Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Trist v Commissioner for Fair Trading, Office of Finance and Services [2016] NSWCATOD 131 Hearing dates: 8 July 2016 Date of orders: 25 October 2016 Decision date: 25 October 2016 Jurisdiction: Occupational Division Before: A Scahill, Senior Member Decision: (1) The decision of the Respondent to refuse to grant the applicant a building contractor licence is set aside. (2) In substitution for that decision the following decision is made: The applicant is granted a building contractor licence. Catchwords: MERITS REVIEW - whether decision to refuse Applicant's application for a contractor's licence in the category of "general building work is correct and preferable decision - whether Applicant has a minimum of two years relevant industry experience in a wide range of building construction work. Legislation Cited: Home Building Act 1989 Home Building Regulation 2014 Civil and Administrative Tribunal Act 2013 Cases Cited: Abdul Rahman v the Department of Finance and Services [2014] NSWCATOD 96 Grewal v Commissioner of Fair Trading [2014] NSWCATOD 101 Kocoski v Department of Services, Technology and Administration [2011] NSW ADT 135. Locking v Department of Finance and Services [2013] NSWADT 239 Ozcelik v Commissioner for Fair Trading [2014] NSWCATOD 100 Shoobridge v Commissioner of Fair Trading [2015] NSWCATOD 42 Sollazzo v Commissioner of Fair Trading [2015] NSWCATOD 20 Tange v NSW Fair Trading [2013] NSWADT 201 Thukral v Commissioner for Fair trading [2006] NSWADT 356 Tomoski Developments Pty Ltd v Commissioner for Fair Trading [2005] NSWADT 263 Category: Principal judgment Parties: Charles Trist (Applicant) Commissioner for Fair Trading, Office of Finance and Services (Respondent) Representation: Solicitors: Kreisson (Applicant) Commissioner for Fair Trading, Office of Finance and Services (Respondent) File Number(s): 1620095 Reasons for decision Introduction 1. Mr Trist has applied for the Tribunal to review a decision to refuse his application for a contractor's licence in the category of "general building work." The Commissioner of Fair Trading refused that application because the Commissioner was not satisfied that Mr Trist had demonstrated that he has a minimum of two years relevant industry experience in a wide range of building construction work. Background 1. On 23 October 2015 the Applicant lodged an application for a variation to his current plumbing and gas fitting licence in the category of general building work. In support of his application, the Applicant submitted: * A copy of a Certificate IV in Building and Construction dated 8 October 2013 and a Diploma in Building and Construction dated 29 April 2013 in the name of Charlie Trist. * 2 Referee's Statements of building work from Anthony Millar, Licensed builder dated 20 October 2015. * A referee's statement of Craig Player dated 1 September 2013 * A referee's statement of Philip Merrick dated 5 December 2013. 1. On 23 November 2015, the Respondent refused Mr Trist's application on the basis that he possessed neither the qualifications nor the experience required under the relevant Instrument. Mr Trist provided an amended certificate in the name of Charles Trist showing that he had the relevant qualifications as the previous certificate had been issued in the name of Charlie Trist. 2. On 11 December 2015 the Applicant requested an internal review of this decision. On 21 March 2016, the Respondent advised the Applicant that the internal review affirmed the original refusal of his application. The Respondent provided him with a Statement of Reasons outlining that the refusal was on the basis that Mr Trist did not 24 months experience in a wide range of building. 3. Mr Trist then lodged an application to review this decision in the Tribunal. The hearing 1. The hearing of the Application was held on 8 July 2016. At the hearing Mr Trist and Mr Millar gave evidence and were cross examined. The Respondent relied upon the contents of the section 58 documents and written submissions. 2. After the hearing the Tribunal set a timetable for the filing of further submissions from the Applicant and the Respondent. Documents before the Tribunal 1. The Tribunal had the following documents before it: * Mr Trist's application for review in the Tribunal; * The Respondent's section 58 documents received on 4 May 2016; * The Applicant's folder of documents received at the Tribunal on 17 May 2016; * The Respondent's submission to the Tribunal; * The Applicant's submission to the Tribunal dated 27 June 2016; * The Applicant's further submissions to the Tribunal dated 21 July; 2016 * The Respondents further submissions in reply dated 8 August 2016; * Applicant's submissions in reply to further submissions of the Respondent dated 11 August 2016. Legislative Scheme 1. Section 20(2) of the Home Building Act 1989 (the Act) provides that the regulations may fix or provide for the Respondent to determine standards or other requirements that must be met before any contractor licence is issued or before a contractor licence of a particular kind is issued. 2. Section 20 (3) (a) of the Act provides that the Secretary must refuse an application for a contractor licence if the Secretary is not satisfied that any such requirement would be met were the contractor licence to be issued, or 3. Section 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. The effect of this is that the Tribunal must apply the terms of the relevant Instrument. 4. Section 25 of the Act provides that the Secretary must refuse an application for a supervisor or tradesperson certificate if: (a) the Secretary is not satisfied that the Applicant is a fit and proper person to hold such a certificate, or (a1) the Secretary is not satisfied as to the matters of which the Secretary is required to be satisfied by sections 33B and 33D, 1. Section 33C sets out additional requirements for obtaining contractor licences (1) A contractor licence must not be issued unless the Secretary is satisfied that: (a) the Applicant has, or proposes to have, such numbers of nominated supervisors for the contractor licence as the Secretary considers are needed to ensure that all work for which the contractor licence is required will be done or supervised by qualified individuals, and (b) the Applicant, if also applying for an endorsement of the contractor licence to show that it is the equivalent of a supervisor certificate: (i) satisfies the requirements of section 33D for the issue of a supervisor certificate to the Applicant, and (ii) is not disqualified from holding a supervisor certificate or a supervisor certificate of a particular kind, and (iii) is not the holder of a supervisor certificate that is suspended. 1. Section 33D sets out additional requirements for obtaining supervisor and tradesperson certificates (1) A supervisor or tradesperson certificate must not be issued unless the Secretary is satisfied that the Applicant: (a) has such qualifications or has passed such examinations or practical tests, or both, as the Secretary 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 Secretary 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. 