Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Sakkal v Commissioner for Fair Trading [2015] NSWCATOD 78 Hearing dates: 13 July 2015 Decision date: 27 July 2015 Before: R. Deutsch, Senior Member Decision: The decision of the Respondent is set aside and substituted with a decision that the Applicant satisfies the requirements and his licence is varied to allow him to carry on work in the general building category Catchwords: Relevant work experience, supervision, owner-builder permits Legislation Cited: 1. Home Building Act 1989 and 2. Home Building Regulation 2004 Cases Cited: Zada v Director-General, Department of Finance and Services, NSW Fair Trading (2014) NSWCATOD 16 at 32 Ivanovski v Commissioner of NSW Fair Trading, Department of Finances and Services (2013) NSWADT 274. Category: Principal judgment Parties: Andrew Sakkal (Applicant) Director-General NSW Fair Trading (Respondent) Representation: Solicitors: Crown Property Lawyers (Applicant) Legal services, Department of Finance & Services (Respondent) File Number(s): 1520074 reasons for decision Factual Background 1. On 5 August 2014, the Applicant lodged an application with the Respondent to vary his individual contractor licence to the category of general building work. In support thereof the Applicant filed certified copies of certain documents indicating his qualifications together with a Referee Statement from Mr George Boudaher signed and dated 12 December 2013. 2. On 30 November 2014, the Respondent notified the Applicant by post that the application had been refused as it was determined that the Applicant had not satisfied the experience requirement of two years acceptable experience in a wide range of building construction work. 3. On 28 November 2014, the Respondent received a request from the Applicant for an internal review of the refusal decision. This request was supported by the following additional information/documentation: * A Referee Statement from Stephen Raheb signed and dated 24 November 2014; * An insurance Certificate of Currency issued by eSentrty Underwriting Pty Ltd; * A copy of ground floor plans for a property in Hurlstone Park; * Further information from the Applicant providing more detail regarding the relevant work experience. 1. Further information/documentation was provided as follows: * Affidavit of the Applicant signed and dated 2 June 2015; * Affidavit of George Boudaher signed and dated 2 June 2015 * Statements from Stephen Rehab and George Boudaher both signed and dated 2 June 2015. 1. On 17 March 2015, the Respondent confirmed its original decision to refuse the Applicant's application to vary his licence. 2. On 13 April 2015, the Applicant applied to this Tribunal for a review of a decision made by the Respondent to refuse to vary his individual contractor licence to the category of general building work. 3. The matter was set for a hearing on 24 June 2015. After the commencement of that hearing it was quickly concluded that the Applicant had additional detailed relevant information to provide in support of his application and by consent the hearing was adjourned so as to enable the Applicant to do so. 4. In accordance with an agreed timetable the Applicant made available to the Respondent the following additional material: * Statement of the Applicant signed and dated 2 July 2015; * Statement of George Boudaher signed and dated 2 July 2015; * Statement of Stephen Rehab signed and dated 2 July 2015. THE LEGISLATIVE FRAMEWORK and THE ISSUE 1. The regulation of the home building industry is dealt with largely by the Home Building Act 1989 (the Act) and the Home Building Regulation 2004 (the Regulations). 10 While there have been some transitional changes to the Act and the Regulations, the Respondent has accepted that the key governing matter of direct relevance to this case is the application of the Respondent's Instrument enacted on 3 July 2013 which prescribes the requirements for the issue of a general building category of work licence. This would also cover an application such as is on foot for to vary an existing licence. 1. Under that Instrument, the Applicant must demonstrate that he has acquired two years full time experience in carrying out the roles duties and responsibilities of a residential builder in a wide range of building construction work. 2. "Experience" means experience gained by the Applicant as : An employee of; or 1. A person otherwise lawfully engaged by, 2. 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: 3. 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 4. Financially remunerated for the Work. 1. The Respondent has identified essentially two problems with what Applicant has put to him on the question of experience. 2. The first is that the Respondent does not accept that the Applicant's experience is relevant industry experience in a wide range of building construction work. 3. Secondly, the Respondent does not accept that the Applicant has been adequately supervised in the carrying on such works by a suitably qualified person. DOES THE APPLICANT HAVE THE REQUIRED RANGE OF EXPERIENCE OVER THE REQUIRED PERIOD OF TIME AND WAS HE APPROPRIATELY SUPERVISED? 1. 