Kheder v Building Commission NSW [2024] NSWCATOD 88

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kheder v Building Commission NSW [2024] NSWCATOD 88 Hearing dates: 13 June 2024 Date of orders: 28 June 2024 Decision date: 28 June 2024 Jurisdiction: Occupational Division Before: J D Little, Senior Member Decision: (1) The Decision under review is set aside. (2) The Applicant's contractor licence 324672C be varied to include the category of general building contractor licence under the Home Building Act 1989 (NSW). Catchwords: PROFESSIONS AND TRADES – Refusal of general building contractor licence– administrative review of decision – scope of experience. Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Home Building Act 1989 (NSW) Home Building Regulation 2014 (NSW) Texts Cited: None Category: Principal judgment Parties: Walid Mohamed Elsayed Kheder (Applicant) Building Commission NSW(Respondent) Representation: Self-represented (Applicant) J Coss (Respondent) File Number(s): 2024/00005037 Publication restriction: None

REASONS FOR DECISION 1. This case concerns review of a decision by the Respondent to refuse the application of the Applicant to vary his contractor licence to include the category of general building contractor licence under the Home Building Act 1989 (NSW) (HBA). 2. In 2020, the Applicant made application to vary his contractor licence to include the category of general building contractor licence under the HBA. That application was refused on 27 February 2020 with that refusal affirmed by way of internal review dated 10 June 2020. The refusal was stated to be the lack of relevant experience in that while the Applicant had gained 9 months of experience, he required an additional 15 months to equate to two years. 3. From 2020 to late 2023, the Applicant worked on various sites to obtain the experience that the Respondent had indicated he lacked in order to be granted a general building contractor licence. 4. On 20 July 2023, the Applicant again made application to vary his contractor licence to include the category of general building contractor licence under HBA. The Applicant relied upon experience gained from building work conducted at: 1. Primbee for 9 months from March 2018 to April 2019 (the Primbee Property) which had previously been accepted as relevant experience by the Respondent in 2020; 2. Greystanes for 11 months from 4 May 2020 to 16 April 2021 (the Greystanes Property); and 3. Balmoral for 16 months for the period from 18 July 2022 to 16 November 2023 (the Balmoral Property). 1. On 22 November 2023, the Respondent refused the application, citing sections 33C(1)(b)(i) and 33D(1)(b) of the HBA. 2. The reasons provided for the refusal again included that the Respondent was allegedly required to have two years acceptable relevant industry experience and the Applicant had not satisfied this legislative requirement. That refusal included the contention that the work at the Primbee Property was now not relevant experience (despite previously accepting that it was). 3. On 10 December 2023, the Applicant requested an internal review of the decision to refuse the licence pursuant to section 53 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act). 4. On 20 December 2023, the Respondent affirmed the original decision (the Internal Review). The Decision accepted that the nine months experience gained at the Primbee Property had been attained but rejected the other experience because: 1. The Applicant's remuneration in respect of the Greystanes Property was only sufficient to cover his expenses and the Applicant was not otherwise paid a wage or salary or other remuneration falling within the meaning of "Remuneration" as required by the Instrument (as defined in paragraph 18 below); 2. The experience gained at the Balmoral Property from 18 July 2022 to 23 December 2022 was not residential building work because it was described as excavating, site clearing, tree removing, retaining wall etc construction experiences. 3. The experience gained at the Balmoral Property from 16 January 2023 to 16 November 2023 was residential building experience but because the invoices were issued by WK Construction Services Pty Ltd (being a company owned and controlled by the Applicant and of which he is the director) the experience could not be attributed to the Applicant. 1. On 4 January 2024, the Applicant filed his application with this Tribunal for administrative review of the Internal Review. The Applicant's position is that the correct and preferable decision for this Tribunal is to set aside the Internal Review and replace it with a decision granting him a licence. 2. The Respondent's position is that that the correct and preferable decision for this Tribunal is to affirm the Internal Review to refuse the licence. 3. For the reasons that follow, and having considered all the circumstances, I find that the Internal Review to refuse the Applicant the Licence should be set aside, and that the licence should be granted to the Applicant.