Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ghraiche v Commissioner for NSW Fair Trading, Department of Finance and Services [2014] NSWCATOD 5 Hearing dates: 4 November 2013 Decision date: 19 February 2014 Before: A Scahill, Senior member Decision: The decision of the Respondent to refuse the Applicant's application for a contractor's licence in the category of "general building work" is affirmed. Legislation Cited: Home Building Act 1989 Home Building Regulation 2004 Licensing and Registration (Uniform Procedures) Act 2002 Cases Cited: Flanagan v Commissioner of Fair Trading [2004] NSWADT 166 Hughes and Vale Pty Ltd v State of NSW [1955] HCA 28; (1955) 93 CLR 127 Locking v Department of Finance and Services [2013] NSWADT 239 Taheri v Commissioner for Fair Trading, NSW Office of Fair Trading [2006] NSWADT 200 Category: Principal judgment Parties: Charlie Ghraiche (Applicant) Department of Finance and Services (Respondent) Representation: Counsel: Solicitors: D Sissini (Applicant) J Coss - Department of Finance and Services (Respondent) File Number(s): 133226 REASONS FOR DECISION Introduction 1Mr Ghraiche has applied for a review of a decision to refuse his application for an individual contractor's licence in the category of "general building work." The Department of Finance and Services (the Department) refused that application for a number of reasons: * a past Consumer Trader and Tenancy Tribunal (CTTT) order made against him had not been satisfied; * Mr Ghraiche had not demonstrated that he had a minimum of two years relevant industry experience in a wide range of building construction work; and * Mr Ghraiche was not a fit and proper person because of his failure to satisfy the CTTT order and because he had failed to declare certain matters in his application. Legislative Scheme 2The relevant legislation is the Home Building Act 1989 and the Home Building Regulation 2004. The following legislation deals with the requirement for the Applicant to be fit and proper and of good repute; to have satisfied previous CTTT decisions and to have the requisite qualifications and experience. The Home Building Act 1989 3Tribunal in an application for review made under this or any other Act. Section 20(1) (a) provides that the Director-General must refuse an application for a contractor licence if: the Director-General is not satisfied that the applicant is a fit and proper person to hold a contractor licence, . * Section 20 (1A) provides that 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. * Section 20 (2) provides that 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. * Section 20 (3)(a) provides that the Director-General must refuse an application for a contractor licence if the Director-General is not satisfied that any such requirement would be met were the contractor licence to be issued; * Section 20(5) of the Act provides that a decision of the respondent relating to the determining of qualifications or other requirements under sub-section (2) cannot be reviewed by the Tribunal in an application for review made under this or any other Act. * Home Building Regulation 2004 - Qualifications and Experience 4Clause 28(1) of the Home Building Regulation 2004 provides: (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, and (b) has had experience of such a kind and for such a period, as the Director-General considers would enable the applicant to do, or to supervise, the work for which the certificate is required, and (c) is capable of doing or supervising work for which the certificate is required. 5The standards and other requirements determined by the Director- General in relation to the qualifications, examinations and experience required for an endorsed licence or supervisor certificate to do or to supervise building work at the time of rejection of Mr Ghraiche's application were set out in an Instrument effective 11th April 2013 (see: NSW Government Gazette No. 49). Brief Background 6The Applicant has worked in the building industry since 1999. His history includes having worked on his own account in interiors and with small and large construction firms. A major source of controversy in his Application is his directorship of GBS Constructions Pty Ltd together with his brother Stephen from August 1999. This resulted in consumer claims and an award in the Consumer Trading and Tenancy Tribunal (CTTT), winding up orders in relation to GBS Constructions Pty Ltd and Bankruptcy proceedings in relation to the Applicant in the Federal Court finalised in 2005. 7On 25 January 2013 the Applicant lodged an application for an individual contractor's licence in the category of general building work. In support of his application, the Applicant submitted the following: (1) Capital Training Institute Certificate IV in Building and Construction (Building) CPC40110 and Record of Results dated 21 January 2013; (2) Capital Training Institute Diploma in Building and Construction (Building) CPC50210 and Record of Results dated 21 January 2013; (3) Referee's Statement building work from Bechara Grayche Licence no. 56765C - category of builder. 8On 14 March 2013 the Respondent advised the Applicant that his application for an individual contractor's licence in the category of general building work was refused on three bases: * a Consumer, Trader and Tenancy Tribunal order made against him had not been satisfied; * he had not verified the required 2 years relevant industry experience in a wide range of building construction work as he did not hold a licence to enable him to sub contract for residential building work; * * as he had failed to declare specific information requested at section 7 of the application form as well as having an unsatisfied CTTT order it was determined he was not a fit and proper person to be the holder of a contractor licence in accordance with sections 20(1) (a), 20(1A), and 20(3) (a) of the Home Building Act 1989. 