Lando v Department of Services Technology & Administration [2010] NSWADT 181

CITATION: Lando v Department of Services Technology & Administration [2010] NSWADT 181

DIVISION: General Division

APPLICANT Gordon Lando PARTIES: RESPONDENT Department of Services Technology & Administration

FILE NUMBER: 093299

HEARING DATES: 2 June 2010

EXTEMPORE DECISION DATE: 2 June 2010 BEFORE: Montgomery S - Judicial Member

CATCHWORDS: Home Building Act - home builder - issue of contractor licence

Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Bankruptcy Act 1966 (Cth) Home Building Act 1989 Home Building Regulation

CASES CITED: Doumit -v- Commissioner for Fair Trading, Office of Fair Trading [2008] NSWADT 138

APPLICANT In person REPRESENTATION: RESPONDENT J Walsh, Legal Officer

ORDERS: The decision under review is affirmed.

REASONS FOR DECISION 1 The Applicant held licences under the Home Building Act 1989 ("the HBA") between 1982 and 2006. His most recent licences expired in March 2006 and were not renewed. 2 In January 2009 the Applicant lodged an application with the Office of Fair Trading (the "OFT") for an Individual Contractor licence in the category of 'Building'. The OFT has now been subsumed into the Department of Services Technology & Administration. A reference in the HBA to the Director-General is to be read as a reference to the Commissioner for Fair Trading ("the Commissioner"). 3 In support of the application he supplied an explanation of the reasons for the licences not being renewed in 2006. He subsequently supplied the following information: i) A certified copy of a previous licence for the category of carpentry and joinery, dated 7 May 1982; ii) A certified copy of a letter advising that the Applicant was declared bankrupt on 6 February 2006; iii) A certified copy of a Craftsman's Certificate of Proficiency and a Craftsman's Certificate for the applicant in the trade of carpentry and joinery dated 9 March 1979 and 12 February 1979 respectively. 4 In reply to section 7(vi) of the Application Form the applicant replied 'no' to the question "Have you been subject to any order of a Tribunal/Court that has not been complied with?" 5 In reply to section 7(iv) of the application form the applicant declared 'yes' to the question as to whether he had been "declared bankrupt, been discharged from bankruptcy, entered into arrangements with creditors or assigned property to pay debts within the last three years?" 6 In March 2009, the OFT advised the applicant that his application for a contractor licence had been refused. The Commissioner's delegate had determined that: i) the applicant's previous building licence had expired more than two years before the application for the licence; ii) the qualifications provided with the application were not sufficient to meet the qualifications requirement for the issue of a building licence; iii) The applicant was the subject of a Consumer Trader and Tenancy Tribunal ("CTTT") order that had not been satisfied within the period required by the Tribunal; iv) the applicant was a current bankrupt and that he had not taken reasonable steps to avoid bankruptcy. 7 In April 2009 the applicant requested an internal review to be undertaken of the refusal decision. The internal reviewer concluded: The internal review has considered the original reasons for the refusal of the application for Gordon Leo Lando as well as additional matters. It has been determined that the Commissioner's delegate was correct in refusing the issue of the authority in accordance with clauses 26(1)(b)(1) and 28(l)(a) of the Home Building Regulations 2004 as Gordon Leo Lando does not hold a qualification which has been determined by the Commissioner as necessary to enable him to do, or to supervise building work. It has been determined that the Commissioner's delegate was correct in refusing the issue of the authority in accordance with clause 25(7)(a)(vi) of the Home Building Regulations 2004 as Gordon Leo Lando is the subject of a Consumer Trader and Tenancy Tribunal order which has not been satisfied within the period required by the Tribunal. In addition it has been concluded that Gordon Leo Lando made a false declaration on the application form in relation to the Consumer Trader and Tenancy Tribunal order number HB 06119770 ["the CTTT order"]. It is inconceivable to believe that he would not have been aware of the order and it is suggested that he attempted to conceal the Tribunal order knowing that these facts would be detrimental to him obtaining the licence. It has been concluded that Gordon Lee Lando did not fulfil the responsibilities of a contractor holder in regard to abiding by the decision of the Tribunal, upholding the rights of the consumer and has therefore been determined to be not a fit and proper person to hold of a contractor licence. It has therefore been determined that Gordon Leo Lando made a false statement in relation to an application for an authority pursuant to 307A of the Crimes Act 1900 and has not fulfilled his responsibilities as a holder of a contractor licence and is therefore considered not to be a fit and proper person to hold a contractor licence in accordance with sections 20(1)(a and 20(1A) of the Home Building Act 1989. 8 The Applicant applied to the Tribunal for external review of the determination to revoke his licence. The matter came before me for hearing on 2 June 2010. Following the hearing I affirmed the Commissioner's decision and gave brief reasons for my decision. The Commissioner has sought written reasons for the decision and more detailed reasons are now provided. Applicable legislation 9 The HBA is concerned with the regulation of the NSW home building and specialist work (i e. plumbing, gasfitting, electrical, air conditioning and refrigeration work) industry. The HBA also sets out the Commissioner's powers. 