Merhi v Commissioner for Fair Trading [2014] NSWCATOD 143

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Merhi v Commissioner for Fair Trading [2014] NSWCATOD 143 Hearing dates: 30 July 2014 Decision date: 02 December 2014 Jurisdiction: Occupational Division Before: A Scahill ,Senior Member Decision: 1. Accordingly the tribunal affirms the Respondent's decision that Mr Merhi did not meet the 24 months experience requirement as he was neither an employee nor lawfully engaged during this time. 2. The tribunal affirms the Respondent's decision to refuse a licence to Mr Merhi. Catchwords: Experience, lawfully engaged Legislation Cited: Administrative Decisions Review Act 1997 Administrative Decisions Tribunal Act 1997 Civil and Administrative Tribunal Act 2013 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 Category: Principal judgment Parties: Matthew Merhi (Applicant) Commissioner for Fair Trading (Respondent) Representation: M Merhi (Applicant in person) File Number(s): 133314

reasons for decision 1Mr Merhi has applied for review of the Respondent's decision on internal review dated 19th of September 2013 under the Home Building Act 1989 ("the Act") to refuse him a contractor licence in the category of general building work. Mr Merhi lodged his application for review of the Respondent's internal review decision with the tribunal on 17 October 2013. 2Mr Merhi had lodged his application for an individual contractor licence with the Respondent on 20 June 2013. He attached to his application: * referee's statements from builders Mr Sam Kassis and Mr Sid Merhi; * certified copies of Certificate III in Carpentry CPC30208 and Certificate IV in Building and Construction (Building) CPC4Q110 and the associated units of competency from Australian Construction Training Services Pty Ltd, both dated 17 July 2012; * a reference titled Witness Testimonial dated 15 June 2013 signed by both Michael Khoudair and Anthony Saliba; and * a summary of his work experience. 3On 25th of July 2013 the Respondent advised Mr Merhi that it was satisfied that his qualifications met requirements but that it did not consider that he had two years of experience lawfully engaged in a wide range of building construction work required by the Instrument under the Regulations to the Act. The Respondent refused Mr Merhi a building contractor's licence. 4Mr Merhi wrote seeking internal review of the decision on 3 August 2013. He provided information about his status as a subcontractor and the addresses of certain jobson which he had worked. The letter was countersigned by his two previous builder referees, Mr Sid Merhi, his father and Mr Sam Kassis. 5The Respondent then sought clarification from Matthew Merhi of the nature of his engagement with these builders - that is whether he had worked as an employee or a subcontractor. 6Mr Merhi then provided the Respondent with documents such as invoices that he had rendered to Sid Merhi and Sam Kassis for his work and a statement from his accountant stating that "to the best of their knowledge he was a subcontractor working under the direct supervision of the builder." 7The Respondent's decision on internal review was that Matthew Merhi did not meet the requirement of having been employed or otherwise lawfully engaged for a 2 year period of experience and refused to issue an authority to him.