Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Poytress v Director General, NSW Fair Trading [2015] NSWCATOD 100 Hearing dates: 3 June 2015 Decision date: 24 September 2015 Jurisdiction: Occupational Division Before: S Montgomery Senior Member Decision: The decision of the respondent to refuse the applicant's application for restoration of his licence is affirmed. Catchwords: ADMINISTRATIVE LAW - administrative review of decision to refuse the applicant's application for renewal of his licence – applicant a director of an externally-administered company - whether applicant took all reasonable steps to avoid external administration – whether the applicant is a fit and proper person to be issued with a licence. Legislation Cited: Home Building Act 1989 Home Building Amendment Act 2014 Home Building Regulation 2004 Home Building Regulation 2014 Cases Cited: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Clarke v Commissioner of Fair Trading, Office of Fair Trading [2004] NSWADT 273 Commissioner of Fair Trading, Office of Finance and Services, NSW Fair Trading v Kassem [2015] NSWCATAP 173 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 Foley v Commissioner of Police [2005] NSWADT 12 Haining v Commissioner of Police, NSW Police Service (1999) NSWADT 6 Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 Mattar v Roads and Maritime Services [2012] NSWADT 274 McBride v Walton (NSW Court of Appeal, unreported, 15 July 1994) Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286). Sobey v Commercial and Private Agents Board (1979) 20 SASR 70 Trilin v Commissioner of Fair Trading [2003] NSWADT 222 Tyson v Director-General, Department of Finance and Services, NSW Fair Trading [2015] NSWCATOD 45 Category: Principal judgment Parties: Stephen Poytress (Applicant) Director General, NSW Fair Trading (Respondent) Representation: Solicitors: Pope & Spinks (Applicant) NSW Fair Trading (Respondent) File Number(s): 1520012 REASONS FOR DECISION 1. This matter relates to an application for review of the decision by a delegate of the Respondent to refuse Mr Poytress application for the restoration of his licence ("the licence") in the category of "general building work" under the Home Building Act 1989 ("the HBA"). 2. The Respondent's delegate refused the restoration of the licence on the basis that Mr Poytress was not a fit and proper person to continue to hold the licence. The refusal was affirmed on an internal review on the following grounds: 1. Clause 39A(1 )(c) of the Home Building Regulation 2004 will not allow the Director-General to renew the applicant's individual contractor licence while the applicant is a director of an externally-administered body corporate (within the meaning of the Corporations Act 2001 of the Commonwealth); and 2. The applicant is not a fit and proper person to continue to hold an individual contractor licence because he chose not to declare his adverse financial and licensing history in the restoration of [the licence] and the application for [Welland Construction NSW Pty LTD (Welland)]. 1. Mr Poytress lodged an application with the Tribunal for external review of the Respondent's decision. Background 1. I understand that the background to this application is not in dispute. However, I will summarise that background as it is relevant to my determination. 2. Mr Poytress was first issued the licence in 2005 and it was renewed on a number of occasions until the Respondent's decision to refuse to restore it in September 2014. 3. At various times Mr Poytress has been a director of several companies. Sitestaff NSW 1. He was a director of Sitestaff NSW Pty Ltd from 25 June 1998 to 27 February 2006. A liquidator was appointed on 8 August 2008. Mr Poytress' evidence is that his resignation was due to disagreements with co-directors as to management and that he had no involvement with the company at the time that the liquidator was appointed. He stated that he was not involved with nor had any knowledge of any issue which might have concerned the building practices of the company or the liquidation. I do not understand the Respondent to have suggested otherwise. Site Construction 1. He was a director of Site Construction NSW Pty Ltd ("Site Construction") from December 2004. Site Construction was issued with a contractor licence in the category of general building work in August 2005. That licence expired in August 2010 and has not been renewed. 2. ASIC received a notification of application to wind up Site Construction in December 2010. That application was subsequently dismissed. In May 2012, Southside Benchtops Pty Ltd lodged an application for the winding up of Site Construction under section 459P of the Corporations Act 2001. 3. Site Construction was placed under liquidation in August 2012, with Mr David Anthony Hurst of Hoskinghurst Pty Ltd as liquidator. 4. Three insurance claims against Site Construction were paid in 2013. The amounts paid totalled $507,000. These amounts have not been recovered from Site Construction which is now deregistered. However, Mr Poytress' evidence was that these claims are the subject of ongoing litigation with respect to guarantees and a cross-claim against an architect. Welland 1. Mr Poytress was the sole director of Welland from the time of its registration in September 2010. He was also one of two shareholders of the company. 