10 Residential building work is defined in Section 3 of the HBA as: residential building work means any work involved in, or involved in co-ordinating or supervising any work involved in: (a) the construction of a dwelling, or (b) the making of alterations or additions to a dwelling, or (c) the repairing, renovation, decoration or protective treatment of a dwelling. It includes work declared by the regulations to be roof plumbing work or specialist work done in connection with a dwelling and work concerned in installing a prescribed fixture or apparatus in a dwelling (or in adding to, altering or repairing any such installation). It does not include work that is declared by the regulations to be excluded from this definition. 11 Section 19(1) of the HBA provides that the Commissioner may grant contractor licences for the purposes of this Act. 12 Section 20 of the HBA provides: 20 Issue of contractor licences (1) The Director-General must reject an application for a contractor licence if: (a) the Director-General is not satisfied that the applicant is a fit and proper person to hold a contractor licence, or (b) the applicant is a mentally incapacitated person, or (c) the applicant is disqualified by this Act or the regulations from holding a contractor licence. Note. Under section 6 of the applied Act (within the meaning of section 19) an application for the grant of a contractor licence may be made by any individual aged 18 years or more, by any partnership or other association whose members are all individuals aged 18 years or more or by any corporation. (1A) Without limiting subsection (1) (a), in determining whether an applicant is a fit and proper person to hold a licence the Director-General is to consider whether the applicant is of good repute, having regard to character, honesty and integrity. (2) The regulations may fix or provide for the Director-General to determine additional standards or other requirements that must be met before any contractor licence is issued or before a contractor licence of a particular kind is issued. (3) The Director-General must reject an application for a contractor licence if: (a) the Director-General is not satisfied that any such requirement would be met were the contractor licence to be issued, or (b) the Director-General is not satisfied with the applicant's proposed arrangements for supervision of the work which the contractor licence will authorise the applicant to contract to do, or (c) the Director-General is not satisfied that the applicant has complied or is able to comply with any requirements of Part 6 or any requirements of the regulations relating to insurance applicable to the doing of work of a kind proposed to be authorised by the contractor licence. (4) (Repealed) (5) A decision of the Director-General relating to determining standards or other requirements under subsection (2) cannot be reviewed by the Administrative Decisions Tribunal in an application for review made under this or any other Act. (6) Without limiting this section, the Director-General may reject an application for a contractor licence if the Director-General is of the opinion that it is in the public interest to do so on any of the following grounds: (a) an employee or proposed employee of the applicant is disqualified from holding a contractor licence, has had an application for an authority rejected on a ground relating to his or her character, honesty or integrity or has had an authority cancelled or suspended on any disciplinary ground, (b) there are reasonable grounds to believe that the application has been made with the intention of avoiding disclosure of any relevant past misconduct of the applicant or a close associate of the applicant, (c) the Director-General considers that a close associate of the applicant who would not be a fit and proper person to hold a contractor licence exercises a significant influence over the applicant or the operation and management of the applicant's business. 13 Clause 26(l)(b)(i) of the Home Building Regulation 2004 ("the Regulations") specifies that: 26 Additional requirements for obtaining contractor licences (1) Before a contractor licence is issued, the Director-General must be satisfied that: … (b) the applicant, if also applying for an endorsement of the contractor licence to show that it is the equivalent of a supervisor certificate: (i) complies with the requirements prescribed by clause 28(1) ... 14 Clause 28(l)(a) of the Regulations specifies: 28 Additional requirements for obtaining certificates (1) Before a certificate is issued, the Director-General must be satisfied that the applicant: (a) has such qualifications or has passed such examinations or practical tests, or both, as the Director-General determines to be necessary to enable the applicant to do, or to supervise, the work for which the certificate is required … 15 Clause 25(l)(a)(vi) of the Regulations specifies: 25 General requirements for obtaining certain authorities under Act (1) Before an authority (other than an owner-builder permit) is issued, the Director-General must be satisfied that: (a) each relevant person in relation to the application for an authority: … (vi) is not subject to any order of the Tribunal that has not been satisfied within the period required by the Tribunal … Discussion 16 The applicant relies on his own evidence. He provided a written statement and also appeared at the hearing. He gave evidence as to the circumstances leading to his bankruptcy, health issues that he experienced that affected his ability to renew his licences in 2006 and subsequently, his lack of knowledge of the CTTT proceedings and the CTTT order and he explained the answers he gave in response to the questions included on the application form that have been singled out by the respondent. 