Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mahmoud v Commissioner of Fair Trading [2014] NSWCATOD 73 Hearing dates: 20 February; 6th March and 12th March 2014.Written submissions closed on 21st March 2014 Decision date: 08 July 2014 Jurisdiction: Occupational Division Before: A Scahill, Senior Member Decision: The decision is affirmed Catchwords: experience in a wide range of building work Legislation Cited: Home Building Act 1989 Home Building Regulation 2004 Cases Cited: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 Locking v Department of Finance and Services [2013] NSWADT 239 Sterjovski v Director-General, Department of Transport [2002] NSWADT 10 Category: Principal judgment Parties: Mohamad Mahmoud (Applicant) Commissioner of Fair Trading (Respondent) Representation: M Mahmoud (Applicant in person) Mr Maynard (Respondent) File Number(s): 1330247 reasons for decision Introduction 1Mr Mahmoud has applied for a review of a decision to refuse his application for a contractor's licence in the category of "general building work." The Department of Finance and Services refused that application on 27 March 2013 because Mr Mahmoud had not demonstrated that he has a minimum of two years relevant industry experience in a wide range of building construction work. 2That decision also referred to concerns that the Applicant may have provided false information in his application which suggested he was not a fit and proper person to be the holder of a Contractor licence. The Respondent did not maintain this contention on Internal Review or before the tribunal. 3The Respondent affirmed its decision on Internal Review on 14 May 2013. 4The Applicant lodged the current application to the tribunal on 22nd August 2013. Leave was granted for the Applicant to proceed with the application despite him not having lodged within the required time. Legislative Scheme 5Section 20(1)(a) of the Home Building Act 1989 (the Act) provides that (1) 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. 6Section 20(1A) of the Act provides that 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. 7Section 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. 8Clause 26(1)(b)(i) of the Home Building Regulation 2004 reads: Before a contractor licence is issued, the Director-General must be satisfied that the applicant, if also applying for an endorsement of the contractor licence to show that it is equivalent of a supervisor certificate complies with the requirements prescribed by clause 28(1). 9Clause 28(1) 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. 10The current 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 are set out in an Instrument effective 3rd July 2013 set out in the NSW Government Gazette 12 July 2013 OFFICIAL NOTICES HOME BUILDING REGULATION 2004. This post-dates the Instrument applying at the time of the Internal Review decision. 11The definition of experience in the Instrument is as follows "Experience" means experience gained by the applicant as: (a) an employee of; or (b) a person otherwise lawfully engaged by, the holder of a contractor licence authorising the holder to do the class of residential building work in which the experience was gained ("the Work"), where during the relevant period, the applicant was: (c) supervised and directed in the doing of the Work by the holder of an endorsed contractor licence or supervisor certificate authorising its holder to supervise the Work; and (d) financially remunerated for the Work; 12 The Tribunal notes that the Director General of the Department maintains that "experience" for these purposes does not include Owner/Builder experience. The Application for Review by ADT 13The role of the ADT on review is to review the previous decision and to make the correct and preferable decision. See Sterjovski v Director-General, Department of Transport [2002] NSWADT 10 at paragraphs 10, 11 and 12. 14 The Tribunal may take into account new information not previously before the decision maker. See Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409. 15The Tribunal may affirm, vary or set aside the original decision Brief Background 16On 21 January 2013 the Applicant lodged an application for a variation to his current carpentry and joinery licence in the category of general building work. He had obtained his carpentry licence on 14 April 2011. In support of his application, the applicant submitted the following: (1) Australian Trade Training College Certificate IV in Building and Construction (Building) CPC40110 dated 14 December 2012. (2) Referee's Statement building work from Sam Robinson Elite Constructions, Licence no. 9727C dated 10 January 2013. 17Mr Robinson's reference stated that Mr Mahmoud had worked for him for 3 periods from January 2011 to 6 January 2013 which added up to approximately 21 months in employed /supervised work in a wide range of building activities. 18The Respondent wrote to Mr Mahmoud on 20 February 2013 noting that the licence details in relation to Mr Robinson were incorrect and seeking further information from Mr Mahmoud about his history of employment in the building industry. 19Mr Mahmoud then provided a detailed resume and a reference from Mr Al Atabi Qualified Supervisor dated 11th March 2013. Mr Al Atabi's reference indicated that Mr Mahmoud had worked for him during various periods during 2004, in 2005-2006 doing carpentry work and in 2012 doing site and project supervision, until the present. 20On 27 March 2013, the Respondent advised the Applicant that his application to vary his individual contractor licence to the category of building was refused on the basis he failed to satisfy the practical experience requirements. That is, he did not have a minimum of at least two years relevant industry experience in a wide range of building construction work. The Respondent also noted that the Applicant was not a fit and proper person to hold a Contractor's licence as he had provided false information in relation to his referee Sam Robinson. 