9On 23rd May 2013, the Applicant's solicitor wrote to the Respondent seeking internal review of the decision. The letter did not include any further material in support of the application. 10On 4th June 2013 as part of the internal review process the Respondent wrote to the Applicant's referee Mr Bechara Grayche seeking further information about the Applicant's work with him. Mr Grayche's referee statement in support of the Applicant's application had indicated that the Applicant had worked for Mr Grayche as a sub-contractor. The Commissioner again wrote to Mr Grayche on 25 June 2013 seeking information about the Applicant's work with Mr Grayche who wrote back on 28 June 2013 indicating he would be overseas until 10 August 2013. No further information from Mr Grayche was received by the Respondent. Outcome of internal Review 11On 1st July 2013 the internal reviewer affirmed the previous decision to refuse Mr Ghraiche a contractor licence on the previous bases - the lack of evidence of 2 years' experience; his provision of false and misleading statements in section 7 of his Application and his failure to satisfy the Consumer, Trader and Tenancy (CTTT) Order made against him in April 2003. 12The Applicant filed an Application for Review of this decision with the Tribunal on 29 July 2013. The Applicant subsequently provided to the Tribunal further material * An affidavit from the Applicant's wife Annie Keverian dated 22nd July 2013; and * 2 further affidavits from the Applicant dated 27th July and 24th September 2013. Summary of the Applicant's Case 13The Applicant's case was that * He had worked for a number of building corporations and had obtained the experience necessary minimum 2 years' experience to obtain a licence, but had been unable to obtain documentary evidence from these building corporations; * His uncle Bechara Grayche had been in error when he completed the Referee form indicating he had been a sub-contractor when in fact he had been employed by Bechara Grayche; * His wife, Ms Keverian had assisted him to complete his Application form; * He was unable to give details concerning GBS Constructions Pty Ltd registered with himself and his brother Steven Ghraiche as directors. He said he had never worked for or represented the company; * He had been unaware of the Home Warranty Insurance claims and the CTTT order made against him in April 2003; * He was unaware of the findings made against GBS Constructions Pty Ltd by Fair Trading or that it had been wound up; and * He had become aware of the CTTT order only when all monies from his matrimonial settlement were directed through Bankruptcy proceedings in or around October 2004 to satisfy the CTTT order in the amount of $133,384.24; and * An officer at the Department had told him that it was all right to fill in the application form as he had done and that the Department would contact him later if it had concerns. Applicant's building experience 14The Applicant outlined his work experience as consisting of a mixture of short term contracts and full-time employment since 2006. In particular he had worked for the Abigroup as a foreman on the Pacific Square Stage 2 project from March 2007-10 June 2009 when his role became redundant. The Tribunal understands that this project incorporated retail and residential construction. Both the Applicant and his wife Ms Keverian had made numerous efforts to obtain documentation from Abigroup setting out the kind of work he had done there - without success. 15After leaving Abigroup he had worked for 3 large companies as a site manager or site supervisor for 2, 4 and 5 month periods. 16The Applicant had also worked for his Uncle Bechara Grayche full-time and in between his other employment and contracts. He said that his Uncle had made a mistake when filling out the reference for him in stating he had worked for him as a contractor. The Applicant said he had been employed by his Uncle, Mr Grayche as opposed to sub-contracting to him. Applicant's evidence concerning Application form declarations 17In relation to the completion of the Application form and his answers at Question 7 the Applicant said: His wife Ms Keverian had filled the form in for him. Ms Keverian had attended at the Fair Trading Office with him to lodge the documents and had asked the officer about various matters requiring declaration in paragraph 7 of the form. He said that the officer had told them just to answer "no" to the questions; that if something came up they would receive a letter asking for an explanation; that they were not looking for driving offences when asking about criminal offences; and that section 9 contained a bullet point "I have a right to seek access to and correct any information I have supplied."; and "My wife marked all questions in "Section 7" as "no" as directed by the officer." 