1. The 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 under section 33D are set out in an Instrument effective 22nd April 2016. This postdates the Instrument applying at the time of the Internal Review decision made about Mr Trist. That earlier Instrument was dated 5 January 2015. There is no material difference between the 2 Instruments for the purpose of this matter. 2. The definition of experience set out in the Instrument which commenced on 5 January 2015 (on foot at the time of Mr Trist's application) is as follows: "Applicants must show at least 2 years relevant industry experience in a wide range of building construction work where the majority of the experience was obtained within 10 years of the date on which the application is made. "Experience" means experience gained by the Applicant as: a) an employee of, or b) a holder of a supervisor certificate and as a nominated supervisor for the contractor licence held by, or c) a holder of an endorsed contractor licence contracted to, or d) a holder of a supervisor certificate in the capacity of a nominated supervisor for a contractor licence held by an individual, partnership or corporation contracted to, 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 the Applicant, during the relevant period, 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 remunerated with money in accordance with law for the Work which the Applicant carried out. The Reasons for the Respondent's Internal review decision 21 March 2016 1. The internal review decision affirmed the decision that Mr Trist did not have the necessary experience. 2. The Reviewer stated that the referee's statements from Anthony Millar, Craig Player and Philip Merrick were not acceptable. Mr Millar referred to maintenance, refurbishment and minor renovation work and Mr Player's and Mr Merrick's references were for work carried out on commercial premises. 3. The Reviewer also noted that Mr Trist works as a senior maintenance officer with the Sydney Harbour Federation Trust and that any work carried out does not require council approval, or home warranty insurance coverage. In addition the work was predominantly maintenance work, with no major construction projects, certainly no new house builds or extensive additions. This all indicated to the reviewer that the experience did not meet the current requirement of a wide range of residential construction work. 4. The Reviewer also noted that the Instrument excluded commercial or industrial building work as acceptable building experience. The experience claimed by Mr Trist in the renovation and fit out of commercial premises could not be considered relevant industry experience in a wide range of building construction work. Further Mr Trist was the owner of the premises and as such would not be a subcontractor of the builder. Rather the builder would have been working for Mr Trist. 5. The Reviewer referred to Mr Trist's claim that the three years of experience accepted by the Department in 2005 should now be seen as acceptable experience. The Reviewer noted that the experience requirements had altered many times over the past 10 years. While Mr Trist had been active in the building industry for 35 years, his experience had not been in construction of a dwelling, or even major renovations or additions. 6. The Reviewer stated that Mr Trist's work as a plumber and more recently as a senior maintenance officer with the Trust had been working with a majority of projects which had been for two or three months only. This confirmed to the Reviewer that Mr Trist did not have the relevant experience of being involved in the construction process from beginning to end. Mr Trist had not been involved in a residential project that would give him the experience or understanding of the construction of a dwelling from site set out to final handover to the client. The Applicant's Case 1. Mr Trist and Mr Millar gave evidence before the Tribunal. Mr Trist's application to the Respondent attached referee statements from his current supervisor, Mr Millar and previous supervisors Mr Philip Merrick dated 5 December 2013 and Mr Craig Player dated 1 September 2013. Referee statement of Mr Philip Merrick dated 5 December 2013 1. Mr Merrick is a licensed builder. He provided a referee statement dated 5 December 2013 and attached a referee statement in relation to 2 building sites. Building site one was at shop 1, 1431 Botany Road Botany New South Wales. Mr Merrick had been the builder in control at the building site. He stated that Mr Trist had worked on the site from 1 July 2003 to 23 January 2004 - a period of six months. The work was additions/alterations. Mr Merrick stated that it was an extensive renovation and fit out of an Italian restaurant. Mr Trist's roles and responsibilities at the site had been applying codes and standards, dealing with contractors, interpreting plans, planning project works, applying structural principles, managing WHS. 2. Building site two had been shop at 1, 1433 Botany Road, Botany. Mr Merrick had been the licensed builder in control at the building site. Mr Trist had been on the site from 2 January 2004 to 1 June 2004 – a period of 5 months. The work was additions and alterations. The work was extensive renovation and fit out of takeaway food bar. Mr Trist's roles and responsibilities had been applying codes and standards, dealing with other parties, reading specifications, planning project works, setting out, structural principals, problem solving, managing WHS, following legal requirements. Referee statement of Mr Craig Player 5 December 2013 1. Mr Player is a licensed builder. In his referee's statement form of 5 December 2013 he set out the following. 2. Mr Player had supervised Mr Trist's work at 1433 Botany Road Botany under a development application. He had been the builder in control at the building site. Mr Trist had worked for him from 20 June 2006 to 20 November 2006 doing additions and alterations. The work was a third storey addition to a building consisting of a new concrete slab, second floor, third storey brick work and new timber roof and metal roofing. Mr Trist's roles had been as leading hand, supervising, contractor coordinating, roof and framing carpentry, concreting, bricklaying, site surveying and internal fit out. Evidence of Mr Trist 1. Mr Trist relied upon the references and statements provided by Mr Millar, Mr Merrick and Mr Player. Mr Trist also noted that in 2005 he had applied for a builder's licence at which time the department had determined that he had three years' experience. At that time in 2005 it was necessary to show 10 years industry experience. Mr Trist considered that this acceptance of three years' experience should be considered in his current application. Evidence of Mr Anthony Millar holder of builder licence and qualified supervisor certificate. 