Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Tom v Commissioner of Fair Trading [2024] NSWCATOD 158 Hearing dates: 6 – 9 November 2023, 13 May 2024 Date of orders: 25 September 2024 Decision date: 25 September 2024 Jurisdiction: Occupational Division Before: T Simon, Principal Member Decision: (1) The decision of the respondent made on 10 March 2022 is set aside. (2) In substitute of the decision Mr Tom is reprimanded. (3) If either party seeks costs of the proceedings, they are to notify the Tribunal by 27 September 2024. 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) —improper conduct — fit and proper person Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Building Legislation Amendment Bill 2023 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Home Building Act 1989 (NSW) Cases Cited: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 Tom v Commissioner of Fair Trading [2022] NSWCATOD 57 Webster v Tom [2018] NSWCATCD 6 Webster v Tom [2019] NSWCATAP 75 Category: Principal judgment 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. The applicant, Mr Andrew Tom, is a builder who has made an application to the Tribunal for administrative review of a decision made by the Commissioner for Fair Trading (the Commissioner). The decision resulted in cancellation of the Mr Tom's builders licence and disqualified him from holding an authority for a period of three years. Background 1. On 20 May 2009 Mr Tom (the builder) entered a contract with Marc and Deidree Webster (the Websters) to build a residential house. The work achieved practical completion on 4 December 2009. 2. On 12 April 2015 the Websters submitted a complaint to NSW 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. 3. In a letter from the Home Building Service of NSW Fair Trading dated 5 June 2015 it was recommended that the Websters progress their complaint to NCAT. 4. On 28 November 2015 the Websters lodged an application in the Consumer and Commercial Division of this Tribunal (CCD Proceedings). 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. On 8 March 2018 the Tribunal determined that the builder was 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. 5. 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. 6. On 25 May 2019 the Websters and the engineer who they had engaged to provide expert evidence 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 asking for the decision to be reviewed. 7. On 12 June 2020 the Building Commissioner, David Chandler and NSW Fair-Trading Senior Building Inspector, Garry Christy, attended the Websters' property to conduct a site inspection. 8. On 14 April 2021, over ten months after the inspection, Fair Trading conducted an interview with the builder with his solicitor present. 9. 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. 10. On 4 February 2022, the builder replied to the "Notice to show Cause" which had been issued on 10 December 2021 and Fair Trading proceeded to cancel the builder's licence on 10 March 2022. 11. On 11 March 2022 the builder, made the application to the Tribunal for administrative review of the decision made by the Commissioner. On 21 April 2022, the Tribunal made an interim order for the builders licence to remain on foot until the final determination of these proceedings. 12. These proceedings were heard over four days (and a later final day for closing oral submissions). Preliminary Issues The CCD Proceedings 1. It is helpful to begin by outlining the relevant parts of the reasons for decision in the CCD Proceedings. At [15] – [23] of the reasons for the decision, the Tribunal set out the Websters case: 15 In Points of Claim dated 27 June 2016 the owners claimed that the contact documents included drawings by Mr Biddle and structural drawings prepared by Mr Jenkins (the 'engineer'). They claim that the builder engaged the engineer to carry out a geotechnical investigation of the site and to prepare the structural drawings. 16 The owners further allege that the building works were completed on 4 December 2009. 17 At paragraph 12 of the Points of Claim the owners allege that the builder has, in breach of the contract, carried out defective work, particulars of which are provided. It is further alleged that in breach of contract the builder constructed a dwelling which was not fit for habitation as a dwelling. 18 It is also alleged that the dwelling constructed by the builder was not fit for purpose as a dwelling. 19 The procedure of the Tribunal does not make the use of pleadings mandatory. However when a party who is legally represented files and serves Points of Claim I will, subject to what is stated later in these Reasons, proceed on the basis that such Points of Claim set out the essential basis of the claim against the respondent. 20 There are a number of complaints made by the owners. However the main issues raised by them are that : (a) The site material was incorrectly classified as class S when the site should have been classified as class H2; (b) There is substantial and ongoing cracking both internally and externally; (c) The slab and footings have failed; and (d) Doors and windows are sticking in their tracks or have dropped from their original placement. 21 The owners also filed submissions in the Tribunal which state that the slab and footings are contrary to the BCA requirements and are not fit for purpose because they are unlikely to provide acceptable levels of serviceability and safety of the residence during its design life. The relevant BCA provisions said to have been breached were not identified. 22 The issue of who contracted with the engineer to carry out the geotechnical inspection and to prepare the structural drawings is identified in the owners' submissions as an important issue. 23 The owners' technical case is based on reports from Messrs Nowlan, Niland and Tozer. Mr Niland prepared 2 geotechnical reports in which he assessed subsurface conditions and provided comments on the engineer's site classification in accordance with AS 2870 – 2011 and AS 2870 – 1996. Mr Tozer prepared two reports which give an opinion on the engineer's footing and slab design with some reference to AS 2870. Mr Nowlans' reports address the defects with reference to AS 2870 and the Guide to Standards and Tolerances and provides a scott schedule on behalf of the owners. 1. The reasons go on to detail that the builder submits that he is not liable to the owner because the design and the construction of the foundations were not defective. If he is found liable, the builder had brought separate proceedings claiming that Mr Colin Jenkins, the engineer was liable to indemnify him against any amount he may be ordered to pay to the owners. 2. The builder relied on expert evidence of Mr Hammond which was contained in three reports. 3. The Tribunal [at 28] set out that the Websters claim related primarily to a geotechnical report and an engineering design prepared by Mr Jenkins, the engineer. The Tribunal found that the owners were responsible for engaging Mr Jenkins. The Websters had not acted against Mr Jenkins. 4. The Tribunal found that there were 2, possibly 3, category 3 cracks and that there is a prospect of future cracking but rejected the evidence that cracking was significant. The Tribunal then went on to consider whether the builder had breached statutory warranties. 5. The Tribunal first dealt with the Websters allegation that there has been a breach of section 18B(A) of the Home Building Act 1989 (NSW) stating that the builder had carried out defective building work and work which is contrary to the requirements of the plans and specifications, the Building Code of Australia and applicable Australian Standards because: 1. The site material was incorrectly classified as Class S when the site should have been classified as Class H2. The Tribunal went on to find that the builder's scope of work was not to classify the site material and so this matter did not fall within the warranty. 2. The slab and footing system were structurally inadequate to support loads from the dwelling. 3. The piers to the dwelling if they have been constructed, have failed, and do not support the structure. 1. In relation to the slab and footing system, in his report of 1 June 2016 Mr John Tozer, the expert for the Websters had stated that the strip footing detail did not comply with Australian Standards which required footings for a house such as the one that was being constructed to be 400mm deep, not 250mm deep as shown on the engineer's design. He stated that the footings were well under designed. 