2. Welland lodged an application for a company contractor licence in the category of building in July 2012 ("the 2012 Welland application). Mr Poytress signed the application form as the nominated qualified supervisor of Welland. Initially, Mr Poytress failed to sign the relevant part of the application form that contained a declaration that the information contained in or attached to the application was complete and true. He provided that declaration in August 2012 and the licence was issued. 3. In August 2013, the Respondent's delegate issued a Notice of Cancellation to Mr Poytress as director of Welland setting out the grounds why the cancellation of the company licence 250702C was warranted. The delegate concluded that Mr Poytress made a false statement at the time of Welland's application for a company licence. Fair Trading invited Mr Poytress to provide a written response within 10 days. 4. The Respondent didn't receive any submissions on behalf of Welland in response to the Notice of Cancellation and the licence was cancelled on 20 August 2013. Revera 1. Mr Poytress was a director of Revera Facility Services Pty Limited ("Revera") from 3 March 2011 to 4 July 2011. Revera was issued a company contractor licence in the category of building in June 2011. Mr Poytress was the nominated supervisor of Revera from then until 21 September 2011. Revera's licence was surrendered on 29 February 2012 and Revera was placed under external administration on 29 March 2012 and subsequently under liquidation on creditors' voluntary winding up on 10 May 2012. The application for restoration of the licence 1. The licence expired in May 2014. Mr Poytress lodged an application for the restoration of the licence in August 2014. He did not declare any events or occurrences since the date of his last licence application that would adversely affect the restoration of his licence or his eligibility to continue to hold the licence. Issues 1. The issues to be considered by the Tribunal are: 1. Did Mr Poytress take all reasonable steps to avoid the liquidation of Site Construction? 2. Is Mr Poytress a fit and proper person to hold a licence? Applicable Legislation 1. The Tribunal is required to make the correct and preferable decision having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law (Administrative Decisions Review Act 1997, section 63(1)). This generally requires the Tribunal to make a decision on the material before it at the time it makes its decision (see Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409; Mattar v Roads and Maritime Services [2012] NSWADT 274 at [10]; Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286). 2. Mr Poytress lodged an application with the Respondent for the restoration of the licence on 25 August 2014. At that time, the legislation in force was the HBA and the Home Building Regulation 2004 ("the 2004 Regulation"). On 15 January 2015, however, the 2004 Regulation was repealed and replaced by the Home Building Regulation 2014 ("the 2014 Regulation"). Amendments were also made to the HBA by the Home Building Amendment Act 2014 ("the amending Act"). 3. Mr Poytress' application to the Tribunal was lodged on 20 January 2015. That is, five days after the commencement of the HBA amendments and the 2014 Regulation. 4. A threshold issue arises in regard to whether the 2004 Regulation or the 2014 Regulation applies in this case. 5. In Foley v Commissioner of Police [2005] NSWADT 12 at [5], Hennessy DP summarised the relevant principles as follows: At common law, a tribunal conducting a merits review must apply the law in force when it considers the matter, unless the decision involves a consideration of accrued rights and liabilities at an anterior date: Re Smith and Defence Force Retirement and Death Benefits Authority (1978) 1 ALD 374; Re Costello and Secretary, Dept of Transport (1979) 2 ALD 934; Commonwealth of Australia v Esber [1991] FCA 223; (1991) 101 ALR 35. 1. Clause 121(2)(a) of Schedule 4 to the HBA provides that an amendment made by the amending Act does not apply to or in respect of proceedings commenced in a court or tribunal before the commencement of the amendment. As noted above, these proceedings commenced after the amendments made by the amending Act. 2. Senior Member Leal discussed the applicable provisions in in Tyson v Director-General, Department of Finance and Services, NSW Fair Trading [2015] NSWCATOD 45 paragraphs [17] to [20]. She found that "the now repealed Home Building Regulation 2004 continues to apply in these proceedings". I note however, that in that matter Mr Tyson had lodged his application with the Tribunal prior to the commencement of the amendments. 3. Nevertheless, clause 126 of Schedule 4 to the HBA relevantly provides: 126 Issue of licences and certificates An amendment of section 20 or 25 by the amending Act does not apply to an application for a contractor licence or a supervisor or tradesperson certificate made before the commencement of the amendment. 1. For the purposes of clause 126, the "amending Act" means the Home Building Amendment Act 2014. 2. Mr Poytress' application to the Respondent for renewal of the licence was made before the commencement of the amendments. It is clear from clause 126 that the amendments do not apply to section 20. 