1. Mr Millar provided a referee statement form dated 3 December 2015. The form stated that Mr Millar is a licensed builder. Both Mr Millar and Mr Trist were employees of the Sydney Harbour Federation Trust. Attached to Mr Millar's statement of 3 December 2015 were 6 "Applicant's on site Building Experience" forms dated 20 October 2015, covering the period 18 November 2013 to 20 October 2015. There was a seventh form dated 3 December 2015, covering the period 21 October 2015 to 3 December 2015. These forms set out a description of the work done by Mr Trist under Mr Millar's supervision. The contents of these 7 forms are set out below. Form at p23, s 58 docs * Building site 1 - 4 Imperial Avenue Mosman from 18 November 2013 to 18 January 2014 – 2 months. The work was undertaken for two months and consisted of additions/alterations to an existing dwelling being internal/external renovation. Mr Millar listed Mr Trist's roles and responsibilities as being leading hand, removal of load bearing walls lintel and brickwork replacement, trades management, waterproofing, gyprock replacement. * Building site 2 - 1 St Barbara's Avenue Manly, North Head from 19 January 2014 to 19 April 2014 – 3 months. It consisted of additions/alterations to an existing dwelling being internal/external alterations. Mr Trist's roles and responsibilities had been as leading hand, planning, coordinating trades, bricklaying/repointing, lintel replacement, window replacement/repairs; glazing, door replacement concreting, sandstone block laying. Form at p24 s 58 docs * Building site 1 - 3 St Barbara's Avenue Manly, North Head, from 20 April 2014 to 20 July 2014 – 3 months' work. This consisted of additions/alterations to an existing dwelling internal/external alterations. Mr Trist's role was as leading hand, planning coordinating, implementing, bricklaying, lintel replacement, rendering, tile laying, concreting, bitumen replacement – plumbing, decking, floor replacement. * Building site 2 - 7 St Barbara's Avenue Manly, North Head, 21 July 2014 to 21 September 2014 – 2 months' work. Additions/alterations to an existing dwelling internal/external alterations. Mr Trist's role was as leading hand, organising surveys and set out, coordinating trades, brickwork laying, stone works, concreting, waterproofing, fascia removal, roof repairs, door replacements, water proofing, window replacement. Form at p22 s 58 docs * Building site 1 - 5 Scenic Drive Manly, North Head, 22 September 2014 to 22 November 2014 – 2 months' work. This consisted of construction of non-habitable structures deck and pergola and additions/alterations to an existing dwelling internal/external additions. Mr Trist's role was as leading hand, planning, coordinating trades, install new pergola /deck, gable replacement, roof repairs, fencing, bathroom, kitchen renewal. * Building site 2 -17 Scenic Drive Manly, 23 November 2014 to 23 January 2015 - 2 months' work. This consisted of construction of non-habitable structures deck/pergola/carport and additions/alterations to an existing dwelling internal/external. Mr Trist's roles and responsibilities were as leading hand, planning, coordinating and implementing works, kitchen replacement, flooring, gyprock, tile walls, plumbing and electrical, BCA compliances. Form at p25, s 58 docs * Building site 1 - 9 Scenic Drive Manly, North Head, from 24 January 2015 to 24 March 2015, 2 months' work. The work involved construction of non-habitable structures carport roof and additions/alterations to an existing dwelling internal/external alterations. Mr Trist's roles and responsibilities were as leading hand coordinate trades, new kitchen, bathroom and laundry, vinyl relaying, brickwork, lintel replacement, door and window replacements. * Building site 2 – 27 Scenic Drive Manly, North Head, from 25 March 2015 to 25 May 2015, 2 months of work. The work involved construction of non-habitable structures pergola and deck replacement and additions/alterations to an existing dwelling internal/external alterations. Mr Trist's roles and responsibilities were as leading hand, planning, implementing, actioning works consisting of pergola and deck additions, kitchen and bathroom replacement, gyprock, waterproofing, painting. Form at p26, s 58 docs * Building site 1 - 29 Scenic Drive Manly, North Head, from 26 May 2015 to 26 July 2015, 2 months. The work consisted of additions/alterations to an existing dwelling internal/ external renovations. Mr Trist's roles and responsibilities were as leading hand, coordinate trades, window replacement, roof and gutter repairs, fascia replacement, lintels, waterproof, floors, brickwork, kitchen and bathroom renovation * Building site 2 - 31 Scenic Drive Manly North Head from 27 July 2015 to 27 September 2015, 2 months of work. This involved construction of non-habitable structures, garage repairs and window replace and additions/alterations to an existing dwelling internal/external additions. Mr Trist's roles and responsibilities were as leading hand, planning, implementing works such as kitchen, bathroom, laundry replacement, floor repairs, gyprock, waterproofing, roof repairs, subsoil drainage, rising damp. Form at p27, s 58 docs * Building site 1 - 10 Artillery Drive Manly, North Head, from 28 September 2015 to 20 October 2015, 22 days. The work involved the construction of non-habitable structures the garage/deck/pergola and additions/alterations to an existing dwelling internal/external renovation. Mr Trist's role was as leading hand, coordinate trades, carpentry, brickwork replacement and repointing, roof and garage repairs, kitchen renewal. Form at p73, s 58 docs * Building site 1 – 5 St Barbara's Ave Manly, North Head from 21 October 2015 to 3 December 2015 – 43 days. Additions/Alterations to an existing dwelling Internal External Renovations. Mr Trist's roles and responsibilities at the site were leading hand, co-ordinating trades, replace weather boards, floor, gable end replacement, brickwork repairs/repoint, plumbing, gyprock, concrete, tile, and glaze. 1. In his letter of 7 December 2015 Mr Millar stated that he had known Mr Trist in a professional capacity for a little over two years at the Sydney Harbour Federation Trust. Mr Millar stated that he had supervised Mr Trist in a wide range of works, he has renovated and altered many of the Harbour Trust houses. He can administer the building construction knowledge he has learnt and take a project from concept to completion with his impeccable knowledge of the construction process, he can interpret plans and prepare budgets, write the scope of works, prepare and evaluate tenders, select and prepare the necessary contracts, obtain quotes, create a construction program, ensure compliances with WH and S and risk assessments, apply codes, standards and the BCA. Charles can manage (a) project on a building site, its works and its contractors, he has the ability to apply construction principles and converse with authorities, engineers, architects, clients and Stakeholders. 