2. Mr Jenkins, the engineer who drew the plans gave evidence that in designing the slab and footings for the owners' residence he used locally proven designs and alternative designs in accordance with engineering principles, as permitted by section 4 of AS 2870 - 1996. 3. Mr Hammond on behalf of the builder, in reply to Mr Tozer' stated that Australian Standard 2870 does not designate as a requirement the footing sizes asserted by Mr Tozer. In that regard the dimensions referred to by Mr Tozer are "deemed to comply" dimensions contained in section 3 of AS 2870. 4. The Tribunal found that Mr Tozer's evidence was wrong insofar as it stated or inferred that the builder was required to and failed to construct footings to a depth of 400mm. The Tribunal accepted Mr Hammond's evidence in that regard. The Tribunal also found that Mr Tozer's evidence did not establish that the slab and footing system were structurally inadequate to support loads from the dwelling. The Tribunal went on to state at [89] of the reasons for the decision: … Mr Tozer does not give an opinion about the slab being inadequate. In that regard he states that the slab edge beam and footing detail is structurally adequate (albeit barely) to span 2.5m between pier centres. At its highest his evidence is that: 'the cracking to the house indicates that either the slab or footings are inadequate for the soil, or the proposed piering has not been undertaken or not been completed sufficiently well.' The above statement is a conclusion that is not supported by analytical reasoning process. To the extent that it is based on the fact that footings are not 400mm in depth it is flawed. It seems to be a conclusion that is based on the fact cracks exist and the footings are stated, incorrectly, not to comply with AS 2870 as regards depth. I find that the owners have not established by evidence that gives me a sense of actual persuasion in favour of their contention, that the slab and footing system was structurally inadequate to support loads from the dwelling. At best the owners have established that the footing system was inadequate to prevent 2 category 3 cracks, 2 category 2 cracks and 6 category 1 cracks in the external masonry. The category 1 and 2 cracks should I find based on the statement in B3 of Appendix B of AS 2870 – 1996 be regarded as normal maintenance issues. In addition Mr Tozer raises another issue which, if accepted, would establish a breach of this warranty. That is that the footings are only 200mm deep, not 250mm deep as shown on the engineer's drawing. Mr Hammond addresses this issue in his 12 September 2016 report. He states that he had an excavation undertaken adjacent to the footing at the point where Mr Tozer had nominated a 200mm footing depth and no piers. He also states that he undertook excavations at 4 other locations along the eastern side of the house to check footing depths and pier locations. He states that he found minimum footing depths of 250mm and maximum depths of 300mm. I accept Mr Hammond's evidence in connection with issue of footing depth. As a result I reject Mr Tozer's evidence that footings are only 200mm deep. Mr Hammond indicated that he examined this issue by the undertaking of excavations along the eastern side of the house. Mr Tozer's evidence was that he dug adjacent to the footings and probed with a metal rod. I prefer and accept Mr Hammond's evidence since in my view he went about the investigation of these issues in a more systematic and careful way. In addition, witnesses from the Clarence Valley Council were called as witnesses regarding their inspections of footings and slab. I find based on their evidence that they checked the footing and piers and that the work that the builder had carried out in the construction of the footings, piers and slab complied with the details shown on the engineer's drawing. Exhibit E confirms this evidence. I find that the owners have not established that contrary to the engineer's drawing the footings were only 200mm deep. 1. The Tribunal then went on to consider whether the piers to the dwelling if they have been constructed, have failed, and do not support the structure. 2. The Tribunal records at [97] of the reasons that Mr Tozer states that he dug adjacent to the footings and probed with a metal rod leading him to state that was no sign of any piers. 1. In relation to Mr Hammonds evidence the Tribunal recorded [98] – [100]: 98 Mr Hammond also addresses this issue in his 12 September 2016 report. He states that he had an excavation undertaken adjacent to the footing at the point where Mr Tozer had nominated a 200mm footing depth and no piers. He states that he undertook excavations at 4 other locations along the eastern side of the house to check footing depths and pier locations. He states that at each location there was a pier under the footing. 99 I accept Mr Hammond's evidence in connection with issue of the existence of piers. As a result I reject Mr Tozer's evidence that there is no sign of any piers. Mr Hammond indicated that he examined this issue by the undertaking of excavations along the eastern side of the house. Mr Tozer's evidence was that he dug adjacent to the footings and probed with a metal rod. I prefer and accept Mr Hammond's evidence since in my view he went about the investigation of this issue in a more systematic and careful way. 100 For the reasons provided above I do not accept that the owners have established that the builder was in breach of section 18B(a) as regards piers. 1. The Tribunal found that there had been no breach of s 18B(c) of the Home Building Act and that that the builder had not failed to do the work with any other law or breach of 18B(e) of the Home Building Act that the builder has constructed a dwelling that is not fit for occupation as a dwelling or s 18B(f) of the Home Building Act. 2. The Tribunal considered whether there would be ongoing cracking to the property. In that regard the Tribunal set out the evidence of Mr Tozer at [133] – [134] of the reasons: 133 In paragraph (F) of his report dated 1 June 2016 Mr Tozer states that the engineer's footing and slab design is inadequate for the soil classification and that rectification would require 'gutting' the house and installing reinforced concrete footings through the slabs. His rectification methodology while not requiring the total demolition of the residence would nonetheless be a highly destructive process. It is after making those remarks he states that: 'I would expect this house to exhibit more and more signs of distress over time' 134 In the final paragraph of his report, Mr Tozer states that his opinion is that the only practical option is to demolish the residence which I understand him to mean is a better option than the repair that he refers to in paragraph (F) of his report. 1. The Tribunal went on to conclude regarding Mr Tozer's evidence: 135 Considering the remark referred to above in context of the paragraph which it concludes, I find that Mr Tozer's opinion to be somewhat superficial and lacking a reasoning process. The reasons for this finding follow. First, it is in my view important to consider this remark in context of the facts that I have found, namely that even if one has regard to Mr Nowlan's report, there were only 3 category 3 cracks present. Secondly there is a lack of a reasoning process by Mr Tozer to give credence to his expectation of more signs of distress. Thirdly, he does not address the fact that only 2 or 3 category 3 cracks appeared in the external masonry in a period of 7 years after the date of practical completion and as at the date of his report. Mr Hammond prepared a report dated 12 September 2016 which addresses Mr Tozer's 1 June 2016 report and paragraph (F). He states that the building, with some minor repairs, will exhibit normally acceptable levels of damage as described in AS 2870 – 1996. 