Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Carrigan v NSW Fair Trading [2018] NSWCATOD 60 Hearing dates: 7 March 2018 Date of orders: 27 April 2018 Decision date: 27 April 2018 Jurisdiction: Occupational Division Before: R C Titterton, Principal Member Decision: 1. The respondent's decision to refuse the applicant's application for an Individual Contractor Licence is set aside. 2. In substitution for that decision, the respondent is to issue the applicant with an Individual Contractor Licence on or before 18 May 2018. Catchwords: ADMINISTRATIVE REVIEW – Home Building – Application for individual contractor licence – Where application rejected on basis that applicant did not meet requirements of an instrument made by the respondent – Whether the Tribunal is satisfied that the applicant has the requisite qualifications and experience to be a builder Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Home Building Act 1989 Home Building Amendment Act 2014 Home Building Regulation 2004 Home Building Regulation 2014 Cases Cited: Limberis v Commissioner for Fair Trading [2017] NSWCATOD 128 Whitehouse v Commissioner for Fair Trading [2017] NSWCATOD 108 Category: Principal judgment Parties: Paul Carrigan (Applicant) NSW Fair Trading (Respondent) Representation: Solicitors: Applicant: self-represented NSW Fair Trading, Respondent File Number(s): 2017/00378344 REASONS FOR DECISION Introduction 1. The applicant seeks administrative review of the respondent's decision of 18 September 2017 to refuse his application for an Individual Contractor Licence under the Home Building Act 1989 (NSW) (the Act). The decision was affirmed on internal review of 24 November 2017. 2. On 31 March 2017, pursuant to s 33D of the Act, the Commissioner for Fair Trading published an instrument titled "Qualification requirements for an endorsed contractor licence or supervisor certificate for general building work" (the Instrument). The basis of the decision to refuse the applicant's application was that he had not met the relevant qualification and experience requirements for the issue of an Individual Contractor Licence in accordance with the Instrument. 3. For the following reasons, I have decided to set aside the respondent's decision. In substitution for that decision, the respondent is to issue the applicant with an Individual Contractor Licence within 28 days of the date of this decision. Background 1. On 16 August 2017, the applicant sought the respondent to issue him with an Individual Contractor Licence in the category of general building work under the Home Building Act 1989 (the Act). 2. On 18 September 2017, the application was refused for the following reasons: In support of the application, the applicant submitted Certificate IV in Building and Construction (Building) CPC40110. It was determined that this alone was not sufficient to satisfy the qualification requirements for the issue of a builder licence. Reference from Darryl Krestensen was not accepted. It was determined that the applicant was a developer and contacted the builder to build the projects but he was not employed or financially renumerated by the builder for any of the projects claimed. For the experience claimed at [address], North Tamworth, Fair Trading was not satisfied that the building work was carried out by Darryl Krestensen (the referee) as the certificate of home warranty insurance was issued to another builder Gary Mervyn Botham. It was also noted that the referee did not clearly list the applicant's onsite duties in relation to each project. 1. While the applicant had filed a copy of a Certificate IV in Building and Construction (Building) in support of his application, the delegate of the respondent found that the applicant had not submitted acceptable evidence that he had obtained approved qualifications for the issue of a licence in the category of Builder in accordance with the Instrument. The Instrument relevantly states that the Commissioner for Fair Trading has determined that experience required for the grant of a licence or certificate to be issued, an applicant must demonstrate a minimum of two years' relevant industry experience in a wide-range of residential building work, where a majority of that experience was obtained within ten years of the date on which the application was made. The Instrument relevantly defines "experience" as experience gained by an applicant as "an employee of" or the holder of a holder of a contractor licence authorizing the holder to do the class of residential building work in which the experience was gained, where the applicant, during the relevant period, was supervised and directed and received remuneration for that work. 2. The delegate found that the applicant had not demonstrated that he had sufficient experience in supervising residential construction work where he was or had been employed by a licensed builder. The respondent had conducted a referee check with his referee, Mr Darryl Krestensen, who confirmed that the applicant was neither an employee nor a subcontractor. Mr Krestensen told the delegate that the applicant was the developer who engaged the builder, HSB Investments Pty Ltd, to carry out the residential building works. 3. Based on this information, the respondent was satisfied that the applicant was involved in building sites as a developer, not as a direct employee or a subcontractor of a builder. Accordingly, the respondent determined that the applicant had not lawfully gained the work experience to be issued with a builder contractor licence. 