2. Mr Millar set out a brief outline of some of the on-site building construction works where he had supervised Mr Trist. "His site set out in competency (sic) use of lasers and automatic levels which allows him to correctly survey site, excavate, form, tie steel and place concrete. Structural works consist of underpinning masonry walls, as well as needling, for placement of structural steel to form openings for the installation of new windows and doors with all sundry items. Replace/repair bearers and joists and various types of flooring, renew barge and fascia boards, install external cladding, repair timber and steel framed roofs, replace hips, ridges, gable ends and valleys, install kitchens, vanities and various cabinetry. Renew bathrooms including the floor, ceiling and wall linings all types, all types of plasterboard and cornices fixed to altered or new framework. Set out and supervise all trades related to execution of works to be carried out, for example; all related brickwork and core filled blockwork. Rectification of rising damp, subfloor ventilation and all types of flashings and DPC. Installation of subsoil and stormwater drainage, gutters and downpipes, or plumbing….I feel confident in his abilities and experience that I may strongly endorse Charles for a type C builders licence." 1. In his evidence Mr Millar stated that he was senior maintenance supervisor with the Harbour Sydney Harbour Federation Trust. He has held a current builders licence for about 16 years. He said that all the work set out in his reference statements had been residential building projects. Mr Trist had been required to supervise a large range of trades, broader than those set out in the "information for Applicants" on the Respondent's website. Mr Trist's role had been to coordinate all of the trades. Structural work had been required such as walls being removed, laundries and LVLs inserted. Excavation had been required, as well as brick laying and steel placement. They had been required to remove sections of reinforced concrete slabs. This had also included a plumbing role and reinforcing rods. Some of the jobs had been extensive renovations. The projects were not primarily maintenance. It was general building work. The work at numbers 1 and 3 St Barbara's were worth about $700,000. The projects generally went for 3 weeks to 3 months. Mr Trist's role was as a maintenance officer but this title did not mean that the work undertaken was maintenance. "Maintenance" was merely a title - not a description of the work. 2. Mr Millar agreed that the work set out in his statements added up to 2 years and 14 days. He stated that since his statements ending in December 2015 that he had undertaken two more renovations at Scenic Drive Manly with Mr Trist. At 5 Scenic Drive Manly he had supervised Mr Trist 3 to 4 days a week. He said that Mr Trist does more of the renovations and alterations of Trust houses than he himself did. Mr Millar agreed that Mr Trist had not been required to construct new single dwellings. The jobs had not required development applications or the obtaining of occupation certificates. Mr Trist had been responsible for the procurement activities. The Applicant's submissions 1. Mr Trist submitted that he had gained experience and supervision in a wide range of building work that would satisfy the requirements of the Instrument. His experience fell under the definition of "general building work". It was not a requirement that he should have constructed a house from start to finish. He referred to the matter of Tange vs New South Wales Fair Trading [2013] NSWADT 201. 2. Further it was not a requirement that residential building work in which the experience is undertaken is subject to a development application - see Shoobridge v Commissioner of Fair Trading [2015] NSWCATOD 42 at 53. 3. It was not a requirement that the applicant has experienced in all aspects of building work, provided the experience is sufficiently wide - see Sollazzo v Commissioner of Fair Trading [2015] NSWCATOD 20. 4. There was no basis on which to reject his work experience undertaken for the Sydney Harbour Federation Trust. The applicant referred to Shoobridge v Commissioner of Fair Trading [2015] NSWCATOD 42 at 53 where Senior Member Moloney accepted that experience gained by the applicant on a hospital site and in the renovation of police houses at Broken Hill and the restoration of a house in Rockdale was valid experience. 5. The Applicant submitted that the work that he had undertaken to gain his experience was work which falls under the definition of "residential building work" in the Act, which states that residential building work includes alterations or additions, repairing, renovation, decoration or protective treatment of a dwelling. He had worked on dwellings under the supervision of Mr Millar for the preceding two years. The work was major renovation and refurbishing work. The majority of projects were undertaken over a period of 2 to 3 months with budgets ranging from $30,000-$700,000. This work fell within the category of residential building work for the purposes of experience. 6. Mr Trist submitted that he had experience in supervising a wide range of trades. These were clearly outlined in his referee statements. This included work from planning through to completion and included supervising a wide range of trade contractors in the undertaking of residential building work. 7. The applicant referred to the matter of Sollazzo, Sollazzo v Commissioner of Fair Trading [2015] NSWCATOD 20, where the senior licensing officer Mr Degenhardt from the licensing branch of the home building service of the Department had said in his evidence that in order to obtain the licence, an applicant must also have had experience in: "structural aspects of construction such as formwork, brickwork and a full range of carpentry. While not every residence will require those skills, the licence permits the holder to undertake the full work of activities." 1. In that matter Senior Member Mrs Isenberg stated: "In short the experience must include a broad range of the construction and finishing trades." 1. The Applicant distinguished his circumstances from the matter of Mr Locking where Mr Locking had only undertaken carpentry and joinery. In this matter, see Locking v Department of Finance and Services [2013] NSW ADT 239, the Deputy President set out criteria for a building contractor's skills: "A building contractor has the overall responsibility for a site and must be able to supervise all of the trades required to complete any kind of dwelling. Additionally a builder must be able to determine that all trades have complied with all standards and requirements." 1. Deputy President Hennessy listed such necessary trades as "flooring, bricklaying, stone masonry, wet plastering, painting, decorating, general concreting and tiling, demolishing, fencing, glazing and waterproofing." ……. 2. Deputy President Hennessy also stated that "a building contractor is also able to contract with the public, and therefore must be able to negotiate a contract, quote for a project and coordinate the trades to be able to complete the project on time and within budget. He or she must also be able to negotiate the jobs with Council and private certifiers to ensure that work is passed when appropriate." 