1. Having considered the evidence including that of Mr Hammond, the Tribunal went on to find at [153] – [156] 153 I have had regard to the fact that the cracking of the external masonry of the residence seven years after practical completion is minimal which gives support to Mr Hammond's opinion that moisture conditions under the slab may be normal. I have also taken into account the CSRIO report that it is normal for the incidence of cracking to stabilize which I find seems to have occurred. These factors lead me to conclude that the prospects of ongoing cracking appear to be slight. Against of these considerations is the possibility of future weather events. I find that the effect of future weather events cannot be ruled out. In that regard I have placed weight on Mr Fox's evidence as he has considered rainfall patterns, while acknowledging that to be an informal process Mr Tozer states that it is possible that there may be more and larger cracks in the future. Mr Fox states that the damage might be significant. I regard both of those opinions to be speculative. However the evidence and opinions regarding future weather events do not provide a compelling scenario that it is inevitable that the residence will be subject to future cracking of a serious and significant nature. 154The evidence of Messrs Tozer and Fox as to the inevitability of larger cracks and significant future damage does not give me a sense of actual persuasion such that I am able to accept their evidence in order to make a finding on the balance of probabilities that there will occur in the future larger cracks and significant damage to the residence, although I cannot exclude that there will be some minor cracking at some point in the future. The evidence does give me a sense of actual persuasion that moisture conditions under the slab have stabilised and that the incidence of cracking to the residence has stabilized. 155 As a result while I find that there is a possibility of minor future cracking to the owners' residence I also find that moisture conditions under the slab have stabilised and that the incidence of cracking to the residence has stabilized. 156 I have awarded damages to the owners for breach of section 18B(a) of the Act. Since I have not accepted the owners' experts' evidence that larger cracks and significant damage to the residence will occur in the future, I find that it is not necessary for me to consider whether the owners should be awarded damages for the demolition and reconstruction of the residence. To award such damages in these circumstances would not I find be necessary to ensure conformity with the contract. Nor would it be a reasonable course to adopt. Appeal and subsequent actions by the Websters 1. On 4 April 2018, the Websters appealed the CCD 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. 2. It is unnecessary to refer to the Appeal Panel decision in detail, except to note that the Websters had also sought in the appeal to rely on new evidence. At [65] – [68] of the reasons for decision the Appeal Panel stated: 65 The Owners also sought to rely upon further "new" evidence. 66 In Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111, the Appeal Panel stated in relation to evidence not being "reasonably available" at the time of the original hearing that the intention of those words in cl. 12(1)(c) of Sch. 4 of the NCAT Act is to provide an additional limitation on a party's entitlement to seek leave to appeal. The words "reasonably available" are not qualified by other words such as "to the party". The test is objective. It does not involve subjective elements concerning the particular situation of a party. Something more than a party's inability to procure the evidence is required. 67 Dealing with the particular items of "new" evidence relied upon by the Owners: (1) Five (5) "new" photographs which appear to have been provided in support of a submission of the Owners that the footings in the House were inadequate. We are not satisfied that there is any reason why these photographs could not have been tendered during the hearing of the proceedings at first instance. (2) A "Col Jenkins defects list", which is a document of an unknown author. It contains bald assertions about the quality of the Engineer's work on other dwellings. Apart from issues as to its admissibility as evidence, we do not think it can be said that the document was not reasonably available at the time of the original hearing. (3) An email from a Mr Eric Lume. We find that this document could have been obtained for the original hearing. (4) An engineering report of a Mr Mallam. We find that this document could have been obtained for the original hearing. (5) An engineering report from a Mr Burridge. We also find that this document could have been obtained for the original hearing. 68 For the foregoing reasons, we find that leave should not be given to the Owners to appeal on any of their grounds for which leave is required under the NCAT Act, nor to adduce any further evidence. 1. On 25 May 2019, after the Appeal Panel proceedings were decided, Mr Webster and Mr 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. 2. After the excavation Mr Tozer wrote a letter dated 7 July 2019 (exhibit 1, pp186-202), to the Registrar of the NCAT asking for the decision to be reviewed on the basis that the excavations now reveal that there were no piers under the slab and that the footing are not as required by the plans. In the letter Mr Tozer relevantly stated the following: … in this case NCAT has made a very serious mistake and have effectively financially bankrupted an innocent couple, the Webster's, to the tune of almost a million dollars, using false information, such that normal courtesies and conventions need to be ignored. I provide below irrefutable proof that the defendant Mr Tom, expert witness Mr Hammond, and Clarence Valley council staff, have all committed perjury at the hearing for this case. Mr Tom, Mr Hammond and the council staff stated either via sworn statements or under oath that the piers under the Webster's house had been installed and the footings were at least 250mm thick, in accordance with the designing engineer's drawings. The attached photos of excavated footings provide indisputable evidence that this is simply not true. Member Goldstein's decision, based on this perjured testimony, is a gross injustice and is putting great strain on an unfairly victimised couple. I respectfully request NCAT ask Member Goldstein to review his decision in light of this information and hold the perjuring witnesses to account. … 1. Included in the letter were photographs showing Mr Tozer and Mr Webster excavating to find piers under the footings at the subject property. 2. The Websters sent a letter to the NSW Building Commissioner on 8 September 2019 (exhibit 2(2) pp 436 -439). In the letter the Websters complain about the outcome of the decisions in NCAT and seek "help, guidance and advice" on what the next steps should be. While there was nothing preventing the NSW Building Commissioner from attending a property for inspection when invited, it should be noted that at that stage, the NSW Building Commissioner did not have the specific power to enter and inspect freestanding residential houses. That power was not passed by parliament until November 2023 (Building Legislation Amendment Bill 2023 (NSW). 3. A site inspection was carried out on 12 June 2020 and a note of the site inspection records the following people in attendance: * David Chandler (Building Commissioner) * Mark Webster (owner) * Diedre Webster (Owner) * Tina Newbolt (Owner's Friend) * Garry Christy (Senior Building Inspector Fair Trading) 1. NSW Fair Trading sent the builder a notice to show cause dated 10 December 2021 (exhibit 1 starting at p 49). On 10 March 2022 the respondent provided the decisions together with reasons for the decision to the builder. The Administratively Reviewable Decision 1. Section 30 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) states that the Administrative Decisions Review Act 1997 (NSW) provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator. Pursuant to s 9(1) of the Administrative Decisions Review Act, 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 administrative review under the Administrative Decisions Review Act. 2. The respondent took disciplinary action 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. This was based on being satisfied that the Builder had breached implied statutory warranties (see s18B of the Home Building Act) 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 Home Building Act. 1. Section 56 of the of the Home Building Act provides that: The Secretary may take disciplinary action under section 62 against the holder of a contractor licence on any of the following grounds— … (b) that the holder is not a fit and proper person to hold the contractor licence, (c) that the holder is guilty of improper conduct, … 1. Pursuant to s 83B of the Home Building Act: (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. … (3) A person aggrieved— (a) by a decision made by the Secretary under Part 4 (Disciplinary proceedings) to impose a penalty or to cancel or suspend an authority, … may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of that decision. 