18In relation to his own knowledge about the matters in section 7 when he had lodged the application, the Applicant said he wasn't aware: * of a Home Warranty insurance claim or CTTT order in relation to Feitsher and Dvorsky against GBS Constructions Pty Ltd; * of a "Show Cause"; improper conduct finding; or winding up orders in relation to GBS Constructions Pty Ltd; * that the Supreme Court Bankruptcy proceedings which had taken the funds from his matrimonial proceedings arose out of CTTT proceedings; * that driving offences were criminal offences. Evidence of Ms Keverian 19Ms Keverian confirmed the Applicant's account that she had completed the form on her husband's behalf; attended at the Department of Fair Trading Office and had accepted the officer's advice about completion of the forms. She said that when she had asked her husband about the matters in the form, his only recollection in relation to the GBS Construction Pty Ltd matters was that as a result of a court order he had not received any monies from his matrimonial settlement. Discussion of Issues Experience requirement Home Building Regulation 2004 - Clause 28(1) 20The "experience" and "qualification" requirements for a building contractor licence were set out in NSW Government Gazette 49, 11th April 2013. It is clear and not contested that Mr Ghraiche has the appropriate qualifications. One of the issues is whether Mr Ghraiche satisfies the experience requirement 21The definition of "experience" in the gazette is set out below: Experience "Experience" means experience gained by the applicant as: (a) an employee of the holder of a contractor licence authorising the holder to do the class of residential building work in which the experience is gained; or (b) a person otherwise lawfully engaged by the holder of an endorsed contractor licence or supervisor certificate authorising its holder to supervise the class of residential building work in which the experience is gained and who has supervised and directed the applicant in the doing of the work, and in respect of which the applicant is financially remunerated for their work during the relevant period; Schedule 1 of the Instrument requires that the "experience" must be at least 2 years' relevant industry experience in a wide range of building construction work. 22In the matter of Locking v Department of Finance and Services[2013] NSWADT 239 at paragraphs 18-19, Deputy President Hennessy summarised the multiple roles of a builder and the requirement for experience in a wide range of building work as follows: 18. A building contractor has the overall responsibility for a site and must be able to supervise all of the trades required to complete any type of dwelling. Additionally a builder must be able to determine that all trades have complied with all standards and requirements. There are many gaps in Mr Locking's trade supervisory experience and therefore his understanding of certain trades. Those trades include flooring, bricklaying, stonemasonry, wet plastering, painting, decorating, general concreting, tiling, demolishing, fencing, glazing and waterproofing. 19. A building contractor is also able to contract with the public, and must therefore be able to negotiate a contract, quote for a project and co-ordinate the trades to be able to complete the project on time and within budget. He or she must also be able to negotiate and discuss the jobs with council and private certifiers to ensure that the work is passed fit when appropriate. Findings in relation to Experience 23The Applicant has provided evidence by way of a letter of appointment and pay slips to show that he was employed by Abigroup commencing 19th March 2007 as a foreman and finishing by reason of redundancy on 8th July 2009. However he did not provide references from Abigroup demonstrating that supervised experience in a wide range of building work as set out by the Tribunal in the matter of Locking above. He has provided evidence of working with Brookfield Multiplex; Barbro Constructions and Built. However there are no supervisor references presented from these roles. 24Mr Bechara Ghrayche, a licensed builder and qualified supervisor, has provided a referee's report saying that the Applicant worked full-time with him as a sub-contractor from 2nd January 2009 to 31st December 2012. However, the Applicant is not licensed to work as a sub-contractor. The gazetted experience requirement is that the Applicant has gained experience as an employee, or otherwise lawfully engaged by the supervisor attesting to the experience. To rely on this experience it would be necessary for the Tribunal to clarify this and the types of work in which Mr Grayche had supervised the Applicant. Unfortunately Mr Grayche was not available to give evidence on this matter. 25In the absence of Referee statements to this effect, the Tribunal finds that the Applicant has not demonstrated that he meets the "experience" requirement of 2 years' relevant industry experience in a wide range of building construction work. Discussion in relation to alleged non-compliance with CTTT orders. 26The Respondent referred to the provisions of Clause 25(1) (a) of the Home Building Regulation 2004 that the Director-General must be satisfied of a number of matters before issuing an authority. These include that the Applicant "is not subject to any order of the Tribunal that has not been satisfied within the period required by the Tribunal". The Respondent referred to a failure to satisfy an order of the CTTT. 27Further, the Respondent considered that failure to satisfy the CTTT determination also demonstrated that the Applicant was not a fit and proper person to be the holder of a contractor licence. 28As a result of documents filed by the Applicant in this matter and the Applicant's oral evidence, the Tribunal is satisfied that in or around October 2004 this matter was settled with payment made by the Applicant through proceedings in the Federal Court. Accordingly the Tribunal is satisfied that the Applicant "is not subject to any order of the Tribunal that has not been satisfied within the period required by the Tribunal". Discussion in relation to "not a fit and proper person" 29Section 20 (1A) of the HBA provides that in determining whether an applicant is a fit and proper person to hold a licence, as required by section 20(1)(a), the Director-General is to consider whether the applicant is of good repute, having regard to character, honesty and integrity. 30There were 2 aspects to the Respondent's contention that the Applicant was not a fit and proper person for the issuing of a contractor licence pursuant to section 20 of the Home Building Act 1989. 