3. Mr Trist submitted that he had demonstrated that he is able to undertake all of the roles identified in these criteria. 4. Mr Trist also referred to the Home Building Regulation 2014, regulations 13 and 14 which list categories of residential building work and categories of specialist work. He submitted that he met the majority of the trade categories and specialist work in both regulation 13 and 14. 5. Further in order to gain the role of "senior maintenance officer" Mr Trist had been required to demonstrate he held the skills also applicable to a builder's experience referred to in the position description. Mr Trist submitted that the role of senior maintenance officer included the majority of the experience requirements for a general building licence. 6. Mr Trist referred to the Respondent's claim that the Instrument excludes commercial or industrial building work as acceptable building experience. Mr Trist submitted that work undertaken on a commercial site can be valid experience and referred to the findings of Senior Member Molony in the matter of Shoobridge. Senior Member Molony had accepted that experience gained by the applicant on a hospital site (commercial construction), in the renovation of police houses of Broken Hill and the restoration of a house in Rockdale was valid experience. Mr Trist also noted that the Respondent had, in its own criteria, not ruled out considering experience other than residential building experience and provides the option for applicants to give details of this experience. 7. The Applicant submitted that the Respondent had previously found that he had 35 months relevant experience in his application lodged in November 2004 with the Respondent. The applicant submitted that this experience with Mr Philip Merrick and Mr Christopher Boniface should be taken into account. 8. The Applicant submitted that the Home Building Act 1989 is a consumer protection act; that skill knowledge and ability are the significant factors and that the Applicant had demonstrated he has over 35 years' experience in residential building work. He has no blemishes on his licence record. For over two years he had undertaken the role of builder for the Trust. His position description for his role as senior maintenance officer also described the role of a builder. He has experience in a wide range of residential building work. The evidence shows that he has the required skill, knowledge and ability to undertake the work as a builder. The Respondent's written submissions 1. The Respondent provided written submissions at the hearing which were later supplemented in conformity with the Tribunal's timetable. 2. The Respondent's submissions set out the legislative framework - referring to the January 2015 and April 2016 Instruments. 3. The Respondent also referred to New South Wales Fair Trading publication entitled "Building – Approved qualifications and experience" and a "Note to Applicants." 4. The Respondent considered that the issue was whether the Applicant has demonstrated that he has at least two years relevant industry experience in a wide range of building construction work. Respondent's analysis of reference from Anthony Millar. 1. The Respondent noted that Mr Millar had failed in his references to indicate his role, functions and responsibilities as an employee of the Sydney Harbour Federation Trust. The Respondent contended that the works set out by Mr Millar in his referee statements did not constitute a wide range of building construction work. The experience involved limited work on construction of non-habitable structures and additions, alterations and renovations to existing dwellings. Mr Trist's experience related to maintenance and refurbishment work and some minor additions relating only to pergolas, carports and decks. 2. The Respondent submitted that Mr Millar had confirmed in a conversation with a staff member of the Respondent in March 2016 that Mr Trist "does general maintenance on the Trust houses across Sydney which includes renovation, rectification, building decks and pergolas and plumbing works" and that the Applicant has not built any new houses. 3. The Respondent submitted that Mr Millar's referee statement standing alone could not satisfy the experience requirement of the Instrument. Accordingly no credit should be given to the work for these sites that Mr Millar had set out. The types of work do not meet the experience requirement "of a wide range of building construction work." Respondent's analysis of reference of Mr Merrick dated 5 December 2013 1. Mr Merrick a licensed contractor from 24 March 1998 to 24 March 2010, had verified that Mr Trist had worked at: * 1431 Botany Road, Botany from July 2003 to January 2004; and * 1433 Botany Road, Botany from January 2004 to June 2004. 1. The Respondent noted that Mr Trist had lodged his application on 21 October 2015. Some 11 years nine months had elapsed since Mr Trist had last worked at 1431 Botany Road, Botany and some 11 years and four months had elapsed since Mr Trist had worked at 1433 Botany Road, Botany. The Respondent submitted that these dates for the claimed experience were outside the 10 year period which is prescribed in the Instruments and therefore no credit should be given for work carried out at the Botany sites. Further the Respondent said that as the work at these sites were commercial projects – restaurant and takeaway food bar - they should be excluded as the Instrument specified that experience was experience gained in "residential building work". Respondent's analysis of reference from Craig Stephen Player 1. The Respondent noted that Mr Player holds a contractor licence in the category of general building work although the Player Group Holdings, by which he was employed, does not hold a contractor licence under the Home Building Act 1989. Mr Player's referee statement of 1 September 2013 certified that Mr Trist had worked as a subcontractor at 1433 Botany Road Botany from June 2006 to November 2006. The work had been a third storey addition to a building consisting of new concrete slabs and third storey brickwork and a new timber roof and metal roofing. 2. The Respondent submitted that Mr Player had told a staff member of the Respondent on 1 July 2016 that the work was carried out under an owner/ builder permit which had been taken out by Mr Trist. Mr Player carried out some of the work and left his carpenters at the site for Mr Trist to supervise them. No money had changed hands as they had practised the barter system. Mr Trist had done some plumbing work at Mr Player's house and in exchange Mr Player did some work at the Applicant's Botany site. Mr Trist had not been remunerated with money contrary to the requirement of the Instrument. 