1. "Authority" is defined in cl 1 of Schedule 1 of the Home Building Act to include: (a) a contractor licence (whether or not an endorsed contractor licence), 1. The Tribunal is satisfied that the decision is an administratively reviewable decision. 2. At times the parties to these proceedings approached the proceedings as if it were a home building defects claim, as opposed to administrative review of a decision. Section 63 of the Administrative Decisions Review Act requires that in determining the application for review, the Tribunal is to decide the "correct and preferable" decision and it "may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision". Is the builder guilty of Improper Conduct? 1. Despite the findings of the Tribunal in the CCD proceedings, the respondent submits that the builder did breach the implied statutory warranty. The respondent submits that the totality of the evidence before the Tribunal is that the builder failed to construct footings and piers in accordance as required by the relevant Jenkins' Footing & Slab Plan (Exhibit 1; pp 256-259). 2. The respondent submits that the builder failed to construct footings as to the required 250mmm depth and failed to construct footings at all in some places. At the hearing, the applicant objected to questions relating to the absence of footings under the brick wall column, on the basis that it had not been particularised as a basis for the disciplinary action. The inadequacy of the footings had always been a basis for the disciplinary action. As stated above pursuant to s 63 of the Administrative Decisions Review Act, the Tribunal is to have regard to the material before it. The applicant is a builder and was able to answer questions and address the issues, including that there may not have been footing under the columns. On that basis I am satisfied the Tribunal can consider whether the footings were adequate in depth and in construction. 3. The respondent alleges that the builder is guilty of improper conduct because he breached the implied statutory warranties under s18B of the Home Building Act, by failing to construct the property's footings in accordance with specifications. 4. Section 18B(a) of the Home Building Act relevantly provides: 18B Warranties as to residential building work (1) The following warranties by the holder of a contractor licence, or a person required to hold a contractor licence before entering into a contract, are implied in every contract to do residential building work— (a) a warranty that the work will be done with due care and skill and in accordance with the plans and specifications set out in the contract, 1. As statutory warranty is implied into every contract. 2. Section 51(1)(c) of the Home Building Act relevantly provides that: 51 Improper conduct: generally (1) A holder of a contractor licence who is authorised by the contractor licence to contract to do residential building work or specialist work, or a holder of a supervisor or tradesperson certificate, is guilty of improper conduct if the holder— … (c) breaches a statutory warranty, or … 1. At the hearing, the applicant objected to questions relating to the absence of footings under the brick wall on the basis that it had not been particularised as a basis for the disciplinary action. The inadequacy of the footings had always been a basis for the disciplinary action. As stated above pursuant to s 63 of the Administrative Decisions Review Act, the Tribunal is to have regard to the material before it. The applicant is a builder and was able to answer questions and address the issues, including that there may not have been footing under the columns. On that basis I am satisfied the Tribunal can consider whether the footings were adequate in depth and in construction. 2. For the reasons that follow, I am satisfied, in particular from the photographs that the builder failed to construct footings as to the required 250mmm depth at some points and did not construct the piering as required by the Jenkins' Footing & Slab Design. 3. I note that the builder was not invited to be on site either when the excavations occurred or at any other time after the CCD proceedings. It should be noted that builder did request access to the site to inspect for the purposes of these proceedings and that was refused by the Websters – see Tom v Commissioner of Fair Trading [2022] NSWCATOD 57. It is unfortunate that the builder was not invited to be at the site when excavation and inspections occurred. In assessing the weight of evidence, I have taken into consideration that the builder was prevented from undertaking further inspections at the site. John Tozer 1. Much has been made by the parties of the evidence of Mr John Tozer, who is an engineer and was the expert for the Webster's in the CCD proceedings. He was cross examined in relation to his evidence. 2. As a general observation, Mr Tozer's behaviour and actions after the CCD proceedings and in these proceedings has been unhelpful. The Tribunal procedural direction in relation to expert evidence as it was at the time (exhibit 4, p 3 - NCAT Procedural Direction 3, effective date 28 February 2018), requires that as a general duty to the Tribunal to: 14. An expert witness has an overriding duty to assist the Tribunal impartially on matters relevant to the expert witness's area of expertise. 15. An expert witness's paramount duty is to the Tribunal and not to any party to the proceedings including the person retaining the expert witness. 16. An expert witness is not an advocate for a party. 17. An expert witness must abide by any direction given by the Tribunal. 1. The builder submits that it is inappropriate and improper for an expert witness to attempt to cause a Tribunal to go behind its decision, particularly where: 1. An internal appeal had already been dismissed. 2. It was not apparent that the moving party to that appeal, the Websters as homeowners, supported Mr Tozer's position or had knowledge of his intention to write to the Tribunal in the manner he did. 3. The Websters were not taking any appeal from the appeal panel decision. 1. The builder submits that for those reasons the objectivity and independence Mr Tozer is undermined. 2. It is clear from the letter and the exchanges in cross examination that Mr Tozer can not be regarded as an entirely objective witness. Mr Tozer has not demonstrated he is impartial. Mr Tozer approached the proceedings as if he was an advocate for the Websters. In cross examination Mr Tozer did not retract from his position. Mr Tozer admitted under cross examination that he had felt wronged by the decision of the Tribunal and felt that the Tribunal had been misled because of the evidence of Mr Tom and his experts including Mr Hammond. He stated that he had felt vindicated when it was discovered that there was no footing under the slab. He admitted that he had worked with Ms Webster to "rock the boat" because he felt there had been a great injustice done by the decision of the Tribunal and he felt very strongly that the injustice should be corrected. Under cross examination, Mr Tozer did not retract from his position. In cross examination Mr Tozer agreed that "the Tribunal 'is an organisation with an appalling lack of expertise and integrity' and that the Tribunal was able to be "conned and corrupted". That does not demonstrate that Mr Tozer understands that as an expert he has a paramount duty to the Tribunal. 3. When an expert takes such a position, it undermines the entirety of the evidence that the expert has given. On that basis I have proceeded to only accept Mr Tozer's evidence when it is corroborated or supported by other evidence. The footings and the piers 1. I have however, given weight to the report of Mr Garry Christy dated 23 November 2021 (exhibit 1, pp204-216). Mr Garry Christy is a building inspector with NSW Fair Trading (the Christy Report). There are a series of photographs showing excavations around the slabs and piers which are dated 12 June 2020. Photo 21 shows the then building Commissioner David Chandler inspecting the footing and allegedly "confirming no piers installed as per structural drawings 09/136 Sheets 1 to 3. 