Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Samimi v Department of Fair Trading [2019] NSWCATOD 86 Hearing dates: 4 March 2019 Date of orders: 06 June 2019 Decision date: 06 June 2019 Jurisdiction: Occupational Division Before: J McAteer, Senior Member Decision: The decision of the respondent is affirmed. Catchwords: ADMINISTRATIVE Law – administrative review – home building - fit and proper person - whether conduct constitutes failure to disclose – whether matters required disclosure – meaning of fit and proper having regard to legislative scheme – weight of evidence – unchallenged evidence of conduct Legislation Cited: Civil and Administrative Tribunal Act 2013 Home Building Act 1989 Queensland Building and Construction Commission Act 1991 (Qld) Cases Cited: Australian Broadcasting Tribunal v Bond [1990] HCA 33 Bournelis v Building Services Corporation Commercial Tribunal of New South Wales, unreported 9 June 1995 Hughes and Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28 Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 Ng & anor v Commissioner for Fair Trading, NSW Office of Fair Trading & anor [2007] NSWADT 259 Samimi & Anor v Queensland Building and Construction Commission [2015] QCA 106 Samimi v Djamshidi [2018] NSWSC 1944 Category: Principal judgment Parties: Kamran Samimi (Applicant) Department of Fair Trading (Respondent) Representation: Solicitors: H.Ford (Agent purs s-45(1)(b)) (Applicant) A Whitton (Fair Trading Legal) (Respondent) File Number(s): 2018/00174315 REASONS FOR decision Introduction 1. The applicant held a Contractor Licence issued under the Home Building Act 1989 (the HB Act). The respondent became aware of matters involving the applicant's affairs in the construction industry initially interstate and also in New South Wales. These matters were investigated by the respondent who concluded that the applicant was not a fit and proper person to hold the relevant licences under the HB Act, and as result of this finding cancelled his licences. In addition the respondent refused a fresh application for a contractor licence under the HB Act. 2. After considering all of the evidence and material, the Tribunal finds that the applicant is not a fit and proper person to hold a contractor licence under the HB Act, for the reasons outlined below. Background 1. Sometime prior to 6 September 2017 the respondent received information about the applicant from the Queensland Building and Construction Commission (QBCC). That information was that the applicant's individual authority was cancelled in 2014 and as a result the related construction company was suspended by force of Queensland legal provisions. 2. On 6 September 2017 the respondent wrote to the applicant about these matters and issued a Notice to Cancel pursuant to s 22(1) (h) of the HB Act. Following further inquires and exchanges of information between the parties on 16 October 2017 the respondent cancelled the licence. A few days after the applicant's licence was cancelled the applicant subsequently applied for a fresh licence. On 4 January 2018 the respondent decided to refuse the applicants request for a contractor licence under the HB Act in the area of General Building Work. The decision turned on the purported failure by the applicant to disclose various corporate changes concerning companies of which he was a Director, some adverse court outcomes and other matters referred to in the paragraph below. 3. The Reasons for Decision of 4 January 2018 referred to a number of matters which the respondent identified as pertinent to their decision to refuse the fresh licence request. These included: * A Queensland District Court order that the applicant and another Director pay the Queensland Building Services Authority $481,369.83 plus costs. * A failure to disclose the Court judgment to the respondent when renewing his NSW licence despite the renewal form requiring such matters to be disclosed. * Four of the eight companies which the applicant was a Director of have been placed in external administration. * The applicant owes the QBCC $400,000.00 in outstanding insurance claims. * A work contract was signed in February 2017 concerning a company of which the applicant was a Director. Payments were received and work commenced in NSW with no insurance in place and the work was suspended due to the independent certifier's instructions re: unsatisfactory work. The applicant failed to declare these matters to the respondent when reapplying. * Six directions were issued to the applicant concerning Queensland construction work and he failed to comply with four of the six directions. 1. The respondent relied on these matters to form a view that the applicant was not a fit and proper person to hold a contractor licence. The application was refused. On 30 January 2018 the applicant applied for an Internal Review of the 4 January 2018 decision. On 7 May 2018 the respondent finalised the Internal Review by confirming the original decision to refuse the application. 2. The reviewer noted the applicant's explanations for the grounds arising from disciplinary matters in Queensland and that some of those matters are pending external administrative review in the Administrative Appeals Tribunal (AAT). In addition the reviewer noted that the QBCC insurance claim had not yet been finalised in the Supreme Court of Queensland. Whilst the reviewer conceded that these matters were not finalised and that this painted the applicant's claim in a slightly different light, significant reliance was placed on the earlier finding that the applicant had failed to disclose pertinent matters to the respondent. In addition the reviewer noted an ongoing Fair Trading investigation into unsatisfactory work matters and the alleged non-provision of an insurance certificate. 