31One was the failure to satisfy the CTTT order. This is no longer a consideration. 32The second aspect was the Applicant's "non-disclosure and misinformation in the application". This referred to the Applicant's answers of "no" in relation to the Financial and Criminal History questions in paragraph 7 of the Application. The Applicant did not declare the appointment of a liquidator to or the winding up of GBS constructions Pty Ltd; the cancellation of the Corporation Licence; the payment of an insurance claim or disciplinary action in 2003. Nor did he declare his conviction on a traffic matter. 33The Applicant's and Ms Keverian's evidence that they had been told to answer "no" to these questions by the officer of Fair Trading was not challenged by evidence from the relevant officer himself. Rather it was challenged by Mr Hadden's evidence that he had spoken to the relevant officer's supervisor who had said that the relevant officer had said he had never given that advice in his career. 34In the face of Mr Ghraiche's and Ms Keverian's direct evidence on this point and the absence of the relevant officer, the Tribunal accepts that Mr Ghraiche may have mistakenly believed that some of his answers to the questions in section 7 were appropriate. 35I am satisfied that Mr Ghraiche mistakenly believed that he had responded to the Application form appropriately at Question 7(iii) when he answered "no" in relation to the criminal offences in that he believed his conviction for a driving offence was not relevant to this question. 36However I am satisfied that Mr Ghraiche was at least careless in his response to the other questions within section 7 that related to previous business difficulties. His evidence around his understanding of what had occurred with GBS Constructions Pty Ltd was unsatisfactory, especially as he told the Tribunal that he did not see any of the proceeds of his matrimonial settlement as a result of the bankruptcy proceedings. The Tribunal considers it unlikely that Mr Ghraiche would not have enquired as to why he had not received any monies as a result of his matrimonial settlement and that he was not candid with the Tribunal about this. 37The Tribunal also noted Mr Ghraiche's tendency to deny his role in previous building and business dealings and in his application process. He relied on the actions of others - Stephen Ghraiche fellow director in GBS Constructions Pty Ltd, his wife Ms Keverian, the officer at the Department of Fair Trading and his Uncle Mr Bechara Grayche to excuse himself. He did not provide evidence as to how he would deal with a building dispute with a consumer in the future. The Tribunal found this to be an unsatisfactory lack of understanding of the responsibility of a person seeking an individual contractor licence. The Tribunal considers that these issues go to the issue of character in analysing whether or not the Applicant meets the requirement of section 20(1) (A) of being of good repute, having regard to character, honesty and integrity. 38This issue was dealt with by the Tribunal in the matter of Taheri v Commissioner for Fair Trading, NSW Office of Fair Trading [2006] NSWADT 200 at paragraph 6 and 7. In that matter it was alleged by the Commissioner that the Applicant, Mr Taheri, had omitted information and made false declarations in his application to the Department; he had denied responsibility for his actions, or attempted to shift blame to third parties. The Tribunal noted that Hughes and Vale Pty Ltd v State of NSW [1955] HCA 28; (1955) 93 CLR 127 is authority for the principle that the three characteristics of fitness and propriety are honesty, knowledge and ability. It noted that the licensing of a person as a building contractor under the Act means that the person can be held out to the public as being not only possessed of acceptable expertise, but as a person of integrity and honesty: Flanagan v Commissioner of Fair Trading [2004] NSWADT 166 at paragraph 32. Findings 39The Tribunal finds that Mr Ghraiche has the appropriate qualifications for a contractor licence. Mr Ghraiche is not able to demonstrate he has the requisite experience to be granted an individual contractor licence and it affirms the Commissioner's decision in this regard. 40In relation to Mr Ghraiche's fitness and propriety to be granted an individual contractor licence, this Tribunal refers to and adopts the findings of the Tribunal in the matter of Taheri. The findings of the Tribunal in relation to Mr Taheri's application were that 38 In this regard, Mr Taheri fails the test of fitness and propriety outlined in Hughes and Vale Pty Ltd v State of NSW. In my view Mr Taheri's conduct has demonstrated little regard for the law and demonstrates a lack of responsibility and honesty. It is also my view that Mr Taheri has not totally accepted responsibility for his actions and that it is too soon to yet be confident that he is unlikely to repeat this kind of behaviour if he again found himself in difficult circumstances. Conclusion 41Based on all the evidence, I am not satisfied that Mr Ghraiche has demonstrated a minimum of two years relevant industry experience in a wide range of building construction work as described above by Deputy President Hennessy in the matter of Locking. 42Further, I am not satisfied that Mr Ghraiche has demonstrated that he is a "fit and proper" person to be issued with an individual contractor licence in that he has not demonstrated that he is of good repute, having regard to character, honesty and integrity. 43 Accordingly, the correct and preferable decision is to affirm the Department's decision. ********** 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: 19 February 2014