2. The Christy Report contains the following photographs and accompanying captions: 1. The caption to photo 4 states, "Photo shows the brick column constructure directly onto the ground with no footing installed, note the two bricks placed under the column for support". 2. The caption to photo 14 states "Shows the side of the house with the concrete slab exposed and no concrete piers installed". 3. The caption to photo 15 states "Photo shows the front and side corner of the house with no concrete piers install (sic) as per the Structural drawing 09/136 Sheet I". 4. The caption to photo 16 states "Photo shows section of brick wall sitting directly on soil". 5. The caption to photo 17 states "Photo shows the brick column to the front of the house which has been constructed directly onto the soil, note the two bricks which are acting as temporary footing". 6. The caption to photo 18 states "Photo shows the exposed slab edge to the side of the house". 1. Mr Christy and others were subject to extensive cross examination regarding the inspection, the report and the photographs. Mr Christy confirmed that he was present at the inspection. Excavation had already been undertaken around the house and he did not participate in any further way in exposing the concrete. Mr Christy also confirmed at the hearing that he did not take the measurements, rather it was the Building Commissioner who did the measuring, and Mr Christy took the photos. The builder submits that as a result, Mr Christy's evidence on the measurements should not be given weight. I reject those submissions, while he may not have taken the measurements, the evidence is he took the photos while the measurements were being taken and on that basis the evidence can be given weight. 2. Mr Christy maintained at the hearing that there was "no evidence of any piers". 3. I am satisfied from both the photographs in Mr Christy's report and his evidence that there were places in which the footings were not 250mm and where there were no piers as required by the plans. 4. Mr Li, an engineer employed by NSW Fair Trading was asked to address a series of questions. He provided an affidavit sworn 9 October 2023 (exhibit 4) attaching his answers to those questions. Mr Li had not been on site or at the inspection. 5. Mr Li states that in measuring footings it is acceptable to use a tape measure or ruler but strip footings will undulate so care needs to be taken to find the minimum dimensions and measure that portion. Mr Li also states that the dimensions shown for the concrete elements of a plan are minimum dimensions which means that at "every location, the actual element dimension should match or exceed the design requirements. 6. Mr Li confirms that the strip footing is the element of the Jenkins' Footing & Slab Design shown being measured in the photographs in Mr Christy's report. 7. In relation to the absence of footing under either of the sections of brick wall described by Mr Tozer as the "engaged pier", Mr Li states that those brick piers are structural and intended by the Jenkins' Footing & Slab Design to be structural and supported by footing. 8. In relation to the proper method of excavation so as to expose the footing in order to take an accurate measurement, Mr Li explains that it is necessary to excavate sufficiently so that the vertical face of the footing is exposed horizontally to ascertain that the vertical face of the footing has in fact been exposed and it is possible to find the "maximum and minimum dimensions in that specific area". Mr Li states that both Mr Tozer's and Mr Christy's photographs show that each continued his excavation horizontally under the footing. 9. In cross examination Mr Li could not confirm whether footing conformed to either of the scenarios in the Jenkins' Footing & Slab Design. Mr Li also confirmed he was not able to give evidence about the depth of the footings without seeing the underneath of the expose face of the footing. 10. In my view, Mr Li's evidence supports that the approach taken in the Christy Report to measuring the footings was appropriate. 11. Mr Kerry Harre was a council building inspector who gave evidence for the builder and was cross-examined. He gave evidence that he had inspected the excavation of the footings on 31 July 2009, before the pour, and he found them compliant and dug to the proper depth. 12. Council inspection records (exhibit 3, p87) from the day of the inspection show the entry next to the footing inspection as stating "ok.". Mr Harre agreed that he would have had the footings and slab plan documents with him on the day of the inspection. 13. Over 10 years has passed since the inspection of Mr Harre was completed. I accept that he inspected the footings before the pour and that it was recorded that they were ok. However, that evidence does not establish whether there were subsequent defects in the slab. 14. The builder engaged an expert report from Stephane Rebibou, of Booth Engineers & Associates. The first report is dated 12 September 2023 (exhibit 3, pp 146 – 189) and a second supplementary report is dated 22 September 2023 (exhibit 3, pp 190 – 361). Mr Rebibou has over 25 years' experience as a Structural Engineer and his firm specialises in the investigations and rectifications of distressed structures. It is useful to recount relevant parts of the report by Mr Rebibou. In the executive summary to his first report, Mr Rebibou relevantly states: 5. Mr Tom accepts that he did not build the piers as he correctly claims that piers were indeed not necessary as identified within the Jenkins design in the case where particular natural founding conditions were encountered. Indeed, the Jenkins design and AS2870 Clause 2.3.5 identify that footings shall be constructed on soils with a minimum allowable bearing capacity of 100 kPa. Moreover, the Standard also confirms that "inadequate bearing pressure is not common" and one could expect to see such conditions where loose soils (aka 'fill' / 'uncontrolled' fill) and other poor loose soils may be encountered. … 6. I note that I have not been given the opportunity to inspect the property and have thus considered reports from other Engineers and Building Professionals to form my opinions. A number of photographs identifying excavations have been provided to me which all appear to indicate that natural stiff conditions do appear to be present on the site - in particular I did not see evidence of loose soils or fill nor have I been provided with reports which identify such loose / fill conditions and in the absence of such, it is my opinion that in accordance with the Jenkins design piers could indeed be emitted. 7. Moreover, serious accusations relating to on site measurements and possible inadequate footing depths were presented by means of reports from Engineers Hammond and Tozer and from the Commission via the Christie report. Although the reports clearly demonstrate that measurements were indeed taken by all parties there remains elements of doubt in relation to the accuracy of the measurements and more concerning, there remains serious doubt as to the validity of such a process in the establishment of the suitability or lack thereof of a particular footing system. 8. Codes and Standards and in particular the NCC / BCA and AS2870 are well established documents which have been used for decades in the construction of residential buildings and structures. Of great significance here is the fact that these critical documents all categorically confirm that the main criteria used to determine the suitability of a given structure and footing system relate to its expected 'Performance'. … 12 In this case, it appears that the dispute has unfortunately been reduced to a dispute relating to footing depth measurements which for the most part remain ambiguous some 14 years following construction. No specific performance criteria appears to have been established which would allow an objective consideration of the true Performance of the footing system and dwelling to AS2870. 13 Of great importance here is the fact that both the home owner and builder have in my opinion not benefitted from the insight and knowledge identified within AS2870 which should forms part of all investigations pertaining to footing system movement and residential damage. 