17 The respondent relies on a bundle of material filed pursuant to section 58 of the Administrative Decisions Tribunal Act 1997. The respondent's case is essentially that set out in the reasons for decision provided following the internal review. Ms Walsh appeared on behalf of the respondent and provided oral submissions in support of its case. 18 It is not in dispute that the CTTT order was made in May 2006, some 3 months after the applicant was declared bankrupt. Nor is it in dispute that neither the applicant nor the Trustee was present at the CTTT hearing nor that the CTTT order was made in their absence. Nor is it in dispute that the applicant did not comply with the CTTT order. 19 It is somewhat surprising that neither the original decision maker nor the internal reviewer noted these facts. It is even more surprising that the internal reviewer formed the view that "It is inconceivable to believe that he would not have been aware of the order" without hearing from the applicant and appears to have put considerable weight on factors related to the CTTT order. The internal reviewer should have know that the CTTT order could not stand against the applicant given that he was bankrupt. 20 The Applicant asserted that he never received notice of the CTTT matter because he had moved residence a number of times. Consequently, he was not able to dispute the matter. He said that he received advice from his bankruptcy trustee, RSM Bird Cameron, that he did not have to comply with the order, and he relied on that advice in good faith. The Applicant asserts that he did not make a false declaration in his application relating to the outstanding CTTT order. 21 The applicant's evidence that he did not receive notice of the proceedings is, in my view, totally consistent with the applicant's circumstances at the time. Contrary to the view expressed by the internal reviewer, it is quite conceivable that he would not have known about the CTTT proceedings. In any event, as the applicant was a bankrupt, those proceedings should not have been commenced against him: see section 58 Bankruptcy Act 1966 (Cth). If the matter were properly prosecuted, the correct respondent would have been the Trustee. Unless the Trustee had consented to the proceedings, any order against the applicant could not stand. In the circumstances, the applicant's reply of 'no' to the question "Have you been subject to any order of a Tribunal/Court that has net been complied with?" is not a false answer as he was not "subject to" any such order. 22 It follows, in my view, that any determination that is based on the contrary finding should be set aside. 23 I have no evidence on which I could conclude that the applicant is not a fit and proper person to hold a contractor licence. It is regrettable that the internal reviewer formed the views that he did. 24 The internal reviewer conclusion that the applicant had committed an offence pursuant to section 307A of the Crimes Act was made without any proper foundation. Given the seriousness of the offence, the conclusion should not have been reached on the basis of the CTTT order alone. 25 However, in my view the Commissioner's delegate was correct in concluding that the applicant does not hold a qualification that has been determined by the Commissioner as necessary to enable him to do, or to supervise building work. 26 As noted above, Commissioner is entitled to specify the standards and other requirements for a licence and has done so. Those requirements have been changed since the applicant was granted his earlier licences. Some discretion was given for applicants who previously held a building licence obtained under the earlier standards and who lodged an application for a new licence within two years of the former licence's expiry. In such circumstances, the previous licence was accepted in lieu of the new qualification requirements. 27 Regrettably, the applicant did not lodge his application for a new licence within two years of the expiry of the former licences. He therefore is unable to take advantage of those transitional arrangements. It is apparent from the evidence before me that the applicant does not meet the current specified requirements. This remains the case notwithstanding that he has provided a reasonable explanation for his failure to apply within the two-year period. As noted, the Tribunal is unable to review the standards or other requirements that the Commissioner has specified: Doumit v Commissioner for Fair Trading, Office of Fair Trading [2008] NSWADT 138. 28 The applicant supplied evidence of completion of a Carpentry and Joinery trade course and the completion of a Carpentry and Joinery apprenticeship. This does not meet the approved qualification requirements for the issue of the licence that he is seeking. 29 As the applicant does not meet the qualification requirements for the issue of the licence that he seeks, his application must be refused. Accordingly, it is my view that the correct and preferable decision is that the determination should be affirmed. 30 In the circumstances I do not need to determine whether the applicant had taken reasonable steps to avoid bankruptcy. I note however that the information provided by the applicant suggests that he did take significant steps in that regard. Order The decision under review is affirmed.