15. In the most recent set of materials filed by the Applicant, the Applicant and Mr Boudaher have in two separate statements identified 4 projects on which the Applicant worked as follows: 1. Floss Street Hurlstone Park - 12 February – 18 December 2009 2. Yimbala Street Rydalmere 2 May – 16 October 2013 3. William Street Holroyd 20 September 2013- 10 March 2014 4. Chester Place Ermington; January – (likely) December 2015 1. Mr Boudaher in particular, provided considerable sworn evidence as to the nature of the work the Applicant carried out. The Work 1. The work carried out by the Applicant on the Hurlstone Park project included but was not limited to: * demolition of masonry walls, including removal of existing windows and doors; * retention of existing brickwork; * replacement of timber floors with suspended concrete slabs; * introducing fire rated party walls and stair access; * introducing stair access from footings to roof; * internal walls masonry and timber stud attached to non-load-bearing walls; * structural steel supports and framings; * cement rendering and plasterboard wall walls; * affixing new windows and doors; * first floor ceiling stairwell included; * waterproofing for wet areas and balconies; * new internal fixtures and fittings; * external ground floor car park constructive; * utilising new finishes both internal and external; * connecting all services including water power communications etc; * connection to services; * all external paving fencing of landscaping; * liaising with clients consultants certifies local authorities subcontractors and suppliers. 1. The work carried out by the Applicant on the other three projects included excavation, concreting, carpentry, masonry work, structural steel work, electrical work, plumbing work, scaffolding, roofing and glazing. 2. In addition, the Ermington project involved the construction of a fire rated dividing wall. 3. The Rydalmere project involved the Applicant in work related to plastering, waterproofing, tiling, painting and landscaping and the installation of an underground hydraulic detention tank. 4. The Holroyd project involved the Applicant in work relating to plastering, waterproofing, tiling, painting and landscaping and the installation of an aboveground hydraulic detention tank. The Period of Time Involved 1. Having regard to the timelines indicated above, the work in question (up until the date of the hearing) covered some 28 months with the longest project being the Hurlstone Park project which lasted some 10 months. 2. Thus, the total for these four projects alone exceeded 2 years and the evidence clearly indicates that there were other projects as well which the Applicant worked on but are not reflected in the 28 month total referred to above. Thus, it is clear that in terms purely of the time period involved, the Applicant clearly satisfied the 2 year requirement. The Nature of the Supervision 1. Importantly, none of these four projects were owner builder projects. Indeed I have specifically excluded any projects where an owner-builder permit was involved as one cannot and generally should not be satisfied that there is appropriate supervision where an owner-builder permit is involved: Zada v Director-General, Department of Finance and Services, NSW Fair Trading (2014) NSWCATOD 16 at 32 and Ivanovski v Commissioner of NSW Fair Trading, Department of Finances and Services (2013) NSWADT 274. One such project was the project at Telopea (referred to in the s 58 documents - page 7) which is not relied upon in this decision 2. The Applicant in each of the four identified projects was either an employee of or a person otherwise lawfully engaged by a person who held an appropriate building licence as required by the Instrument. I am satisfied based on all the evidence before me that the work carried out by the Applicant at each of the four identified sites was carried out under the direct supervision of Mr Boudaher. 3. Indeed, in relation to the question of supervision, Mr Boudaher gave an explanation under cross-examination of the way in which he conducted the supervision and indicated that he visited the sites where the Applicant was working every day either at the beginning of the day or the end of the day but more commonly towards the end of the day. Under cross-examination, he also explained in some detail how the Applicant worked on the projects usually from 9-to-5 on Monday to Friday and at times even on a Saturday and when jobs were being run concurrently he would visit both sites to carry out different aspects of the building work. 4. Mr Boudaher was the only witness but he presented well, spoke with authority and gave a clearer explanation both as to the way in which the work was carried out by the Applicant and his supervision. Beyond his written statement he was not asked and did not provide detail of the work that the Applicant undertook. The Applicant did not provide verbal evidence at the hearing. CONCLUSION 1. Having regard to the verbal evidence provided by Mr Boudaher at the hearing and his sworn statement of 2 July 2015 and the sworn statement of the Applicant dated 2 July 2015, I am satisfied that the Applicant meets all the requirements that need to be met for a variation to his licence so as to allow him carry on general building work. DECISION 1. The decision of the Respondent is set aside and substituted with a decision that the Applicant's licence is varied so as to cover the category of general building work. 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: 27 July 2015