3. The reviewer concluded that on the basis of the adverse findings, and that the applicant (in the reviewers view) had not: provided any information which cause the delegate to be satisfied that he is a fit and proper person to hold the authority having regard to character, honesty and integrity, then the decision was affirmed. 1. The applicant stated that he was notified of the Internal Review on 7 May 2018 and as such his application for administrative review filed on 4 June 2018 was received within time. The matter had four directions hearings and mediation over the eight months prior to the matter being heard. The mediation did not resolve the matter between the parties but did result in some agreed narrowing of the issues in dispute. Importantly the parties agreed not to rely on or seek expert evidence concerning the 'substandard work' ground of the basis of the respondent's decision to refuse the licence. 2. The main thrust of the applicant's grounds for review concerned a view that the respondent had prejudged the outcome of various disputed matters and drawn inferences and made conclusions about the applicant's character and fitness and propriety to hold the relevant licence. The applicant characterised these matters in the following way: * The Respondent took into account an irrelevant consideration namely the cancellation of the Applicant's licence in Queensland in circumstances where the Applicant is challenging the $40,000 Queensland licence decision. * The Tribunal should not take into account nor consider matters yet to be determined between the Applicant and the Queensland Building and Construction Commission (QBCC) as those matters are matters for determination either by the Supreme Court of New South Wales at Sydney and / or by the District Court of Queensland at Brisbane. 1. Other grounds focused on matters concerning the review being a fresh hearing, and the Tribunal forming its own conclusions about the evidence and whether that equated to the applicant being a fit and proper person to hold the licence. The decision under review 1. The decision under review concerns the respondent's refusal of the applicant's application dated 26 October 2017 for a contractor licence in the category of general building work. It does not concern specifically the respondent's cancellation of the applicant's contractor licence on 16 October 2017 (ten days prior). However the basis and grounds for refusal are similar and appear to rely on the same findings of the evidence used to cancel the licence. It is therefore appropriate to examine the circumstances of both the cancelation and the refusal to determine whether the decision under review was the correct and preferable decision. The Legislative Provisions The Notice to Cancel 1. On 6 September 2017 the respondent issued a Notice to Cancel pursuant to s 22(1) of the HB Act. That section provides: 22 Cancellation of contractor licences (1) The Secretary must, subject to the regulations, cancel a contractor licence that authorises its holder to contract to do residential building work or specialist work, or both (whether or not it also authorises the holder to contract to supply kit homes for construction by another person) if: (a) a period of 30 days (or any longer period that has been agreed on between the holder of the contractor licence and the Secretary) expires during which there has not been a nominated supervisor for the contractor licence, or (b) the holder of the contractor licence is a partnership and (without the prior approval of the Secretary given for the purposes of this section) there is any change in its membership (otherwise than because of death), or (c) the holder of the contractor licence or, in the case of a holder that is a partnership, any partner of that holder, becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or (d) the holder of the contractor licence is a corporation and it has become the subject of a winding up order under the Corporations Act 2001 of the Commonwealth or has been voluntarily wound up, or (e) the holder of the contractor licence is a corporation and it has been deregistered under Chapter 5A of the Corporations Act 2001 of the Commonwealth, or (f) the holder of the contractor licence or, in the case of a holder that is a partnership, any partner of that holder, is convicted more than once in any period of 12 months of an offence under Part 6 (whether or not the offences are of the same or a different kind), or (g) the holder of the contractor licence fails to maintain professional indemnity insurance or a similar form of insurance taken out by the holder of the contractor licence for the period required under Part 6, or (h) the Secretary would be required to refuse an application for a contractor licence by the person. 1. The respondent relied on the provisions in s 22 (1) (h) whereby they received information that would result in the applicant being refused a contractor licence. This was because Fair Trading was advised that the applicant's individual authority was cancelled in Queensland in 2014 and the related Company was suspended from trading. The decision to refuse the licence 1. The respondent relied upon s 20 of the HB Act and in particular s 20 (1) (a) and 20 (1A). The section provides: 20 Issue of contractor licences (1) The Secretary must refuse an application for a contractor licence if: (a) the Secretary is not satisfied that the applicant is a fit and proper person to hold a contractor licence, or (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 (b) the applicant is a mentally incapacitated person, or (c) the applicant is disqualified by this Act or the regulations from holding a contractor licence, or (d) the Secretary considers that a close associate of the applicant who would not be a fit and proper person to hold an authority exercises a significant influence over the applicant or the operation and management of the applicant's business. 