3. Section 20 of the HBA deals with the issue of contractor licences and is therefore relevant to these proceedings. Prior to 15 January 2015 section 20 provided: 20 Issue of contractor licences (1) The Director-General must refuse an application for a contractor licence if: (a) the Director-General is not satisfied that the applicant is a fit and proper person to hold a contractor licence, or (c) the applicant is disqualified by this Act or the regulations from holding a contractor licence. Note. Under section 6 of the applied Act (within the meaning of section 19) an application for the grant of a contractor licence may be made by any individual aged 18 years or more, by any partnership or other association whose members are all individuals aged 18 years or more or by any corporation. (1A) 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. (6) Without limiting this section, the Director-General may refuse an application for a contractor licence if the Director-General is of the opinion that it is in the public interest to do so on any of the following grounds: (a) an employee or proposed employee of the applicant is disqualified from holding a contractor licence, has had an application for an authority refused on a ground relating to his or her character, honesty or integrity or has had an authority cancelled or suspended on any disciplinary ground, (b) there are reasonable grounds to believe that the application has been made with the intention of avoiding disclosure of any relevant past misconduct of the applicant or a close associate of the applicant, (c) the Director-General considers that a close associate of the applicant who would not be a fit and proper person to hold a contractor licence exercises a significant influence over the applicant or the operation and management of the applicant's business. 1. In relation to subsection 20(1)(c), the 2004 Regulation prescribed certain criteria to be satisfied before the issue of a licence. Clause 25 of the 2004 Regulation relevantly required 25 General requirements for obtaining certain authorities under Act (1) Before an authority (other than an owner-builder permit) is issued, the Director-General must be satisfied that: (a) each relevant person in relation to the application for an authority: (i) is not disqualified from holding the authority or an authority of the kind applied for, or from being a member of a partnership or a director of a corporation that is the holder of the authority or an authority of the kind applied for, and has not been so disqualified within 3 years before the date of the application, and (xii) except in relation to an application for a tradesperson certificate - is not an undischarged bankrupt and is not a director of, or a person concerned in the management of, an externally-administered body corporate (within the meaning of the Corporations Act 2001 of the Commonwealth) except in a case of a voluntary winding up of the body corporate, and (xiii) except in relation to an application for a tradesperson certificate—within the period of 3 years before the date of the application, was not an undischarged bankrupt and was not a director of, or a person concerned in the management of, an externally-administered body corporate (within the meaning of the Corporations Act 2001 of the Commonwealth) except in a case of a voluntary winding up of the body corporate, and (2) For the purpose of subclause (1)(a), each of the following persons is a relevant person in relation to an application for an authority: (a) the applicant, Note. Additional requirements for obtaining specific authorities are set out in this Division. 1. Sub-clauses 26(2)(b) and (3) of the 2004 Regulation qualify clauses 25(1)(a)(xii) and (xiii). They provide: 26 Additional requirements for obtaining contractor licences (2) Despite clause 25 (1) (a) (xii), the Director-General may issue a contractor licence if: (b) the Director-General is of the opinion that: (i) there is no evident risk to the public that the applicant will be unable to complete building contracts entered into in the future for the doing of residential building work or specialist work of that kind, or both, and (ii) the relevant person concerned took all reasonable steps to avoid the bankruptcy, liquidation or appointment of a controller or administrator, and (3) Despite clause 25 (1) (a) (xiii), the Director-General may issue a contractor licence if the Director-General is of the opinion that: (a) there is no evident risk to the public that the applicant will be unable to complete building contracts entered into in the future for the doing of residential building work or specialist work of that kind, or both, and (b) the relevant person concerned took all reasonable steps to avoid the bankruptcy, liquidation or appointment of a controller or administrator. (3A) A contractor licence issued under subclause (3) may be issued subject to any of the following conditions: (a) that the licence authorises its holder to do residential building work or specialist work of the kind prescribed by clause 46 (clause 46 (1) (a) and (b) excepted) but not of any other kind, (b) that the holder of the licence not do work: (i) if the contract price exceeds $20,000 (inclusive of GST), or (ii) if the contract price is not known—where the reasonable cost of the labour and materials involved in the work exceeds $20,000 (inclusive of GST). 1. That is, the Respondent may issue a contractor licence if of the opinion that there is no evident risk that Mr Poytress will be unable to complete building contracts entered into in the future, and that he took all reasonable steps to avoid the Site Construction liquidation. 