4. The delegate's decision was affirmed on 24 November 2017 after an internal review. The internal reviewer concluded: that the applicant has not satisfied the approved qualification requirements for a building licence as he has not supplied evidence of having completed the approved qualification as listed in the instrument. … The reviewer acknowledges that the applicant may have carried out construction work at the sites claimed as verified by Darryl Krestensen however it is unable to be considered towards the licensing requirements as he was neither employed by HSB Investments Pty Ltd (the builder) nor did he receive any remuneration from them for the period of work claimed. It has therefore been concluded that the applicant has not verified the time and the extent of building experience in a wide range of building construction work to meet the standard determined by the Secretary for the issue of a general building authority. The issue to be determined 1. The applicant now seeks administrative review of the respondent's decision of 18 September 2017. The issue for the Tribunal to determine is, in light of all the evidence, what is the correct and preferable decision in relation to the applicant's request to be issued with an Individual Contractor Licence. Evidence before the Tribunal 1. The evidence before the initial delegate and the internal reviewer appears in the 304 pages of s 58 materials filed with the Tribunal. There was a small amount of additional evidence before the Tribunal provided by the applicant. It is common ground that the materials provided by the applicant included the following: 1. evidence of a TAFE NSW Certificate IV in Building and Construction (Building) dated 4 December 2016 with Transcript of Academic Record; 2. a statement of Mr Krestensen dated 14 August 2017, with On Site Building Experience forms; 3. details of the applicant's relating to developments at the following sites listed on the On Site Building Experience over 20 years at various sites in Hillvue (two) North Tamworth (five) and Armidale; 4. documents, including details of experience, relating to development at sites not listed on the On Site Building Experience forms signed by the Referee; 5. various other references; 6. a letter from the Referee dated 11 October 2017, in which the Referee confirmed the applicant's roles and responsibilities at the following sites in largely the same terms as those provided by the applicant in his original application. 1. Mr Krestensen's evidence was extensive. He sets out the applicant's experience in relation to some nine sites for which Mr Krestensen was the principal contractor. This experience was gained over some 20 years. Mr Krestensen states that the applicant was involved from the beginning in the construction of the base, frame enclosed fixing and practical completion of all those sites. Mr Krestensen sets out the applicant's supervisor experience, the administration services he provided and the management services he provided in relation to each site. To take one site in North Tamworth by way of example, Mr Krestensen says that the services provided by the applicant included the following: Supervisory experience Surveyed contour of the land and worked out cut and fill measurements. Ensured satisfactory compaction of fill with double drum vibrating roller. Worked with and advised the excavator driver the size and depth of the footings as per engineer's specifications. Worked with and advised concreter specifications of trench mesh, slab mesh etc. Formed up and placed steel under my supervision. Ordered and supervised concrete pour and ensure correct MPA and slump onsite. Supervised and assisted where needed the erection of the Frames and Trusses. Erected Frames and Trusses under my supervision. Worked on tie down and bracing as per engineers specifications Undertook and ensured bracing and tie down were adhered to as per engineers report. Advised Electrician of lighting required and location. Installed windows, entrance door and bathtub under my supervision. Install insulation sarking wrap Advised (supplied) plumber of fixtures and fittings for him to rough in plumbing accordingly. Advised him of location of external stormwater pits and ensured backfilling of trenches was carried out appropriately. Ensured correct insulation in ceiling and roof was applied as per basix requirements. Ensured glazing complied with BASIX requirements. Ensured roofing and insulation complied with BASIX requirements. Framed out and Installed eave sheets and framed out patio and porch. Measured and drew up all cabinet and stone / laminate tops for order. Custom ordered kitchens and cabinetry and installed under my supervision. Ensured all tapware and tanks complied with Tamworth City Council water ratings etc. Advised water proofer where needed regarding shower recesses, size etc. Advised tiler where regarding needed tile sizing, placement, location etc. Installed internal doors and fixout skirt and archs under my supervision. Met with council inspectors during all inspections to ensure building complied with their requirements and rectified any issues where required. Administration Services Sourced land and undertook market research in the local area. Performed financial feasibility study on land and build to ascertain viability of the project. Liaised with