21On 15 April 2013 the Applicant requested an internal review of this decision. On 14 May 2013, the Respondent advised the Applicant that the decision of the internal review was to affirm the original refusal of his application while not pressing the issue about his fitness and propriety in relation to the incorrect information about Mr Robinson's licence which had been provided by Mr Robinson. The Respondent provided him with a Statement of Reasons outlining that the refusal was based on the fact that the respondent was not satisfied that Mr Mahmoud met the experience requirement. The Hearing 22The matter was listed for hearing on 20th February, 6th and 12th March 2014. The Tribunal considered the section 58 documents provided by the Respondent. Oral evidence was taken from Mr Mahmoud and from Mr Al Atabi, a referee, by telephone. Written submissions closed on 21st March 2014. Oral evidence of Mr Mahmoud 23Mr Mahmoud's resume reveals that he has worked in the building industry since 1984, having obtained a construction and trade certificate in Engineering for Construction in Lebanon. He worked in steel fixing and formwork in Lebanon. He commenced working in the building industry in Sydney in November 1995. 24At the hearing Mr Mahmoud gave oral evidence addressing his resume and the 2 referee's statements provided on 11 March 2013 by Mr Al Atabi with whom he has been working as both a subcontractor and as an employee. 25He said he had been working at the Smith Crescent job for Mr Al Atabi from 13 August 2012 to 26 September 2013. The early period of the job between August 2012 and February 2013 was the preparation, demolition site safety, council discussions and engineering. He had done this together with Mr Al Atabi. The work with subcontractors commenced in February 2013. Mr Al Atabi trusted him and he, Mr Mahmoud, supervised the subcontractors. He did the work overseeing the other trades - electrician, landscaper and plumber. This job finished in September 2013 but he returned to the site to check on defects. Each time somebody bought one of the townhouses he would go back and look at issues that might have arisen. He contended that this meant that he had been supervised by a licensed builder and had undertaken a wide range of building work on this job for one year and one month. 26The job at Woodlands Road Liverpool had commenced in November 2012 and finished in October 2013. It was an extension to an existing ground floor and top floor addition to the main house with a new granny flat in the There was a cross over a period between the Smith Street and the Woodlands Road jobs - from November 2012 to September 2013. Mr Mahmoud would go between the different jobs - sometimes spending four or five hours on each job. These were the only jobs he worked on during this time. 27After one month on the Woodlands Road job, around December 2012, he commenced working as an employee for Mr Al Atabi. The work on the Woodlands Road job gave him a further month of working in a supervised position in a full range of building construction work with a licensed builder. 28He worked on the Mulligan Street job from September 2013 until the present. It was a top floor addition to an existing house and a new granny flat. He was supervised there by Mr Al Atabi. He had been doing a wide range of building construction work there for six months as at March 2014. 29Besides the work set out above, Mr Mahmoud agreed that his resume showed that the only other work he had undertaken for a licensed builder was that with Mr Al Atabi between October 2004 and December 2005 and that this was largely carpentry work. He considered that he had accumulated two months of wide building experience when he worked as the leading supervisor on the job. Evidence of Mr Al Atabi 30Mr Al Atabi is a licensed builder. He had provided 2 referee's forms dated 11 March 2013 in relation to having contracted Mr Mahmoud as a sub-contractor and as having employed him. There is a file note of a telephone conversation of an officer of the Department with him on 26th March 2013 clarifying information in these 2 references at pages 48 and 50 of the section 58 documents. Mr Al Atabi also gave evidence to the Tribunal by telephone at hearing on 12th March 2014. From October 2004 to December 2005 he had supervised Mr Mahmoud but this had largely been in carpentry work. It was not a wide range of building work - although he did do some extra work. Mr Al Atabi said that between August 2012 and February 2013 Mr Mahmoud was "pushing paperwork" for him on the job at Smith Crescent. Construction work did not commence until February 2013 and it continued until September 2013. The tribunal understood this to mean that it should find that from February to September 2013 amounted to seven months of Mr Al Atabi supervising Mr Mahmoud in a wide range of building construction work. 31He said that there had been no defect work with any of his jobs. 32Mr Mahmoud had worked for him on the Woodlands Road job from November 2012 until it finished in October 2013. Mr Mahmoud had undertaken carpentry work, organising materials deliveries and the supervision of trades from July 2013.This job was part time. Mr Mahmoud moved between this job and the one at Smith Crescent. 33Mr Al Atabi said that he had supervised Mr Mahmoud at the Mulligan Street job from September 2013 until the present. He did not think that Mr Mahmoud had had appropriate experience in a wide range of building skills yet. When he has finished off the Mulligan Street job where he has been working since September 2013 he thought that he would be capable of being a builder. He referred to the different aspects of being a builder and the complication of dealing with council, trades, suppliers and certifiers. Respondent's submissions 34The Respondent relied on the written material in the section 58 documents. It also provided a written submission subsequent to Mr Mahmoud's and Mr Al Atabi's oral evidence dated 14th March 2014. 