2. In my view, it is clear that the 2004 Regulation contained provisions that were relevant to section 20 of the HBA. It would not be consistent with the provision in clause 126 of Schedule 4 to the HBA, which preserved section 20 of the HBA, if the provisions of the 2004 Regulation that prescribed certain criteria to be satisfied before the issue of a licence pursuant to section 20 of the HBA could not also be applied. 3. On this basis, the applicable provisions are those of the HBA and the 2004 Regulation that were in place when Mr Poytress lodged his application for the restoration of the licence on 25 August 2014. 4. However, if I am wrong in this regard, I note that the relevant provisions that were contained in the 2004 Regulation are now incorporated into the HBA. 5. As the Appeal panel in Commissioner of Fair Trading, Office of Finance and Services, NSW Fair Trading v Kassem [2015] NSWCATAP 173 noted at paragraph [28]: One of the changes to the statutory licensing scheme made by the Home Building Amendment Act 2014, was to transfer from the regulations to the Act, the provisions dealing with the grounds on which a person was disqualified from applying for or holding a contractor licence, supervisor certificate and trades person certificate (Explanatory Notes, Home Building Amendment Bill 2014 – page 4.) The relevant regulations were regulations 26 and 28 of the 2004 Regulation. That Regulation was repealed and the Home Building Act amended by the addition of ss 33C and 33D which were in almost identical terms to regulations 26 and 28. Sections 33C and 33D are amendments made by the Amending Act and they impose a requirement that was a requirement of the regulations (regulations 26 and 28) before the amendment commenced. As a result the amendments (ss 33C and 33D) extend to a licence application (which is "other matter") which was the subject of the requirement under the regulations immediately before the commencement of the amendment. Thus item 143 makes provision for the application of qualification requirements to all pre-amendment licence applications. 1. Additional relevant provisions are found in section 33B which was also inserted into the HBA by the amending Act. 2. Consequently, the same issues need to be considered in this matter regardless of whether they arise as a result of the application of the 2004 Regulation or the amending Act. Did Mr Poytress take all reasonable steps to avoid the liquidation of Site Construction? 1. In examining the question of whether a licence holder took 'reasonable steps' to avoid a bankruptcy or insolvency has been considered in a number of decisions of this Tribunal and the former Administrative Decisions Tribunal. 2. In Clarke v Commissioner of Fair Trading, Office of Fair Trading [2004] NSWADT 273 the Tribunal's President referred to a number of earlier decisions under comparable provisions in the Property, Stock and Business Agents 2002 and concluded at paragraphs [9] - [10]: 9 The Tribunal has already dealt with three applications for review arising under the new provisions: McDonald v Commissioner for Fair Trading [2004] NSWADT 124, Smith v Commissioner for Fair Trading [2004] NSWADT 182 and Davidson v Commissioner for Fair Trading [2004] NSWADT 200. 10 It has expressed the following views as to the approach to be taken in examining the question of whether the licence holder took 'reasonable steps' to avoid the bankruptcy or insolvency: (i) A general inquiry into the wisdom or otherwise of the original financial dealings that ultimately ended in bankruptcy or insolvency is not contemplated by the Act. The point at which the inquiry commences is when the applicant was 'faced with the possibility' of bankruptcy or insolvency (Davidson at [20]) or was 'aware' or 'should have been aware' (McDonald at [21]) of that possibility. The focus is the steps taken to avoid the relevant event (see Smith at [17]) – in cases of the present kind, administration, and later liquidation. (ii) Subject to (i), in assessing reasonableness the Tribunal must examine all the relevant facts and circumstances. (McDonald at [25]), (iii) The steps taken by the applicant must be objectively reasonable in the sense that they would be those taken by a 'reasonable person endowed with the knowledge and experience of the [applicant]'. (McDonald at [26-27]) 11 To these should probably be added a fourth, though it is obvious enough from the provision: (iv) The person under notice has the task of satisfying the Commissioner that he or she took all reasonable steps to avoid the insolvency. 1. In Clarke, the President stated that "In this case the main difficulty has to do with what the Tribunal has described as principle (iv) – the need for the licence-holder to satisfy the Commissioner that he or she took all reasonable steps to avoid the insolvency. 2. In the present case it is for Mr Poytress to provide information relating to the liquidation of Site Construction. He relies on his Affidavit dated 2 June 2015 and his oral evidence given before the Tribunal. He attributed Site Construction's "serious financial difficulties" to "contractual disputes" and "protracted disputes with several clients". He stated that "the company was forced into liquidation", "as a result of either difficulties in pursuing the matters in court" or "due to errors made by Wilkinson Building & Construction Lawyers" ("Wilkinson"). He claimed to have paid the sum of $173,201.43 in legal costs and provided invoices issued by Wilkinson in support of that claim. 