solicitor where needed for the settlement of the land. Liaised with Architect, Structural Engineer and architect in preparation for submitting plans to council for approval. Submitted tenders to local trades and services for the job once plans were finalised. Completed and submitted relevant paperwork to Tamworth City Council for approval and for occupancy certificate. Arranged payment to all contractors, suppliers as per invoices supplied. Arranged NMI number through Essential Energy for power connection after consulting with the electrician and working out the demand (draw in amps) of the dwelling. Engaged and Liaised with local real estate agent and solicitor to prepare and arrange the property for sale (Planning Certificates, contracts Etc). Arranged appropriated construction insurances for the build. Management Services Coordinated council inspections at the appropriate time as required. 1. Mr Krestensen says that the applicant has worked alongside him for over 20 years on a number of medium/high density residential properties where HSB Investments Pty Ltd was the principal builder. 2. Mr Krestensen was required for cross-examination at the hearing. While he conceded that his statement in his Referee's Statement that the applicant was a fulltime employee was not correct, I do not doubt the balance of his evidence attesting to the applicant's experience over many years. 3. There was also a brief statement of Mr John Walsh included in the evidence. Mr Walsh's firm John Walsh & Associates Pty Ltd has been retained by the Carrigan family company Undoolya Pty Ltd since its inception and the commencement of development building in 1992. Mr Walsh states that the applicant has worked alongside his father, Mr Jerome Carrigan, since before he left school in 2000. While the evidence established that the applicant has also worked in the finance industry and as an accredited finance broker, I have no doubt that, as I discussed with his family during the hearing, that he was practically "born on a building site", and has worked alongside his father for many, many years. 4. Many other references were provided, each attesting to the applicant's experience in building. These include Mr Craig Drever, D & C Projects, Building Design Drafting Service; Mr Justin Cant, Kelly Covery Pty Ltd; and Mr Andrew Swane, Brown & Krippner Pty Ltd. Their evidence is more generalized than Mr Krestensen's, but is very positive and supportive. For instance, Mr Drever, who has known the applicant since 2012, states that he considers the applicant to be a very professional and proficient project manager and developer/builder. Mr Cant states that, having worked with the applicant for over 10 years, he can attest to the applicant's professionalism and expertise in relation to large scale residential dwelling construction and project management works. Mr Cant says that he can "confidently" provide a reference and that he considers the applicant to be a competent builder. 5. There was also evidence before the Tribunal that the applicant was shortly to complete a Certificate III in Carpentry at the Tamworth campus of TAFE NSW. Jurisdiction 1. The Tribunal has jurisdiction to review the Commissioner's refusal of applicant's application for a contractor licence under s 83B(1) of the Act, s 9 of the Administrative Decisions Review Act 1997 (NSW) and s 30 of the Civil and Administrative Tribunal Act 2013 (NSW). Relevant legislative provisions 1. A contractor licence authorises the holder to contract to do certain residential building work (Home Building Act, s 21) and an endorsed contractor licence authorises its holder to do (and to supervise) the same residential building work, or specialist work, as it authorises its holder to contract to do (Home Building Act, s 28(1)). 2. Section 20 of the Home Building Act relevantly provides: 20 Issue of contractor licences (1) The Secretary must refuse an application for a contractor licence if: ... (a1) the Secretary is not satisfied as to the matters of which the Secretary is required to be satisfied by sections 33B and 33C, or ... (2) The regulations may fix or provide for the Secretary to determine additional 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. ... (3) The Secretary must refuse an application for a contractor licence if: (a) the Secretary is not satisfied that any such requirement would be met were the contractor licence to be issued, or (b) the Secretary is not satisfied with the applicant's proposed arrangements for supervision of the work which the contractor licence will authorise the applicant to contract to do, or (c) the Secretary is not satisfied that the applicant has complied or is able to comply with any requirements of Part 6 or any requirements of the regulations relating to insurance applicable to the doing of work of a kind proposed to be authorised by the contractor licence. … (5) A decision of the Secretary relating to determining standards or other requirements under subsection (2) cannot be reviewed by the Tribunal in an application for an administrative review made under this or any other Act. 1. Section 33C(1)(b)(i) of the Home Building Act provides that a contractor licence must not be issued unless the Secretary is satisfied that the applicant, if also applying for an endorsement of the contractor licence to show that it is the equivalent of a supervisor certificate, satisfies the requirements of section 33D for the issue of a supervisor certificate to the applicant. There was no dispute that s 33C(1)(b)(i) applies in the circumstances of this case and that, as a result, s 33D applies. 