3. The Respondent submitted that the work verified by Mr Player did not satisfy the experience requirements prescribed by the Instrument because: 1. Mr Trist was not contracted to Mr Player to carry out the work described in the residential building experience form; 2. Mr Trist had not been financially remunerated for the work in accordance with the law; 3. as the holder of the owner builder permit, Mr Trist not Mr Player had been in control at the building site; Mr Trist as the holder of the owner builder permit had supervised the trades who were left by Mr Player on site; and 4. Mr Player had not supervised or directed the Applicant in the doing of the work. 1. Accordingly the Respondent submitted that Mr Trist was not able to claim the period he had worked at the 1433 Botany Road Botany site as the holder, or on behalf of the holder, Mrs Trist, of an owner builder permit. Owner/ builder permits and claimable experience 1. The Respondent referred to the findings of Senior Member Deutsch in Abdul Rahman v the Department of Finance and Services [2014] NSWCATOD 96 at 28 and Senior Member McAteer in Grewal v Commissioner of Fair Trading [2014] NSWCATOD 101 at 35. The Respondent cited these matters as authority for the principle that experience for these purposes would not include experience where the supervisor is an owner/builder - most particularly because the person in question would not be an employee of a person or otherwise lawfully engaged by someone who held the relevant licence. Further an owner/builder could not certify their own experience. Mr Trist's previous experience not acceptable 1. The Respondent also submitted that Mr Trist had made an application in July 2005 for the variation of his licence and that this application had been refused in February 2006. On appeal, the Administrative Decisions Tribunal had found that Mr Trist had not demonstrated that he had met the practical experience requirements for the licence sought. Accordingly he was not granted a licence and the ADT affirmed the Commissioner's decision. 2. The Tribunal notes that in the matter before the Tribunal in 2006, Senior Member Montgomery found that Mr Trist had been unable to verify his experience in sufficient detail with referee statements. The Respondent's further submissions 1. The Respondent submitted that the Applicant's statement about his experience before the Tribunal, should be given little weight as he could not verify his own experience. The Respondent also noted that the scope of works in his employment for the Sydney Harbour Federation Trust which had been attached to the Applicant's statement had been prepared for the purposes of the proceedings before the Tribunal, rather than for the works themselves and that the document was of no value in assessing Mr Trist's experience. 2. The Respondent noted that the Tribunal had specifically in more recent times stated that owner builder experience could not be considered as relevant experience. The Respondent referred to the matters of Thukral v Commissioner for Fair Trading [2006] NSWADT 356 and Kocoski v Department of Services, Technology and Administration [2011] NSW ADT 135. 3. The Respondent also submitted that the circumstances of Mr Trist's case were different from the circumstances taken into account in the matter of Shoobridge – Shoobridge v Commissioner for Fair Trading [2015] NSWCATOD 42. In the matter of Shoobridge, the Tribunal had found that even though the work was done under an owner builder permit, that the Applicant Mr Shoobridge had been engaged as a project manager by his referee Mr Brookes and that his work for four months was relevant industry experience while working on that site. This was not such a case, as Mr Trist, the owner builder on behalf of himself and his wife, had engaged Philip Merrick and Craig Player to carry out the works. Further he had not been financially remunerated as contemplated by the Instrument. 4. The Respondent referred to the Applicant's valuations of the work at the Sydney Harbour Federation Trust as mere, uncorroborated assertion. The Applicant had stated that the work involved a significant number of various trades. However the involvement of various trades is neither descriptive of the extent of the work undertaken nor determinative of the breadth of experience. In this case, the trades had been involved within the context of the work which the Applicant undertakes as a Senior Maintenance Officer of the Trust "building and site infrastructure maintenance, coordinating the trades, recurring maintenance contracts and undertaking general building and services maintenance as required". The Respondent submitted that the Applicant's work in the Trust is limited in scope. Although maintenance, refurbishment and renovation of dwellings forms part of the definition of "residential building work" they do not of themselves constitute the required "wide range of building construction work." 5. The Respondent also referred to the matter of Ozcelik v Commissioner for Fair Trading [2014] NSWCATOD 100 where the Tribunal had found that Mr Ozcelik could only lawfully do carpentry work under his employment and other experience could not be counted. By implication the Tribunal understands that the Respondent contends that Mr Trist could only lawfully do plumbing work for which he holds a licence in terms of the relevant Instrument and could not be supervising others on site. 6. The Respondent submitted that, based on the available material in the proceedings, the Applicant's work experience with the Trust was limited in scope. Accordingly that experience, standing alone does not constitute a "wide range of building construction work." Tribunal's consideration Qualifications and Experience 1. The Tribunal is satisfied that Mr Trist has the relevant qualifications. He has obtained both a Certificate IV and a Diploma in Building and Construction in October and April 2013. The Tribunal also notes that in 2004 Mr Trist obtained a Certificate IV in Contractor's Management Program. This is not a qualification specified by the Instrument. The issue for the Tribunal 1. The issue for the Tribunal in this matter is - Does Mr Trist satisfy the requirements of the Instrument dated January 2015 or April 2016? That is, does he have a minimum of 24 months experience in a wide range of building construction work, supervised and remunerated in an appropriate workplace relationship? 2. The Applicant has presented his referee statements from Mr Player, Mr Merrick and Mr Millar as evidence that he does have this experience. Respondent's rejection of claimed experience with Mr Player 1. The Respondent rejected the experience claimed by Mr Trist under the supervision of Mr Player on the basis that the work was "owner builder" work and that Mr Trist was the owner builder. Therefore Mr Trist could not have been supervised by Mr Player. It was also rejected because it was on an old referee statement. 