3. Mr Poytress has not provided any documents which analysed Site Construction's financial affairs before the liquidator was appointed. 4. His evidence is that he was a director of Site Construction from 24 December 2004 until the appointment of a liquidator on 31 August 2012. He stated that the company was owed substantial sums of money by several clients who had refused to make payment due under building contracts. The company encountered serious financial difficulties as a result of protracted disputes with those clients. The disputes were the subject of ongoing litigation and the company incurred legal costs amounting to over $173,000. 5. He further stated that the company was forced into liquidation as a result of difficulties in pursuing the matters in court due to errors made by the company's lawyers. 6. Mr Poytress asserted that he took advice at all times and that he acted in a diligent and prudent manner by engaging solicitors to represent the company. He stated that the difficulties encountered by Site Construction where in the nature of contractual disputes and did not detract from his capacities as a builder and/or manager. The legal dispute lasted for two years and resulted in the liquidation of the company. 7. Mr Poytress further stated that the liquidator did not believe that taking legal action against him had sufficient merit and the liquidator was concerned that he could suffer a costs order against him. 8. He did not provide any independent evidence to show the steps that he had taken to avoid the liquidation of Site Constructions. 9. The Respondent argues that Mr Poytress has not provided sufficient documents to enable the Tribunal to have an informed assessment of the factors which need to be considered whether he had taken reasonable steps to avoid Site Construction's liquidation. Accordingly, it submits that the Tribunal will have no basis to be satisfied that Mr Poytress took all reasonable steps to avoid the liquidation of Site Constructions. 10. The Respondent obtained documents relating to the liquidation from the Liquidator, HoskingHurst Pty Limited. That material contains a letter dated 27 February 2015 from the Liquidator, D A Hurst, to Creditors ("the Liquidator's letter") that shows that no funds were realised in the liquidation and there were no company assets realisable. Insolvent trading claims were issued to Mr Poytress for total outstanding debts incurred by Site Construction up to the date of liquidation, but the claims were not pursued as there was no funding. There were no funds available for distribution to the Company's creditors nor were there any avenues identified for the recovery of funds for the benefit of the Company's creditors. 11. Ms Robosa submitted that the Liquidator's findings of insolvent trading lend support to the conclusion that instead of taking steps to avoid liquidation, Mr Poytress continued to trade to the detriment of the creditors who were unable to recover any money from the company. She submits that the Tribunal should give no weight to Mr Poytress' uncorroborated evidence. 12. Ms Robosa further submitted that the lack of documentation and Mr Poytress' failure to maintain records cast doubt as to the financial status of Site Construction before the liquidator was appointed. 13. Each of the parties has pointed to the Liquidator's letter in support of its position. The Liquidator wrote: I advise that no funds were realised in the Liquidation and our investigations indicate that there are no Company assets realisable. I issued insolvent trading claims to the Company's director and former director for total outstanding debts incurred by the Company up to the date of Liquidation. The claims were disputed by the abovementioned parties and as a result I referred the claims to solicitors to pursue same. My solicitors took steps to pursue the claim and further investigate the merits of commencing legal action against the current and former director. I received advice from my solicitors that they did not consider it commercially viable to pursue the insolvent trading claims as: - I was unfunded in the Liquidation; - No creditor was prepared / able to provide funding; - There was the possibility of an adverse costs Order being made against the Liquidator; and - It was not possible to establish that the current and former director would have the capacity to satisfy any judgement obtained against them. Accordingly there were no funds available for distribution to the Company's creditors nor were there any avenues identified for the recovery of funds for the benefit of the Company's creditors. 1. As noted above, the Respondent submitted that the Liquidator's findings of insolvent trading lend support to the conclusion that instead of taking steps to avoid liquidation, Mr Poytress continued to trade to the detriment of the creditors who were unable to recover any money from the company. Mr Poytress denied that he had traded after he became aware of the company's serious financial situation. In contrast to the Respondent's construction of the Liquidator's letter, Mr Poytress argued that the liquidator did not believe that taking legal action against him had sufficient merit and the liquidator was concerned that he could suffer a costs order against him. 2. There appears to be some merit in each of those arguments. It is clear that the Liquidator had identified insolvent trading but it is also clear that the claim was disputed. The Liquidator had obtained legal advice that there was the possibility of an adverse costs order being made. That suggests that the Liquidator's solicitors had concerns about the strength of the case against Mr Poytress. 