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 Secretary is to consider whether the applicant is of good repute, having regard to character, honesty and integrity. 1. The respondent relied on the following evidence as grounds for their finding that the applicant was not a fit and proper person. * Evidence of a failure to disclose events or occurrences that would adversely affect his licence renewals in 2012 and 2015; * Winding up of Companies of which the applicant is concerned; * The circumstances of the appointment of a controller to Music Corp Pty Ltd (Music Corp) a company the applicant is associated with; * The applicant's building history in Queensland; * Breach of s 92 of the Home Building Act 1989 (NSW) and the circumstances surrounding that breach; * Suspension of the licence in Queensland for Yong Construction Group Pty Ltd (Yong Construction). The Issue to be decided 1. The primary issue before the Tribunal in this application is whether the applicant is a fit and proper person (on the available evidence before the Tribunal) to hold a contractor licence. Applicants written submissions 1. The applicant's submissions on the circumstances of the Queensland Building contract were as follows. The contract stipulated (amongst other things) that the builder was to be paid instalments at certain intervals under the contract. Because the owner did not pay the builder the monies owing under the contract, and also refused to provide instructions where the plans contained ambiguities and mistakes, the builder repudiated the agreement and terminated the contract by ceasing work on the construction. 2. The applicant submitted that there were no defects in respect of any of the building work that was done under the contract. The defects issue arises solely because of the incomplete nature of the work. Because the builder had terminated the contract, he was no longer liable to perform or complete the works and as a result was not professionally liable for any subsequent notices or defects concerning anything (other than work that he had performed). 3. The applicant submitted that Fair Trading's reliance on the fact that the owner had chosen to terminate the contract prior to the builder, did not of itself mean that the owner's termination was lawful, but rather that it was an unlawful termination (as there were no grounds open to the owner), and Fair Trading had no basis to make such a finding against the applicant in the absence of evidence. 4. The owner then obtained quotes to complete the construction work (started by the applicant) and made extensive changes to the construction. The applicant submitted that this approach was within the owner's purview. However when the owner then sought to invoice and recover from the builder (the applicant) then this was submitted as impermissible as the builder was not liable for any work that was not covered under the contract. 5. The applicant submitted that the Queensland owner should have commenced proceedings against him to recover any money that he believed that the applicant owed him. However what had taken place in Queensland was not a civil action against the applicant through the Courts but a statutory claim on the home warranty scheme. The owner made a claim to the Queensland Building Services Authority (QBSA) which at that time administered the insurance scheme applicable to Queensland residential building work. QBSA made a payment to the owner, which the applicant submits is contrary to the (legal) position that that the owner had no claim because it was the owner's fault that the contract was terminated. 6. The applicant submitted that the QBSA relied on s 71 of the Queensland Building and Construction Commission Act 1991 which provides for recovery of a paid claim from the builder / contractor. 71 RECOVERY FROM LICENSED CONTRACTOR ETC. (1) If the commission makes any payment on a claim under the statutory insurance scheme, the commission may recover the amount of the payment, as a debt, from the building contractor by whom the relevant residential construction work was, or was to be, carried out or any other person through whose fault the claim arose. 1. The applicant maintained that no amount should have been paid on the claim by the QBSA to the owner as the owner was at fault in respect of the contract. The applicant submitted that it (his company) had been adversely affected by the QBSA decision to pay the claim and was prevented from exercising his rights to rectify this matter due to the manner in which the Queensland Courts had interpreted s 71. The applicant referred to a case concerning the example referred to in their submissions (Samimi & Anor v Queensland Building and Construction Commission [2015] QCA 106). That case found for the appellants (one of whom is the applicant in these proceedings). Whilst it did not resolve the Queensland insurance issue in totality, it found that there was a factual dispute about how much the owner had paid the builder ($220,000 or $700,000) and that such dispute which had not been addressed by the primary judge adequately to proceed to determine the matter without a hearing. The Queensland Court of Appeal noted that had the judge determined that the lesser amount of $220,000 had been paid to the builder, then no amount would have been payable under the insurance scheme. ($400,000 had been paid under the scheme). 