2. Section 33D(1) provides as follows: 33D 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. Consideration 1. The Instrument provides that it is necessary for the applicant to be in possession of: 1. qualifications or the passing of examinations in Column 1 of Table A to Schedule 1 of the Instrument; and 2. experience specified in Column 2 of Table A opposite the relevant matter in Column 1. 1. In relation to qualifications or passing of examinations, the Instrument provides that the applicant: 1. is to have completed Certificate IV in Building and Construction; and 2. hold an endorsed contractor licence or supervisor certificate held under the Act for Carpentry or Bricklaying which is current at the date on which the application is made a qualification approved for the time being under s 33D(1) of the Act for such a licence or certificate; or 3. have completed a Diploma of Building and Construction (Building). 1. It is common ground that while the applicant holds a Certificate IV in Building and Construction, he does not hold a contractor licence or supervisor certificate held under the Act for Carpentry or Bricklaying, nor had he completed a Diploma of Building and Construction (Building). 2. In other words, while the applicant satisfied (what I will describe as) the first limb of the qualification or examination component of the Instrument, he does not satisfy (what I will describe as) the second limb. 3. In addition to qualification requirements, the Instrument provides that, for a contractor licence to be issued, an applicant must demonstrate a minimum of two years' relevant industry experience in a wide-range of residential building work, where a majority of that experience was obtained within ten years of the date on which the application was made. The Instrument defines "experience" as experience gained by an applicant as: * an employee of; or * a holder of a supervisor certificate and as a nominated supervisor for the contractor licence held by; or * a holder of an endorsed contractor licence contracted to; or * 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; or * 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 this is verified in the Relevant Application Form; and * received remuneration in accordance with law for the Work which the applicant carried out. 1. While the respondent accepts that the applicant has more than two years' appropriate experience, it submits, that none of this experience was gained as an employee. 2. In essence, the respondent submits that the applicant fails to conform with the Instrument in two respects: * he does not hold an contractor licence or supervisor certificate held under the Act for Carpentry or Bricklaying, nor had he completed a Diploma of Building and Construction (Building); and * he does not have more than two years' appropriate experience as an employee. 1. However, and this is acknowledged by the respondent, consistent with the Whitehouse decision, the Instrument is not binding on the Tribunal. Nevertheless, the respondent submits that the requirements set out in the Instrument are appropriate and sound and ought to be followed by the Tribunal in determining the correct and preferable decision. It relies on Limberis v Commissioner for Fair Trading [2017] NSWCATOD 128, at [33], a decision published after Whitehouse. There the Senior Member, while agreeing with Dr Lucy's analysis in Whitehouse, found no reason to depart from this aspect of the Instrument. 2. One of the important distinctions between the present matter and Limberis is that Mr Limberis had no independent references, and the respondent had doubt about the extent of the experience that Mr Limberis claimed. While there was evidence from a construction surveyor, the surveyor did not give evidence of the projects Mr Limberis worked on, including the duration and nature of the work. The only evidence before the Tribunal about the work carried out by Mr Limberis was the evidence given by him. The Tribunal has held in a number of cases that an applicant alone cannot verify their own experience: see Limberis at [38] and the cases there cited. It was in those circumstances that the Tribunal gave effect to the requirements of the Instrument. 3. Like Senior Member Lucy in Whitehouse I accept that: 1. the proper characterisation of the Instrument is that it is a policy, but not "Government policy" as that term is defined in ss 50 and 64(1) and of the Administrative Decisions Review Act; 2. the Tribunal is only required to give effect to "Government policy": see par [39]; 3. the Tribunal "may have regard to any other policy applied by the administrator in relation to the matter concerned except to the extent that the policy is contrary to Government policy or to law or the policy produces an unjust decision in the circumstances of the case": see s 64(4) of the Administrative Decisions Review Act 1997 (the ADR Act) and Whitehouse at par [39]; 4. the Tribunal must not apply the Instrument inflexibly (that is, as a fixed, determinative rule), as this would be an error of law (see par [57] and Dr Lucy's discussion of the authorities). 