunal did not have jurisdiction to review the decision. In the appeal the appellant submitted that the decision to reprimand fell within subsections 83B (1) and (2), because his authority had been altered by the issue of the reprimand. Campbell JA (with whom Tobias and Young JJA agreed) did not accept that submission: - at [49]. 4. His Honour went on to relevantly state at [60] – [62]: 60 In my view, an alteration of authority, referred to in section 83B(1) and (2), is a change in a matter that is set out in the authority itself, such as the scope of work it permits, or the period of time during which it operates, or the conditions upon which activities may be carried out pursuant to the authority. There is no statutory requirement, or statutory authorisation, for the fact that a reprimand has been issued to be noted on the authority itself. Thus the issuing of the reprimand is not an alteration of the authority. 61 The Appellant also submits that the ADT has jurisdiction to review the issuing of the reprimand by virtue of section 83B(3)(b) and clause 81(1)(a) HB Regulation (set out at [29] above). The reasons I have already given show that the decision to issue a reprimand is not "a decision to vary an authority" at all. Further, as that reprimand does not impose a condition on the authority, the decision to issue the reprimand is not "a decision to vary an authority by imposing a condition on the authority". 62 It follows from the argument so far, that the only possible basis upon which the Appellant might have had a right to have the decision to issue him with a reprimand reviewed by the ADT is if section 83B(3)(a) applies because the decision to reprimand is a decision to "impose a penalty". 1. Section 36 of the HB Act provides as follows: (1) An authority is subject to— (a1) the conditions set out in Schedule 3 for the authority, and (a) any conditions prescribed by this Act or the regulations for authorities of the same kind, and (b) any conditions imposed by order of the Secretary and set out in it when it is issued, except to any extent that they may be inconsistent with conditions referred to in paragraph (c), and (c) any conditions imposed by order of the Secretary and set out in a notice served on the holder of the authority. 1. "Condition" is defined in cl 6 of sch 1 to the HB Act. That section reads: In this Act, a reference to conditions includes a reference to terms, restrictions and prohibitions. 1. The notation of the non-compliance with a Tribunal order to do work is not a term, restriction or prohibition on the authority. Further, the notation does not meet any of the condition categories contained in s 36 (1) of the HB Act. 2. The notation in these circumstances, is not, as was set out in Preston, 'a change in a matter that is set out in the authority itself, such as the scope of work it permits, or the period of time during which it operates, or the conditions upon which activities may be carried out pursuant to the authority'. 3. The decision to note the non-compliance on the register is not "a decision to vary an authority". Further, as that notation does not impose a condition on the authority, the decision to issue the reprimand is not "a decision to vary an authority by imposing a condition on the authority". 4. Accordingly there has been no alteration to the builder's authority as envisaged by section 83B(1) and (2) of the HB Act and the decision not to remove the notation is not an administratively reviewable decision. 5. Section 55(1)(b) of the NCAT Act provides that: (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances- … (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, 1. Given I have found that the decision refusing to remove the notation is not an administratively reviewable decision and the Tribunal has no power to make orders of the kind sought by the applicant and this matter does not fall within the Tribunal's jurisdiction. On that basis the application is misconceived and lacking in substance and accordingly I dismiss the proceedings pursuant to s 55(1)(b) of the NCAT Act. Orders I make the following orders: 1. The proceedings are dismissed ********** 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: 08 June 2023