2. When addressing the issues of whether s-71 allowed the fact finder to go behind the payment made under the scheme, the Court of appeal in Samimi at [36]-[38] observed: [36] Whilst Fraser JA, in Namour, found the matters sought to be raised by way of defence were not justiciable under s 71(1) of the Act, that conclusion occurred in circumstances where there was "no reason to doubt that each claim was paid in accordance with the terms of the policy".[10] A different conclusion may follow where there is reason to question whether the payment was made in accordance with the terms of the policy. [37] Gotterson JA, in Queensland Building and Construction Commission v Lifetime Securities (Australia) Pty Ltd & Anor[11] also recognised that a matter of relevance to a recovery action under s 71(1) of the Act may include if the payment was not a valid payment under the scheme. [38] Contrary to the respondent's submission, the consideration of whether a payment sought to be recovered under s 71(1) of the Act was a valid payment under the scheme does not merely raise an element of the respondent's administrative processes anterior to that payment. That issue raises whether the payment was made "on a claim under the insurance scheme", a condition for recovery of the payment under s 71(1) of the Act. 1. The applicant submitted that the Court of Appeal case was a victory for the applicant in that the Court found that the applicant was not liable to make any payment to the owner, and the QBSA had no basis to make a payment to the owner. 2. The applicant also submitted that Fair Trading relied heavily on the circumstances that were said to have arisen in Queensland as the main basis for refusing the licence application. The applicant takes issue with the fact that the respondent made their decision, without first awaiting the outcome of AAT and Supreme Court proceedings which the respondent was aware of at the time of their decision. 3. The applicant made various submissions about the other grounds relied upon by the respondent. Essentially those submissions primarily linked back to the original disputes in Queensland and outline how nearly all of the contentious issues arise because of matters relating to the Queensland issues. The applicant submitted that but for the adverse action taken in Queensland, the applicant would not have been refused insurance (a matter relevant to the New South Wales grounds relied upon by the respondent). Action was only taken to wind up the relevant companies because of a judgment debt which the applicant says he is not liable for, and in any event proceedings are on foot to quash any enforcement action. 4. The applicant also submitted that many of the remaining grounds relied upon by the respondent associated with a failure to disclose, are irrelevant. The applicant submits that in each instance he was not a Director of the relevant Company and the Companies were wound up erroneously on the basis of a debt for which the Company was not liable. 5. On other grounds the applicant submitted that the disciplinary history (in Qld) was irrelevant as it related to matters that were too far in the past, and Fair Trading was not cognisant of the internal nuances and factual disputes giving rise to various claims, grievances and counter claims. The $400,000 purported debt is a matter currently the subject of litigation and as such it should not have been considered at this time in refusing the applicant's application. Applicant's evidence and submissions at hearing 1. The applicant's Agent submitted that at the time of the problems with the owner in Queensland, Mr Samimi was working as a builder on a contract for progress payments. The payments ceased and Mr Samimi 'walked away' from the job. The owner was annoyed at this action, obtained quotes to continue with the work and ultimately went to the QBSA who paid him and attempted to recover the payments from the applicant's company. 2. The applicant submitted that the respondent relied predominantly on the applicant's Queensland conduct as the reason for findings which led to the refusal of the licence application in New South Wales. The applicant submitted that there is no evidence for such findings by the respondent, as the Queensland matters do not provide evidence of unlawful conduct. The Queensland matter inhibited the applicant's ability to obtain insurance, however the relevant owner (of the New South Wales job) was aware of this situation and was content for him to proceed with the job and encouraged him to proceed. 3. The applicant's Agent submitted that on this insurance issue he is technically at fault and acknowledged this aspect at hearing. However the Agent submitted that a more appropriate response (rather than refusing the Licence) would have been to impose a fine or the requirement of further training. 