1. As the respondent submitted, the central reason for the finding that the applicant does not meet the experience requirements for a contractor licence was that he was not employed by Mr Krestensen or the builder for the sites at which the experience was claimed. While the Referee's Statement signed by Mr Krestensen declared that the applicant's experience was gained on a full-time basis as an employee, subsequent clarification with Mr Krestensen (confirmed in cross-examination) revealed that the applicant is a developer (more correctly is a director of a family property development company, Undoolya Pty Ltd) and that he was not employed by Mr Krestensen or HSB Investments Pty Ltd. The respondent submits that in a paid employer/employee relationship, there is likely to be a high level of supervision of an employee to ensure the work is of an acceptable standard and completed within required timeframes, as well an expectation of strict adherence to work hours. A developer working on aspects of a build is unlikely to be supervised in the same way as an employee. Furthermore, a referee such as Mr Krestensen in the position of being effectively employed by an applicant may feel under an obligation to certify experience in such a situation. 2. However, ultimately, as the respondent concedes (submissions par [24]), the breadth of the applicant's experience is not in dispute, and the total time claimed by the applicant (well and truly) exceeds the required two years' experience stated in the Instrument. 3. The respondent further submits that the intentions of the Act and the public interest would not be furthered by departing from the requirements of the Instrument in this matter, and that there is no evidence that adherence to the requirements of the policy would produce an unjust decision in the circumstances of this matter. I disagree. In my view, were I to apply the policy contained in the Instrument strictly, this would produce an unjust decision in the circumstances of this case (Administrative Decisions Review Act, s 64(4)). 4. I turn to consider whether or not I am satisfied that the applicant should be issued with an Independent Contractor Licence. The Tribunal's task is to determine the application on the material before it (Administrative Decisions Review Act, s 63). There is ample evidence before me, summarised above, to determine the application. As Senior Member Lucy stated in Whitehouse at [53]: As the applicant has not met the requirements of the Instrument, I have to consider whether I may determine that he should be issued with a contractor licence, having regard to s 33D(1). Read with s 33C(1), this provides that the Secretary must not issue the endorsed contractor licence unless satisfied that the applicant (relevantly) has such qualifications as the Secretary determines to be necessary to enable the applicant to do, or to supervise, the work for which the endorsed contractor licence is required. The Tribunal stands in the shoes of the Secretary when conducting a review, so the provision is to be read as if the word "Tribunal" were substituted for the word "Secretary." As indicated above, the Tribunal may have regard to the Instrument except, relevantly, to the extent that it is contrary to law or to the extent that it produces an unjust decision in the circumstances of the case. 1. While it is correct that the applicant has not satisfied the strict requirements of the Instrument, I am satisfied that the nature of his work experience is so extensive that it otherwise qualifies him for an Independent Contractor Licence. On the basis of the evidence before me (summarised above at pars [12] to [17]), I am satisfied that the applicant has had experience of such a kind and for such a period as would enable the applicant to do, or to supervise, the work for which the certificate is required; and is capable of doing or supervising work for which the certificate is required. I am also satisfied that the applicant's qualifications are such as to enable him to do, or to supervise, the work for which the individual contractor licence is required. 2. In these circumstances, I am satisfied that the applicant has the qualifications required by s 33D(1)(a), when read with s 33C(1)(b). 3. I must also be satisfied of the matters in s 33D(1)(b) and (c) before deciding that an Independent Contractor Licence should be issued to the applicant. These are the requirements that the applicant 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 that the applicant is capable of doing or supervising work for which the certificate is required. Again, I find that the evidence before me establishes that the applicant has had experience of such a kind and for such a period and I consider this would enable the applicant to do, or to supervise, the work for which the endorsed contractor licence is required, and that the applicant is capable of doing or supervising work for which the certificate is required. I did not understand the respondent to be making any submissions to the contrary. 4. In the circumstances, and for the reasons given above, I am satisfied that the correct and preferable decision is for the applicant to be issued with an Individual Contractor Licence. Orders 1. For the above reasons, the Tribunal orders that: 1. the respondent's decision to refuse the applicant's application for an Individual Contractor Licence is set aside; 2. in substitution for that decision, the respondent is to issue the applicant with an Individual Contractor Licence on or before 18 May 2018. ******** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 April 2018