14. I confirm that my office carries out in excess of 500 building investigations each and every year and the methodology outlined within AS2870 is critical in allowing my office and other building professionals to gather objective information which is typically used to investigate, rectify and at times dispute aspects of movement and damage. 15. Under no circumstances could my office provide objective opinions relating to the performance of footing systems if all investigations required the excavation of entire portions of buildings and rested upon determinations of footing depths within 50mm of original design plans. What are we to do where no plans exist? What is the point of having very deep footings if the building is moving and cracking extensively? Conversely, does the depth of a footing within 50mm of original plans really matter if there is limited movement and damage many years following construction? 16. On the basis of the information provided to me, I confirm that I am unable to confirm or deny if or how this particular footing system is performing and as such, I am unable to even consider if or what type of remedial measures may be appropriate. In the absence of objective Performance criteria described within AS2870 I would strongly discourage any categorical and critical decisions being made pertaining to the suitability of this footing system. Whilst such measurements as the eventual depth of a footing could be used to possibly determine 'variations' from a contractual perspective, under no circumstances should such be used to establish the suitability of a given footing system. 17. It is my opinion that fundamental engineering data such as level survey data, geotechnical data and damage classification data must be obtained in order to evaluate the actual suitability or lack thereof of this particular footing system. In the absence of such data, I confirm that the possible lack of 50mm of footing depths as appears to be at the centre of this dispute if of negligeable importance to me as I attempt to objectively establish the suitability of this particular residential footing system constructed some 14 years ago. 1. In relation a question about the brickwork column sitting on bricks referred to by Mr Tozer, Mr Rebibou states: 104 Given that the brick pier was embedded into the ground, a footing beneath it would have been expected, although it does appear most likely to be an architectural feature - that is, I do not believe that the pier exists as a means to resist loads such as bracing forces or other structural function. 105 Regardless of whether or not it was an architectural feature or not, it forms part of the external brickwork and should have had a footing beneath it. I note however that it is not uncommon for concreters to sometimes 'miss' such feature piers when constructing the footings and at times it will become necessary to retrofit a pier or footing to such - this is unfortunate, but such an omission does not reflect the overall suitability of a footing system. 106 The photo also does appear to indicate that the lack of a complete footing beneath the pier has had no obvious detrimental effect on the performance of the pier or the footing system. 1. In cross examination Mr Rebibou agreed that Jenkins' Footing & Slab Design required footing to be constructed around the entire perimeter of the home including the two brick wall protrusions. Mr Rebibou also agreed that the Jenkins' Footing & Slab Design required footings to be constructed 250mm deep, 450mm wide in a "perfect rectangular prism or box" shape, not a trapezium type shape or other irregular rectangular shape. 2. In respect of Photographs 16 and 17 of the Christy Report, Mr Rebibou accepted that if what is depicted is bricks directly on soil, "you'd want to concrete underneath". Further, assuming that what is depicted is bricks directly on soil without concrete footing, Mr Rebibou agreed that the approved design required footings to be constructed under the entirety of the brick wall protrusions. 3. Mr Rebibou did not inspect the property and did not have any prior involvement with the dwelling, or any works undertaken at the property. On that basis a lot of his evidence is speculative as to what one might expect to find. 4. Mr Matthew Anderson, a sub-contractor gave evidence for the builder in relation to the building of the Webster residence in 2009. He provided an affidavit dated 30 August 2023 in these proceedings (exhibit 3, 99-103). In cross-examination Mr Anderson said that no form work was used in the construction of the footings but agreed that he also attended a meeting that was held on site with the builder and Mr Hammond who has been the builder's expert in the CCD proceedings. He did not take part in the measuring of the footings and check for the presence of piers. His evidence is of little assistance as to the whether there was a breach of statutory warranty. 5. Bruce Hammond was the expert for the builder in the CCD proceedings and had inspected the property four times in relation to those proceedings. He provided a further report in these proceedings dated 14 August 2024 (Exhibit 3, pp 104 -145). He was cross-examined at the hearing. 6. At the outset of his report Mr Hammond summarises: 1. The footing system adopted by the builder is specified on the approved engineering plans 09/136 sheet 2 as Detail 1 being a 450mm(W) x 250mm(d) strip footing. 2. The specification on Sheet 1 of the approved plans directs the builder to undertake: "Compulsory check for soft spots with probe at all corners & max 2.5 cts under perimeter walls & slab - Build piers to firm developed ground if needed". 3. The builder excavated the strip footings into natural ground and confirmed the base of the footings were on firm developed ground. As per the specification piers below the strip footings were therefore not needed. 4. The Tozer and Fair Trading reports continue to falsely claim that piers beneath the perimeter walls were required as a matter of course. 5. Footing depth measurements taken at the edge of a footing do not necessarily reflect the true depth of the footing. Footing edges can be shallower due to dirt accumulated along the corners of the footing trench and also the top of the footing rolling away at the edges during concrete placement. 6. No investigations by either engineer Tozer or Fair Trading excavated across the full width of the base of the footing. Therefore none of their measurements could be said to be an accurate depiction of the footing depth. 7. The methodology used by both Tozer and Fair Trading to measure the footing depth is open to errors due to there being no determination of the footing base across its full width, no use of straight edges on both top and bottom of the footings and parallax errors in photos caused by the camera eye not being perpendicular and level with the footing. 8. The photographs are not a reliable depiction of footing depths due to parallax and a lack of clarity. 9. The use of callipers to measure the footing thickness would be the best technique to accurately assess the footing thickness. 10. No opportunity has been provided to the builder to inspect and check the accusations being made. 1. Mr Hammond stated in cross examination that in his inspections he had found the footing to be 250-300mm in depth and piers under each of the five locations where he had excavated. In cross-examination Mr Hammond was asked about those inspections and the following exchange occurred with Counsel for the respondent and Mr Hammond: DOUGLAS-BAKER: Thank you, Mr Hammond. Going back to p 157 of exhibit 2, but remaining in your report of 12 September, you conclude under p 3, para 7, second paragraph down, "I found minimum -" Do you see where I'm reading from? WITNESS HAMMOND: Yes. DOUGLAS-BAKER: "I found minimum footing depth of 250 millimetres and maximum depth of 300 and at each location, a pier beneath the footing." WITNESS HAMMOND: Yes. DOUGLAS-BAKER: Is the tribunal to understand that at each of the five locations you excavated, that's what you found? WITNESS HAMMOND: That was my finding at the time, yes. DOUGLAS-BAKER: You say, "at the time." Is there now some qualification? WITNESS HAMMOND: The later evidence of the Piering has led me to question the pier [assertion? 