4. The applicant also referred to the recent case of Samimi v Djamshidi [2018] NSWSC 1944 whereby the applicant and co-director sought equitable relief concerning the $400,000 claim against them. The Court dismissed the plaintiff's application by way of summary dismissal as there were no real prospects of them obtaining the relief sought because the equitable claim is misconceived. At [35] – [36] the Court concluded: 35. The Statement of Claim in these proceedings does not propound any such common law claims. Whether it would be open to the Samimis to bring such claims by way of defence or cross-claim in the District Court proceedings does not need to be determined in the current application. It is sufficient to say that, in my view, the equitable claim pleaded in this case based on an alleged "underhand bargain" is misconceived. 36. The Samimis' Statement of Claim was filed on 8 December 2017, more than six years after the determination by QCAT and the payment of $400,000 in question by the QBSA to Mehran. The defendants contended that lapse of time meant that the Samimis' cause of action was statute barred. For the Samimis, this was disputed, and fraudulent concealment was also alleged. Given my earlier conclusions, it is not necessary to consider these arguments. 1. In addition the applicant submitted that the lapse of insurance (commencing and continuing one job without the requisite insurance), was a matter only concerning s 92 of the HB Act, not matters relating to the applicant being as holder of or applicant for a contractor licence. Section 92 provided for monetary penalties that can be imposed on breaches of failing to have insurance cover for building work performed under a contract. The Tribunal notes that the penalties rang up to $110,000 for corporations and $22,000 in other instances such as individuals. 2. In evidence at hearing the applicant adopted his signed statement of 21 August 2018. The applicant was the nominee for Spectrum (a licensed builder) which contracted to build the two Queensland properties. The applicant set out the history of the disputes, liquidations and legal proceedings in QCAT and the Queensland Courts arising from the Spectrum building issues. The applicant's statement sets out the details of an alleged impropriety in the QBSA / QBSC in respect of the owner, and which in part formed the basis of the equitable claim before the Supreme Court in NSW. 3. The applicant's statement asserts consistent with his submissions that any decision to cancel the licence (and refuse) the licence is premature. This claim is made on the basis that the related legal proceedings have not reached their ultimate conclusion and as a result any determination arising is premature. 4. In oral evidence the applicant set out some further details of the Queensland construction. The applicant and his wife paid out 95% of the sub-contractors. One sub-contractor did take them to Court over a $5,000 debt and the company was wound up. The applicant said that he did not respond to the termination notices as he received legal advice that the contract was already terminated – having been terminated by both parties at the same time. The client proffered a list of defects and that was the basis he terminated. The applicant gave evidence that he advised the owner that there were no defects and in any event would not attend to the matters as they would not pay him. 5. The applicant's opinion was that the client invalidly terminated that contract and then put in the claim with the QBSA. The applicant gave evidence that the Queensland Parliament dissolved the QBSA and set up the Queensland Building and Construction Commission in its place. The applicant's evidence was that this was in response to QBSA being involved in poor practices and potential malfeasance in approving claims. 6. The applicant was asked by his Agent about the insurance issues. His evidence was that he did no building work in Queensland without the relevant insurance, but had done work in New South Wales without insurance. The applicant re-iterated the circumstances as set out in his written material and said that he regretted not getting insurance. The applicant referred to two fines being $10,000 for the company and $5,000 for the individual. He maintained that because of the Queensland legal issues, that caused a problem and delay with him obtaining insurance in New South Wales. 7. In cross examination the applicant gave evidence that he was in communication with the insurance broker almost every day that the insurance cover was delayed. His evidence was that in Queensland insurance is obtained relatively quickly over the telephone. He asked the other builder to start the job after a conversation with the owner. 8. The applicant was taken to the Statement of Stephan Carter received as Exhibit 'R-2'. The statement refers to a job that Mr Carter contracted with Yong Constructions for building works totalling approximately $144,000 in 2017. At appendix 'D' of the statement is an email from a company of the applicant (Yong Constructions) to the client Mr Carter dated 26 February 2017. The applicant said that email referred to extra work including replacing a timber door, painting and other work that was not part of the substantial job being the $144,000 job. 9. The applicant was also asked about the Licence Renewal Form dated 3 October 2012. The applicant was asked whether he had ever seen it before and he advised that he had only seen it arising from the documents served on him by the respondent in these proceedings. He was otherwise unaware of the document. The application includes a declaration that there have been no events or occurrences since the last application affecting (amongst other things) his eligibility to hold the licence. 