2. The Tribunal accepts the Respondent's contention that the experience certified by Mr Player from June to November 2006 cannot be included as experience because there is a lack of evidence that Mr Player actually supervised Mr Trist – given the work was done on behalf of Mrs Trist's owner/builder permit. Further it is clear that Mr Trist was not remunerated in the ordinary sense of the word, in accordance with the requirement of the Instrument. The Respondent's rejection of experience with Mr Merrick 1. The Respondent rejected Mr Trist's claimed experience of 13 months with Mr Merrick on the basis that the work was commercial work and therefore could not be counted for the purposes of residential building. Further the work had been conducted more than 10 years prior to his application for a contractor licence and the information had been provided on an old referee's statement form. 2. The Tribunal respectfully disagrees with the Respondent's interpretation of the requirement in relation to the recency of experience. The wording of the Instrument is that "the majority of the experience has been obtained in the 10 years prior to the lodging of the application." The Tribunal considers this means that the majority of Mr Trist's experience must have been obtained in the 10 years prior to the lodging of his application in October 2015. Theoretically 51% of his experience needed to have been obtained in the period between October 2005 and October 2015. The complement of this is that 49% of Mr Trist's claimed experience obtained prior to October 2005 could be considered by the Respondent and the Tribunal. 3. However the Tribunal accepts the Respondent's submission that because the nature of the work at the Botany Road, Botany sites working with Mr Merrick was renovating and fitting out a restaurant and takeaway food bar, it was commercial and is excluded from consideration as "residential building work experience." 4. The Tribunal notes that the Respondent previously recognised Mr Trist as having 35 months of experience in relation to a previous application for a building contractor's licence. The detail of this experience was not put before the Tribunal. In these circumstances the Tribunal has not taken this "experience" into account. It is the Tribunal's view that experience obtained prior to 10 years before the submission of an application, can be taken into account as set out in the Instrument, although the majority of the experience must have been obtained in the immediately previous 10 years. What constitutes "experience" 1. In exercising the discretion to grant licences, it is relevant to have regard to the objectives of the Act. In Tomoski Developments Pty Ltd v Commissioner for Fair Trading [2005] NSWADT 263 Judicial Member Molony stated at paragraphs [14] – [15]: "The Home Building Act 1989 is essentially a consumer protection Act which regulates residential building work in NSW. It provides for the licensing and regulation of those engaging in residential building work, and makes provision as to their competence, fitness and solvency, and for their discipline ... By issuing contractor licences and certificates the Commissioner represents to members of the public that the contractor meets the fitness, competency and solvency requirements of the Act and is authorised to do the work specified in his or her licence". Definition of Residential work 1. There are a number of references to the types of trades and functions which constitute residential building work set out in the Act and Regulation. The Tribunal sets these out below. 2. Schedule 1, clause 2 of the Home Building Act 1989 provides a definition of residential building work. Relevant parts only of clause 2 are set out below. 2 Definition of "residential building work" (1) In this Act, "residential building work" means any work involved in, or involved in co-ordinating or supervising any work involved in: (a) the construction of a dwelling, or (b) the making of alterations or additions to a dwelling, or (c) the repairing, renovation, decoration or protective treatment of a dwelling. (2) Each of the following is included in the definition of "residential building work" : (a) roof plumbing work done in connection with a dwelling, (b) specialist work done in connection with a dwelling, (c) work concerned in installing in a dwelling any fixture or fixed apparatus that is designed for the heating or cooling of water, food or the atmosphere or for air ventilation or the filtration of water in a swimming pool or spa (or in adding to, altering or repairing any such installation). Home Building Regulation 2014 1. The Home Building Regulation 2014 at Regulations 13 and 14, sets out categories of Residential Building as follows 13 Categories of residential building work For the purposes of sections 21 (1) (a) and 27 (1) (a) of the Act: (a) the following building work categories of residential building work are prescribed: (i) erection of pre-fabricated metal-framed home additions and structures, (ii) general building work, (iii) kitchen, bathroom and laundry renovation, (iv) structural landscaping, (v) swimming pool building, and (b) the following trade categories of residential building work are prescribed: (i) bricklaying, (ii) carpentry, (iii) decorating, (iv) dry plastering, (v) excavating, (vi) fencing, (vii) general concreting, (viii) glazing, (ix) joinery, (x) metal fabrication, (xi) minor maintenance and cleaning, (xii) minor tradework, (xiii) painting, (xiv) roof plumbing, (xv) roof slating, (xvi) roof tiling, (xvii) stonemasonry, (xviii) swimming pool repairs and servicing, (xix) underpinning or piering, (xx) wet plastering, (xxi) wall and floor tiling, (xxii) waterproofing. 1. Regulation 14 sets out categories of "specialist work" such as draining, electrical wiring work and plumbing. Analysis of Experience under supervision of Mr Millar at Sydney Harbour Trust 1. The Tribunal has set out in detail above the contents of the Referee statement and attachments from Mr Millar, his letter verifying Mr Trist's experience and skill and his evidence to the Tribunal. He is a licensed builder of 16 years standing. Mr Millar appeared to be a witness of credit. He was unshaken under cross examination about his view that Mr Trist demonstrated in his role with the Sydney Harbour Federation Trust "experience in a wide range of building construction work". 2. The Respondent did not contest that Mr Millar had supervised Mr Trist for a period of 24 months at least. The Tribunal is satisfied that Mr Millar supervised Mr Trist for a period in excess of 24 months. 3. Mr Millar rejected the Respondent's contention that the role was just a maintenance role, by referring to the required skills set out in the relevant job description. 4. The Respondent contended that Mr Trist could not be said to have experience in a wide range of construction work. He had not been responsible for the building of a house from start to finish. In the matter of Tange v NSW Fair Trading [2013] NSWADT 201 at 57 Judicial Member Montgomery found that: "It is not in dispute that the Applicant has not constructed a house from start to finish. However, in my view that is not conclusive of the issue. As noted, the Act is a consumer protection Act. Skill, knowledge and ability are the significant factors." 1. The New South Wales Fair Trading website, downloaded on 21 April 2016, set out the contemporary Instrument and text in relation to "Building" as follows. Any work that is residential building work under the Home Building Act 1989 which involves construction of a dwelling, or alterations or additions to a dwelling. It also includes repairing, renovation, decorating or replying protective treatment to a dwelling. 