3. While there is no independent evidence to support Mr Poytress' assertion that he took all reasonable steps to avoid the liquidation, there can be no doubt that he had obtained legal advice and took legal action to pursue debts that he regarded as owed to Site Constructions. I note that Mr Poytress places much of the blame at the feet of his legal advisors. In hindsight the approach that was taken may not have been the best one but in my view Mr Poytress was entitled to rely on the professional advice that he was given. There is no suggestion that he did not follow that advice or that he should have obtained alternative advice. I accept that once he became aware of the company's financial difficulties and he had obtained legal advice and taken legal action to pursue the company's debts, any other steps that he might have taken would not have avoided the external administration. The Respondent has not identified any other steps that he could have taken to achieve that outcome. 4. In the circumstances, I am satisfied that he took all reasonable steps to avoid the Site Constructions liquidation. Is Mr Poytress a fit and proper person to hold a licence? 1. The question of Mr Poytress' fitness and propriety is more complex. 2. He signed company licence application forms on behalf of Sitestaff, Site Constructions, Revera and Welland. In each case, the application form that he signed included a declaration that the information contained in or attached to the application is complete and true. Each of the application forms required information from Mr Poytress, as a director of the applicant company, as to (i) whether any company, of which he was a director, had any licence cancelled or suspended; (ii) whether he had been a director of a company which was wound up, placed in liquidation or subject of a winding up order; and (iii) whether he had been a director of a company that had any insurance claim paid against contracts entered into for residential work. 3. Mr Poytress signed Revera's licence application form on 4 May 2011 and answered "No" to the questions regarding: (i) whether any company, of which he was a director, had any licence cancelled. (ii) whether he has been a director of a company which was subject of a winding up order (iii) whether he has been a director of a company that had any insurance claim paid against contracts entered into for residential work 1. The Respondent submitted that Mr Poytress' responses were incorrect as (i) Sitestaff's licence was cancelled on 28 July 2006 for failure to appoint a nominated supervisor; (ii) Sitestaff was subject of a court winding up order on 8 August 2006; and (iii) there was an insurance claim paid against Sitestaff. 2. Mr Poytress signed a company licence application form for Welland and made a declaration that the statements made in the application were true and correct. Again, Mr Poytress answered "NO" to the relevant questions. As with Revera's application, the Respondent submitted that Mr Poytress' responses were incorrect. 3. In response to the question concerning whether he had been "a director of any other entity that is or was licensed under the Home Building Act 1989" , the Respondent submitted that Mr Poytress' responses were incorrect as he had been a director of Sitestaff, Site Constructions, and Revera which had each held a licence under the HBA. 4. In August 2014, Mr Poytress applied for the restoration of his licence. He declared that there had been no events or occurrences since the date of his last application that would adversely affect the renewal of his licence and that there have been no events or occurrences that would adversely affect his eligibility to hold his licence. The form that Mr Poytress signed specified that events and occurrences that may affect the renewal of his licence included: - Orders of a court or tribunal; - Insurance claims in regard to work performed under this licence; - Criminal offences recorded against individuals, partners or directors; - Bankruptcy of individuals, partners, directors OR companies placed into liquidation / receivership / administration. 1. Again, Mr Poytress did not disclose the matters relating to Sitestaff, Site Construction, and Revera in the application. 2. The Respondent asserts that Mr Poytress was well aware of, or would have known, or ought to have known the matters which are required to be disclosed in each application; his obligation to provide complete and true information; that it's an offence to make a statement or supply information which is false and misleading; and that the matters required to be disclosed (including information regarding the liquidation of the companies which were associated to him) would adversely affect his eligibility to hold a licence. 3. The Respondent further asserts that Mr Poytress deliberately provided incorrect information, and/or withheld relevant information and that he has shown total disregard of the requirements for providing complete and true information to enable an informed assessment of licence applications. 