00:17:45]. DOUGLAS-BAKER: And when you say, "the later evidence of the pier," what evidence are you referring to? WITNESS HAMMOND: The excavation work that was recently done. DOUGLAS-BAKER: Are you referring to that which was undertaken by Mr Webster? WITNESS HAMMOND: Yes. DOUGLAS-BAKER: And the evidence of that, are you referring to two reports? One of Mr Tozer and one of Mr Christie? Is that what you're referring to? WITNESS HAMMOND: Yes. 1. A short time later in cross examination the following exchange occurred: DOUGLAS-BAKER: Third paragraph down, "The builder has constructed the footings with piers as required by the engineering specifications." And finally, "The conclusion of no piers in Mr Tozer's reports are obviously incorrect." WITNESS HAMMOND: Mm-hm. DOUGLAS-BAKER: Now I appreciate you made that qualification a moment ago that you've now been privy to later evidence and you question your earlier conclusions, but is it fair to say that in this report, you were emphatic that the piers were present? WITNESS HAMMOND: Yes. DOUGLAS-BAKER: Can you assist us? Is there anywhere in any of your reports in those proceedings where you suggest that the piers were not needed? WITNESS HAMMOND: No. 1. A large part of the decision in the CCD Proceedings was based on the acceptance of the views of Mr Hammond. I found Mr Hammond to be a credible witness who considered contrary material when put before him. At the time of the CCD proceedings, the full perimeter around the slab had not been excavated and the opinions of Mr Hammond were based on only various places that were dug out around the perimeter. The evidence of Mr Hammond demonstrates that he was no longer sure from the photographs that the footings and piers were constructed in accordance with the plans. 2. Mr Colin Jenkins provided the Footing and Slab Design and gave evidence for the builder. He provided an affidavit sworn 30 August 2023 (Exhibit 3, pp 99 - 103). He was cross examined at the hearing. He has relevantly stated in his affidavit that he essentially agrees with the response of Mr Hammond. He stated he has been retired for about 6 years and is acting "pro-bono". He states that around 2019 he received a call from a man who claimed to work for the Building Commissioner making enquiries about the Webster Home. Mr Jenkins states in his affidavit that the builder dug down to the intended bottom depth of the piers and poured the footings at that level. He states that this increased Mr Tom's costs, by adding approximately four courses of brickwork. 3. In relation to the decision of the Tribunal in the initial CCD proceedings, Mr Jenkin's states: 8. Mr Tozer has claimed in response to point 77 of Goldstein's report, that the footing depths are only 200mm instead of the specified 250mm. I consider Mr Tozer should consider himself still under oath from giving his evidence at the hearing where Mr Goldstein presided. I consider myself still under oath and to leave no doubt about the seriousness of what I am now advising you, I am giving this current information by way of affidavit and thus clearly under oath again. 9. Mr Tozer's photographs, which he claims show footings to be only 200mm deep, have been taken in a way that is misleading. The edges of strip footings, being in trenches, are not a reliable place to measure strip footings. Minor irregularities in the sides of trenches make the edges of strip footings, taken only at the edges, most unreliable. To be more accurate, a substantial localised excavation under the full width of the footing and a calliper type means of measuring (as was used by Mr Hammond) is necessary for accuracy. A further check by the amount of concrete delivered against the volume of concrete required is a sensible practical precaution to ensure no error. Mr Tozer should know about the need for calliper and the volume check. Mr Tozer surely also knows that his method is prone to parallax error. I find it hard to believe he doesn't. If he is aware of that and persisted with his doubtful means of measuring, then I believe the poor methodology would affect the results. 10. I recall Mr Tom requesting I check his preparations for the concrete pour. I went to the site, which is only a few hundred metres from my residence. At the site I observed that the reinforcement steel was correctly in place and several height pegs were installed to enable the concreter to ensure that he was finishing the concrete at the correct level and 250mm deep. I also probed checked all round and found the underside of the footings preparations to be down to firm ground as required by my design instructions. During the phone call with Mr Chandler's understudy, I informed him of this (point 6 above). 11. AS2870 is essentially a performance code. The house is now 14 years old and is still performing well. 12. Both Mr Chandler and Mr Tozer took part in undermining the footings designed by me. This is an extremely bad practice. Their photos do not show the extent to which they undermined and because the house is till performing, it does not seem to have mattered. However, should the house suffer further movement (than the already less than significant), it would almost certainly partly be due to the undermining by Mr Tozer and Mr Chandler. 1. Mr Jenkin's continues in his affidavit, to highlight the faults he believes are contained in the Christy report. 2. In my view, Mr Jenkin's is not an objective witness. He feels undermined by others and I give his evidence regarding whether there has been a breach of statutory warranty little weight. 3. Mr Tom, the builder provided 4 affidavits in these proceedings (exhibit 3, p 1- 66). He was cross examined at the hearing. At all times Mr Tom has stated that he constructed the footing and piers in accordance with the Jenkins' Footing and Slab Design. He agreed in cross examination that detail 1 of that plan was the relevant detail he intended to construct. 4. The evidence given by Mr Tom in cross examination was in my view unresponsive and changed, undermining his credibility. This was particularly the case in relation to the piers. 5. In his affidavit of 5 September 2023 (Exhibit 3, p 50, paragraph 8) Mr Tom had stated that piers are not required as per the engineering plans where the ground is firm developed at 2.5m centre. 6. In cross examination, Mr Tom was asked about his inspection with Mr Hammond on 7 September 2016. At first, he stated that at the time when he found footings deeper than 250mm he had "assumed" it was a pier. When he was further questioned about the piers and his assumptions he stated: Where we were deeper than 250… and zero depth – and/or zero depth. 1. The exchange continued in cross examination as follows: DOUGLAS-BAKER: I suggest to you, you did not say in those earlier proceedings anywhere in the record that you constructed piers to zero depth. What do you – WITNESS TOM: No, I don't recall. DOUGLAS-BAKER: You didn't say anywhere in the earlier proceedings that piers were only constructed to 50-millimetre depth? WITNESS TOM: I don't recall. DOUGLAS-BAKER: Do you recall how deep the piers were required to be if they were constructed? WITNESS TOM: [Unintelligible 01:26:43]. DOUGLAS-BAKER: That's what they were required to be constructed to. There was no specification of how deep they were required to go? WITNESS TOM: Zero depth, [unintelligible 01:26:54]. DOUGLAS-BAKER: That qualification is if there's firm developed ground and no piers are needed, correct? WITNESS TOM: Firm developed ground? Piers may not be required. It depends on the grading at the time and if there's soft spots. DOUGLAS-BAKER: And if you needed to build a pier, then it would be of whatever depth was required to get down to firm developed ground? WITNESS TOM: Correct. DOUGLAS-BAKER: When you say piers at zero depth, that's another way of saying no piers, isn't it? WITNESS TOM: No, not necessarily. DOUGLAS-BAKER: Why not necessarily? WITNESS TOM: Because firm developed ground - piers for firm developed ground could be 50 millimetres, could be zero depth – DOUGLAS-BAKER: But zero depth – WITNESS TOM: I don't remember - I don't recall in 2009 what - when we reached firm developed ground. 1. Mr Tom was also cross examined in relation to answer he gave in the interview with Fair Trading in April 2021. DOUGLAS-BAKER: Between the Webster proceedings in 2016-2017 and your interview with Inspector Lau in 2021, your evidence changed in this way, did it not? You asserted there were piers in 2016-2017 and with Inspector Lau, you weren't sure. WITNESS TOM: I was never sure [unintelligible 01:37:13] dug down 250 for depth and there was depth of 350 so it was either - as I said, it was a thickened edge or a pier. DOUGLAS-BAKER: I suggest to you that your evidence to Inspector Lau changed from that which you put before the tribunal in the earlier proceedings because Inspector Lau showed you the work that Mr Tozer had done. Mr Tozer had shown, according to Inspector Lau, that there were no piers. That's why your evidence changed, is it not? WITNESS TOM: No. DOUGLAS-BAKER: By the time you attended the interview with Inspector Lau on 14 April 2021, you couldn't continue to assert that you'd constructed the piers, could you? WITNESS TOM: I was uncertain. … 1. Mr Tom continued that he was uncertain as to whether he did construct the piers. 