1. The Tribunal does not consider it is necessary for Mr Trist to have constructed a house from start to finish to demonstrate experience in a wide range of building construction work. Rather his role as a builder requires him to have the skills to plan and then manage a construction project from start to finish. 2. The Respondent also contended that although Mr Millar's statements nominate Mr Trist as having co-ordinated a number of trades, the work was limited in scope, given the limited monetary value of and the time spent at each job. 3. The Tribunal accepts Mr Millar's evidence that the value of the projects ranged from $35,000 to $700,000. The Tribunal does not consider that there is a specific value of work which demonstrates experience in a wide range of building construction work. 4. The Tribunal returns to Deputy President Hennessy's analysis of the experience requirements for licensing of 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. …….There are many gaps in Mr Locking's trade supervisory experience and therefore his understanding of certain trades. Those trades include flooring, bricklaying, stonemasonry, wet plastering, painting, decorating, general concreting, tiling, demolishing, fencing, glazing and waterproofing. 19. 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." 1. In the light of this analysis, this Tribunal accepts Mr Millar's evidence about the scope of projects undertaken by Mr Trist and the breadth of trades he was required to oversee. 2. Mr Millar referred to Mr Trist's capacity in initiating a project on site: "His site set out in competency (sic) use of lasers and automatic levels which allows him to correctly survey site, excavate, form, tie steel and place concrete. Structural works consist of underpinning masonry walls, as well as needling, for placement of structural steel…." 1. Mr Millar's evidence also referred to Mr Trist's experience in construction fundamentals. This included: "Structural work had been required such as walls being removed, laundries and LVLs inserted. Excavation had been required, as well as brick laying and steel placement. They had been required to remove sections of reinforced concrete slabs. This had also included a plumbing role and reinforcing rods. Some of the jobs had been extensive renovations. The projects were not primarily maintenance. It was general building work." 1. The Tribunal considers that this is evidence of Mr Trist's capacity to prepare the fundamental elements of onsite work, which would be expected of a builder being in control of a site. Further the Tribunal is satisfied that this is evidence of Mr Trist's capacity to manage essential building processes. 2. The Tribunal also refers to the range of trades and functions involved in Mr Trist's work undertaken at the Trust as set out by Mr Millar. 3. The types of activities that Mr Millar refers to include removal of load bearing walls, lintel and brickwork replacement, water proofing, gyprock replacement glazing bricklaying/repointing, roof repairs, door and window replacements concreting, tile laying, plumbing, electrical, BCA compliances, kitchen replacement and flooring. The Tribunal is satisfied that these constitute a wide range of trades, overseen as leading hand by Mr Trist. 4. Mr Millar has also set out that Mr Trist's specific role was as leading hand. The Tribunal understands this to mean he was the most experienced person on the job who supervised others, subject to the supervision of the foreperson or supervisor, which in this instance was Mr Millar. The Tribunal is satisfied from Mr Millar's evidence that Mr Trist fulfilled the role of coordination and supervision of various trades on-site. 5. Mr Millar and Mr Trist also gave evidence of Mr Trist as having participated in the planning of projects and allocation of budget. Mr Trist presented a project plan to the Tribunal as evidence of his capacity to do so. The Respondent contended that the plan had been prepared only for these proceedings. Even if this is so, the Tribunal is satisfied that Mr Trist has demonstrated the capacity to do this in his obtaining experience with the Trust to the satisfaction of his supervisor, Mr Millar. 6. The Respondent also contended that Mr Trist had not been required to obtain Development Application Approval or occupation certificates for his work at the Trust and that this contributed to him not having experience in a wide range of building construction work. 7. In the matter of Shoobridge at 53, Senior Member Mr Molony stated: The Respondent also submitted that work done by Mr Shoobridge on a site which did not require the issue of DA, such as the renovations and repairs of the Broken Hill Police houses, should not be regarded as relevant industry experience. As I understood it, the thesis behind this submission was that work that did not require a DA did not provide the type of experience necessary for a licensed contractor. The Respondent did not lead any evidence to support this. Mr McMahon, on the other hand, considered that the experience Mr Shoobridge gained when working on the Police houses was relevant, and was testimony to Mr Shoobridge's competence. In my view whether experience gained on any building site is relevant industry experience is a question of fact to be determined in each case. The standards do not require that there be a DA in place for work done on a site to be relevant industry experience. 1. It would have been of advantage for Mr Trist to have had experience in obtaining a DA and occupation certificates certifying work undertaken. However this Tribunal does not consider having obtained DA approval for work as essential to establishing experience in a wide range of building construction work. The Tribunal is satisfied that Mr Trist has the skills to undertake the process of obtaining DA approval – based on Mr Millar's attestation to Mr Trist's project planning skills. In other respects, as set out, the Tribunal considers Mr Trist's experience is sufficiently broad. 2. On balance, this Tribunal is satisfied that Mr Trist's work with the Sydney Harbour Federation Trust meets the requirement of supervised experience for at least 24 months in a wide range of building construction work. The Tribunal is satisfied that Mr Trist has the skill, knowledge and ability to hold a building contractor's licence. 3. The Tribunal notes that Mr Trist has the necessary qualifications to be licensed as a building contractor under the Instrument. There was no suggestion that Mr Trist lacked fitness and propriety to be licensed as a building contractor. Decision 1. The decision of the Respondent to refuse to grant the applicant a building contractor licence is set aside. 2. In substitution for that decision the following decision is made: The applicant is granted a building contractor licence. 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: 25 October 2016