35That submission contended that it had contacted Mr Al Atabi as directed by the Tribunal to put to Mr Al Atabi the Respondent's view of the "experience" gained by Mr Mahmoud in working for and with Mr Al Atabi. The conclusions to be drawn were that: * Mr Mahmoud had been involved in all aspects of construction work on the Smith Crescent Liverpool job from February to September 2013; * The work on the Woodlands Road job from November 2012 to October 2013 overlapped with the Smith Crescent job and Mr Mahmoud had not been paid for this work on the Woodlands Road job. This means that this work could not be counted as experience under the definition. * Mr Mahmoud's work on the Mulligan Street job had only commenced "a few weeks" prior to 2 March 2014. It was an owner/builder job and the experience could not be counted for the purposes of accumulating 24 months experience. 36Accordingly Mr Mahmoud had only 8 month's experience with Mr Al Atabi from February to October 2013. The Respondent would also recognise four months experience in 2004-2005 with Mr Al Atabi. In all this amounted only to 1 years "experience". Findings on Qualifications and Experience 37I am satisfied that Mr Mahmoud has the relevant qualifications. He obtained a Certificate IV in Building and Construction from Australian Trade Training College dated 14 December 2012. 38The issue in this matter is whether Mr Mahmoud can demonstrate that he has supervised experience in a wide range of building construction work for 24 months. The experience must have been as an employee of, or as a person otherwise lawfully engaged by, the holder of a contractor licence authorising the holder to do the class of residential building work in which the experience was gained, where during the relevant period, the applicant was supervised and directed in the doing of the work by the holder of an endorsed contractor licence or supervisor certificate authorising its holder to supervise the work and financially remunerated for the work. 39The Tribunal accepts the Respondent's submission that the only relevant references are those provided by licensed builders. In this instance Mr Al Atabi is the only referee. 40The evidence of Mr Mahmoud and Mr Al Atabi differs in relation to the roles performed by Mr Mahmoud in his work with Mr Al Atabi since August 2012. I find that these are differences of characterisation of Mr Mahmoud's role and not the result of dishonesty on either witness's part. 41Further "experience" in this context has a technical meaning in line with the instrument defining "experience" of July 2013. This technical meaning may not have been in the mind of either Mr Al Atabi or Mr Mahmoud when each gave his evidence. 42The Respondent concedes that Mr Mahmoud has a total of one year of supervised experience in a wide range of construction work amounting from the work on the Smith Street job and the earlier work in 2004-2005 for Mr Al Atabi. The Tribunal agrees with this submission. 43Mr Al Atabi gave evidence that he does not think that as yet Mr Mahmoud could be a licensed builder - but that he will be once he finishes the Mulligan Street job. 44The Respondent submits that Mr Mahmoud's current supervised work on the Mulligan Street job only commenced a few weeks prior to March 2014. Mr Al Atabi had told the Tribunal in his evidence that it commenced in September 2013. It is not clear what Mr Al Atabi may have said to the Respondent in their telephone conversation after his oral evidence on 14th March 2014 that prompted this conclusion. 45The Respondent also submits that the Mulligan Street job does not qualify as experience - as it is work for an owner/ builder. The tribunal does not accept the rejection of this work for the purposes of establishing experience on the basis that it is an owner/builder project. However even if this work on Mulligan Street were to be counted as providing experience since September 2013 - it would not, as at the time of decision, bring the total of supervised work in a wide range of building and construction work to 24 months. 46Based on the evidence from himself and from Mr Al Atabi, I am satisfied that Mr Mahmoud cannot demonstrate that he meets the "Experience" requirement. He has years of experience in the building trade. However much of his experience has been gained as a sub-contractor carpenter or by being self-employed. 47This experience in carpentry and joinery work is not the equivalent of "a wide range of building construction work" as required by the Instrument. Carpentry and joinery work is a sub-category of building. It is only one aspect of the work required to be done in order to complete the construction of a residential dwelling. 48The Tribunal's Deputy President Hennessy reviewed the requirements for experience for a building contractor in the matter of Locking v Department of Finance and Services [2013] NSWADT 239 at 18-19: "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. ......Those trades include flooring, bricklaying, stonemasonry, wet plastering, painting, decorating, general concreting, tiling, demolishing, fencing, glazing and waterproofing. .........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." Conclusion 49Based on all the evidence, I am not satisfied that the evidence shows that Mr Mahmoud has a minimum of two years relevant industry experience in a wide range of building construction work. 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 New South Wales Civil and Administrative Tribunal. Registrar ********** 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: 08 July 2014