2. On being presented with evidence which might present a contrary view to his, Mr Tom was not open and frank, but repeated the unresponsive answer that the piers were constructed to "zero depth". In the Tribunal's view that position undermines Mr Tom's credibility in giving evidence. 3. Mr Tom also made submissions that the Tribunal can be certain from the volume of concrete used that the slab was constructed in accordance with the plans. In the response "Notice to Show Cause" which was issued on Mr Tom as part of the investigative process by NSW Fair Trading, Mr Tom provided calculations and documents as to the volume required to fill the trenches and the records for concrete that was purchased and pumped on site on the day the concrete was poured. While the records can give an indication of how much concrete was used at the site on the day, that does not mean that at certain parts the concrete was not poured to the required thickness in some parts. Conclusion on improper conduct 1. Having considered the evidence in its totality and for the reasons given above, I find that the footings and piers were not constructed in accordance with the Jenkins' Footing and Slab Design plan. I prefer the evidence of Mr Christy and the Christy report and photographs contained in it. The inspections were done after the full perimeter around the slab was excavated and I do not find that the any Piering or footings were tampered with in that process. 2. I am satisfied that the residential building work done by Mr Tom on the Websters home was not done with due care and skill and in accordance with the plans and specifications set out in the contract. Is the Builder a Fit and Proper Person to hold a licence? 1. The respondent submits that the builder is not a fit and proper person to hold a contractor licence. 2. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380 [36], Toohey and Gaudron JJ explained the fit and proper person test in the context of a commercial broadcasting licence: The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. 1. In Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 at 156-7 [9] fitness and propriety was considered to have three components "honesty, knowledge and ability". 2. As I have found above, when being presented with evidence which might present a contrary view to his, Mr Tom was unresponsive and not open and frank. However, I do not accept that amounts to him not being a fit and proper person to hold a contractor licence. The changeability of Mr Tom's evidence necessarily raises questions about his integrity, trustworthiness or honesty. 3. I accept that the Mr Tom did not build the slab in accordance with the plans and that amounts to a breach of statutory warranty. However, the evidence, from Mr Rebibou demonstrates that the slab is performing. The residential premises were built over 13 years ago and there is no evidence that the slab has failed or that remedial works have had to be undertaken because of the alternative piering and footing system that was used. The breaches which were found against the builder in the CCD proceedings were minor. There is no suggestion that the builder has not complied with the Tribunal orders in that regard. 4. In his affidavit sworn 11 March 2022 (exhibit 3, pg 1), Mr Tom states that he has held a building licence since 28 April 1998. Except in relation to the issues with the building of the Webster Property, Mr Tom has had no public warnings or insurance claims paid and no other disciplinary action taken against him regarding his individual or company license. As of the date of that affidavit he had three other properties he was constructing and was contracted to construct five other properties in the future. On 21 April 2022, the Tribunal imposed a stay on the decision of the respondent and since that time there is no evidence of further complaints of defective work, investigations or disciplinary action in that time. 5. The minor defective work and the breach of statutory warranty which has not resulted in any performance issue do not demonstrate that Mr Tom is not a fit and proper person to hold a licence. Appropriate disciplinary action 1. Section 62 of the Home Building Act relevantly provides that the following disciplinary action may be taken: 62 Disciplinary action that may be taken by Secretary (1) If, after compliance with this Division, the Secretary is satisfied that any ground on which disciplinary action may be taken against the holder of an authority has been established in relation to the holder, the Secretary may do any one or more of the following— (a) determine to take no further action against the holder, (b) caution or reprimand the holder, (c) make a determination requiring the holder to pay to the Secretary, as a penalty, an amount not exceeding $11,000 (in the case of an individual) or $50,000 (in the case of a corporation) within a specified time, (d) vary the authority held by the holder, by imposing a condition on the authority, including a condition requiring the holder to undertake a course of training relating to a particular type of work or business practice within a specified time, (e) suspend the authority for a period not exceeding its unexpired term, (f) cancel the authority, (g) disqualify the holder, either temporarily or permanently, from being any one or more of the following—(i) the holder of any authority, or any specified kind of authority,(ii) a member of a partnership, or an officer of a corporation that is a member of a partnership, that is the holder of an authority,(iii) an officer of a corporation that is the holder of an authority.… 1. The respondent determined to take the following disciplinary action against Mr Tom: 1. A reprimand was issues under section 62(1)(b). 2. Mr Tom's building licence was cancelled under section 62(1)(f). 3. Mr Tom was disqualified from holding an authority under section 62(1)(g) for a period of three (3) years. 1. Given my findings that Mr Tom was guilty of improper conduct, but that he was a fit and proper person to hold a contractor licence, I find that the orders made by the respondent are not appropriate. 2. On that basis the Tribunal is not satisfied to cancel Mr Tom's licences. 3. Section 63(3)(c) of the Administrative Decisions Review Act provides that in determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide to set aside the administratively reviewable decision and substitute a different decision. 4. I have decided to set aside the respondent's decision of 10 March 2022 and instead substitute a decision for Mr Tom to be reprimanded. 5. A reprimand reflects that Mr Tom is sanctioned for his conduct in relation to his improper conduct. The reprimand also acts as a deterrent to other builders not to engage in such like conduct and upholds and reinforces the standards of building to which builders are expected to adhere. Costs 1. Section 60(1) of the Civil and Administrative Tribunal Act 2013 (NSW) requires that each party bears their own costs. However, pursuant to s 60(2) of the NCAT Act, a costs order can be made if "special circumstances" are established. The applicants must establish special circumstances to warrant a costs order being made in their favour. 2. Given the findings and orders the Tribunal has made, my preliminary view is that each party should bear their own costs. If the parties agree to that course of action, then they are to advise the Tribunal immediately. Otherwise, parties are to notify the Tribunal by 27 September 2024 if they seek to make an application for costs and directions will be made accordingly. Orders 1. The Tribunal makes the following orders: 1. The decision of the respondent made on 10 March 2022 is set aside. 2. In substitute of the decision Mr Tom is reprimanded. 3. If either party seeks costs of the proceedings, they are to notify the Tribunal by 27 September 2024. ********** 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: 25 September 2024