4. The Respondent submitted that it is implausible that Mr Poytress would have signed the application forms without checking the details provided. He would have known about the insurance claims and company liquidations and he should have understood that he was required to disclose those events and occurrences. 5. The Respondent further submitted that Mr Poytress' conduct showed disregard of the requirements of the HBA and that he has demonstrated no remorse or shown any insight into his responsibility for providing accurate information. His approach has been to blame others. Accordingly, it is submitted that there is no basis for the Tribunal to conclude that Mr Poytress has relevantly reformed and would be a fit and proper person to hold a licence. 6. Mr Poytress offered the following explanation: (i) it was Gordon Xue, and not himself, who prepared the 2012 Welland application form; (ii) at the time of the cancellation of Welland's licence, Mr Xue was no longer involved in the business; (iii) Mr Xue did not pass on to Mr Poytress the fact that the licence had been cancelled; (iv) Mr Poytress contacted the Respondent when he became aware of the cancellation, and was told that when his licence was to be renewed he may have to explain about his business history; (v) he was expecting the request for information from the Respondent; and (vi) as he had not received any request, he assumed that he I did not have to restate what the Respondent already knew. 1. Mr Poytress admitted that at times he did not submit the correct information to the Respondent. His evidence was that, in relation to at least two of the applications, he did not make the application and that others completed the forms on his behalf. He stated that the other persons had completed the licence application forms and that he had signed them at a later time. 2. He said that he signed a lot of documents in relation to the setting up of a new company and that he understood that the information sought in the licence form concerned whether or not he was bankrupt. He made the declaration while under that misunderstanding. 3. He agreed that as a director he should have read the licence application form. He said that this failure was due to stupidity and not dishonesty. He had assumed that the information he had provided in a phone call to an officer of the Respondent was sufficient. 4. Mr Poytress' explanation is that he is partly dyslexic and he finds it difficult to deal with forms, particularly with blocks of text, and that disability resulted in incomplete information being provided. No medical evidence was submitted in support of this explanation. He relies on his own evidence that he has a poor reading ability (less than that of an eleven year old). He relies on others to read on his behalf and he dictates documents that he prepares. He has difficulty in reading large blocks of text. He holds a Masters' degree but he gave evidence that he dictated the assignments necessary to obtain the qualification. He stated that he has no difficulty in reading building plans and diagrams. 5. Mr Pope submitted on Mr Poytress' behalf that no issue of a lack of honesty or failure of integrity actually arises from Mr Poytress' conduct. There was no attempt to deceive or withhold information from the Respondent. Rather, Mr Poytress' omissions were due to factors subjective to his own experience with the written word. 6. Mr Poytress stated that he now understands that it is incumbent upon him to ensure that in the future all applications made for a builders licence will include a full description of those relevant or material facts which were omitted from his applications in the past. He will seek legal assistance in regard to future applications. Fitness and Propriety 1. The issue of fitness and propriety has been considered in numerous matters before this Tribunal. It is well established that the meaning of "fit and proper" is dependent on the nature and purpose of the activities that the person will undertake: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380 where Chief Justice Mason said that: "The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration." 1. In Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 the High Court discussed the meaning of the term `fit and proper' (at 156-7): "The expression `fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. `Fit' (or `idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances." 1. In Sobey v Commercial and Private Agents Board (1979) 20 SASR 70 Walters J said: "In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails." 1. The nature of the role that a person wishes to undertake in a regulated industry impacts on an assessment of fitness and propriety. In Haining v Commissioner of Police, NSW Police Service (1999) NSWADT 6 at [41] the President of this Tribunal made the following comments on the issue, in the context of the security industry: `Whether a person is `fit and proper' to hold a licence in a regulated industry will be affected by general considerations relating to the character of the person, special considerations that take account of the nature of the industry in issue and the public policy objective leading the legislature to regulate the industry.' 1. In McBride v Walton (NSW Court of Appeal, unreported, 15 July 1994), the Court said that where there is evidence of misconduct, there should be consideration of any explanation for that misconduct, its seriousness to the particular activity, the motivation of the person, whether the misconduct is an isolated incident, the person's underlying qualities of character, and the person's conduct since the incident and whether this demonstrates recognition of the misconduct and subsequent reform. The question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. 