Palummo v Department of Finance & Services [2014] NSWCATOD 69

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Palummo v Department of Finance & Services [2014] NSWCATOD 69 Hearing dates: 20 March 2014 Decision date: 20 March 2014 Jurisdiction: Occupational Division Before: S Montgomery, Senior Member Decision: The decision under review is set aside. In its place the decision is made that the licence is granted. Catchwords: Contractor licence as builder; whether Applicant possesses required experience; relevant industry experience in a wide range of building construction work. Legislation Cited: Administrative Decisions Review Act 1997 Home Building Act 1989 Home Building Regulation 2004 Cases Cited: Vella v Department of Finance and Services [2013] NSWADT 84 Category: Principal judgment Parties: Matthew Palummo (Applicant) Department of Finance & Services (Respondent) Representation: M Palummo, (Applicant in person) W. Maynard, solicitor (Respondent) File Number(s): 1420056

reasons for decision 1This is an application for review of a determination by a delegate of the Respondent to refuse an application by Matthew Palummo ('the Applicant') under the Home Building Act 1989 ('the HBA') for an individual contractor licence for the category of general building work. 2The primary reason that the Applicant's application for a contractor licence was refused was that the Respondent found that he did not possess the necessary industry experience required under relevant provisions of the HBA and the Home Building Regulation 2004 ("the Regulation"). 3In support of his application the Applicant supplied relevant information in regard to his formal qualifications and Referee Statement forms completed by Mr James Graziano and Mr John Winter. 4The Respondent concluded that the Applicant had satisfied the approved qualification requirements for a building licence but requested that he provide further information in regard to his employment history and building experience. The Applicant was required to provide an additional referee statement to further verify his experience in a wide range of residential building and construction work to satisfy the practical experience requirements for issue of a licence/certificate as a builder. 5The experience requirement for a building licence is 'at least two years relevant industry experience in a wide range of building construction work'. 6The Respondent determined to refuse the Applicant's application on the basis that he had not verified the required period of building experience. The letter included the following reasons for refusal: i) in evaluating whether an applicant has a "wide range of building construction work", Fair Trading needs to ascertain if the types of projects the applicant worked on sufficiently covered "construction work" (e.g. new single dwellings, new villas, new units, extensions, major alterations or additions); ii) in determining the relevancy of the applicant's building experience, consideration was given to the duties carried out by the applicant for each project; iii) the applicant's claimed experience at 21 Billyard Avenue, Wahronga and 35 Burrandong Crescent, Baulkham Hills was only acceptable for a period of 7 months, as verified by his referee James Graziano; iv) the applicant had not provided street addresses for residential experience gained at The Ponds, neither was it substantiated by a referee's statement from a licensed builder; and v) the applicant's claimed experience gained while undertaking commercial work and four (4) sites did not satisfy the practical experiential requirement for the issue of an endorsed contractor licence in general building work under the HBA. 7The Applicant requested an internal review of the refusal decision. In support of the request he provided further information in regard to work undertaken at 13-15 Myrtle Street, North Sydney and Lourds Retirement Village, Killara and asserted that the Respondent had incorrectly classified the work as commercial building work. The Applicant stated that those projects were residential; and requested that the experience be considered as part of the internal review. 8The Applicant provided an additional referee's statement form signed by Jason Butler on 23/10/2013 which verifies that the Applicant subcontracted to him on and off over the past 4 years. Mr Butler estimated the period of work to be 17-18 months and identified work undertaken at 3 Slade Street, Rozelle and at 90 Glossop Street, Balmain. 9The Applicant also asserted that he had other relevant experience. He stated that he had undertaken construction of two new homes (double and single storey) for The Right Build Homes but that that the company is in liquidation and that he is unable to contact Sean Vanderburg in order to obtain a referee's statement form. The Applicant claimed that during this time he was paid on wages and deemed an employee. 10The matter came before me for hearing on 20 March 2014. On that occasion I determined that the decision under review should be set aside and that in its place the decision should be made that the licence is granted. The Respondent has sought written reasons for that decision. These reasons are provided in response to that request.