2. The issue of whether a person is fit and proper due to past conduct is a matter of judgement. In considering that issue the Tribunal is required to take into account the nature and seriousness of the original conduct, any events relevant to an assessment of the Applicant's fitness which have occurred since then, the candour with which the Applicant has approached the issue of past conduct, the Applicant's explanation of the conduct, the impact of the effluxion of time, and the Applicant's present circumstances and reputation. For further discussion see Trilin v Commissioner of Fair Trading [2003] NSWADT 222 from paragraph [44] in the context of the Motor Dealers Act 1974. In my view the comments are equally applicable in the context of the HBA 3. In the present matter Mr Poytress has stated that there was no dishonesty involved his failure to provide the relevant information in the licence application forms. I can accept that that is correct. However, as was noted by the High Court in Hughes and Vale Pty Ltd v New South Wales (No. 2), any consideration of a person's fitness involves consideration of more than honesty and each case must depend upon its own circumstances. 4. Whether a person is a fit and proper person involves a value judgement to be made in the context of the particular activity to be licensed. 5. In my view, in the context of licence applications under the HBA, Mr Poytress had an obligation to ensure that the information that he provided on the licence application forms was correct. It is not sufficient to make assumptions about whether or not information that had been provided in a phone conversation was sufficient. It is not sufficient to rely on the fact that other people had completed the forms for his signature. 6. There is a duty on all directors to make themselves aware of their company's details. As a director of the various companies Mr Poytress had that obligation. 7. I note Mr Poytress' explanation of the effect of his reading disability and his difficulty in reading and understanding forms. I accept that explanation. However, he had an obligation to take whatever measure were necessary to ensure that he was able to meet his duties as a director, and as a licensee, notwithstanding his disability. He should not have accepted those roles if he was unable to meet the obligations imposed on the holder of those positions. 8. I agree with the Respondent that Mr Poytress would have known about the insurance claims and company liquidations and he should have understood that he was required to disclose those events and occurrences. 9. In my view his explanation for his incorrect answers on the various licence application forms suggests that he may not have the necessary knowledge and ability to be regarded as a fit and proper person to hold a licence. 10. I accept that Mr Poytress now has the benefit of legal advice and is now more aware of his obligations. However I am not satisfied that he has a clear understanding of what is required in the future should he wish to be a licensee. I am also concerned about the candour with which he has dealt with these issues. He continued to point to the fact that others had completed the application forms on his behalf. I do not think he has genuinely acknowledged the fact that it was his responsibility to ensure that the information was correct. He is clearly an intelligent, well educated man. While he has a disability, he gave evidence that he has been able to read reports and some forms. It seems to me that he simply did not provide the necessary attention to detail in completing the application forms and this suggests that he lacked understanding of the importance of ensuring that the information he was providing was accurate. 11. While I regard these failures as serious, I do not think that Mr Poytress had any ulterior motives in withholding information or that there is any concern in regard to his underlying qualities of character. Further, there is no suggestion that there is any issue in relation to his ability as a builder. However, in my view the proper regulation of the home building industry depends on more than good building skills. It requires the ability of licensees to not only comply with the legislative requirements but for them to also understand the importance of those requirements. Conclusion 1. On the evidence before me I am not satisfied that Mr Poytress is a disqualified person for the purposes of the HBA. However, for the rreasons I have discussed, I am not satisfied that he is a fit and proper person to hold the licence that he is seeking. 2. I do not consider that this is an insurmountable problem. However, I do not consider that it will be resolved merely by the effluxion of time. In my view, Mr Poytress would need to undertake further training in regard to the requirements of the HBA before he should be permitted to again hold a licence. 3. In the circumstances, it is my view that the determination to refuse restoration of the licence is the correct and preferable one. It should therefore be affirmed. Order The decision under review is affirmed. 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: 24 September 2015