10. The applicant was asked about the removal of the liquidation order / bar against the company. His evidence was that from memory he believed that it was removed quite quickly but was told by his bank that it was not removed until 8 months later. This issue related to what the applicant said he believed to be a proper statement of the facts as applying at the time that he completed the relevant applications and declarations. 11. The Tribunal questioned the applicant in accordance with the provisions of s- 38 (1) Civil and Administrative Tribunal Act 2013. The applicant was asked about the QBCC process initially relating to the claimed defects by the Queensland owner. The applicant said that those defects were not valid but did identify two separate or further defects relating to the stair height. 12. The applicant advised that he had disclosed the issue of his working without insurance, and that in his opinion this is not a serious matter but rather one warranting a fine, and that such a fine had been issued. 13. Oral submissions at the conclusion of the evidence addressed the perceived injustice and heavy handy nature of the respondent's actions. The applicant submitted that it was manifestly unreasonable to deny the applicant his right to earn a living. 14. In addition submissions were made concerning the general principles of administrative law including that a decision maker must not act without evidence. The applicant's view was that no evidence was offered or available. 15. In closing the applicant's Agent referred to the principle in the case of Bhardwaj (Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11). The Tribunal could follow the factual history, that the Licence was cancelled, a fresh application was made and then the application was refused. In the applicant's position the submission appeared to focus on an invalidity of the respondent's submissions with the main argument being that it was not open to the respondent to rely on various events, due to their lack of currency and relevance, and that some aspects of the decision were based on premature determinations on the facts by the respondent. 16. The submission appears to suggest that in conducting an administrative review the Tribunal should correct the ultimate decision of the respondent which was characterised by the applicant as being erroneous. Respondent's Submissions 1. The central prong of the respondent's submission appears to relate to the necessity and obligation to make full and frank disclosures to the regulator. At Paragraph [32] of the respondent's outline of submissions the respondent submits: 32. The reasons put forward by the Applicant do not diminish the responsibility to make full and frank disclosure to the Respondent at the time of his renewals in 2012 and 2015. It is submitted that the winding up and the circumstances leading up to that event were matters the respondent was required to assess in making a determination under the HBA. 1. The respondent agreed that the evidence indicates that the matters involving the $400,000 debt arising from the Queensland work remains pending with legal proceedings not being finalised. However the respondent submitted that the winding up of the Company should have been disclosed because it arose in circumstances where the applicant was a Director. 2. The respondent submitted that the eventual disclosure of some of the matters (in response to the respondent's actions) indicate that the applicant had sufficient knowledge of the relevant matters and therefore was in a position to disclose them (when requested on the forms). 3. The respondent submitted that any of the responses provided by the applicant by way of explanation for the failure to disclose matters are unfounded. References to the requirements of the forms were claimed to not indicate disclosure requirements. However the respondent submitted that the relevant forms provide a clear obligation on the applicant to disclosure the relevant information. The respondent submitted that the applicant was required to take a deliberate step in declaring that there were or were not matters to disclose. 4. In respect of matters relating to the applicant's honesty and integrity the respondent submitted that the applicant had not fully disclosed matters in these proceedings. They submitted that the information supplied concerning the Carter job in NSW was incomplete, whereas by investigating the matter the respondent had obtained an affidavit from Mr Carter (received without objection as Exhibit 'R-2') which provided a full set of emails and text exchanges between the parties to the contract and the third party company that held insurance. 5. The respondent submitted that the applicant is not a fit and proper person to hold a licence, based on the totality of the evidence. This position was unchanged by the applicant's evidence and submissions at hearing. 6. The respondent referred to the cases of Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (Bond), as a lead case on determining some of these questions as to fit and proper. Bond referred to such a decision as being a 'value judgement … by the decision maker..' . The respondent submitted that such a process (of determining fit and proper) is an imprecise description and derives its meaning from 'its context, from the activities in which the person is or will be engaged and the ends to be served by those activities' . 7. Consistent with the general principles of determining fitness and propriety the respondent referred to the three characteristics of character, honesty and integrity. Reference was made to the case of Hughes and Vale Pty Ltd v New South Wales (1995) 93 CLR 127. 8. The respondent referred to a number of other cases in their evidence and submissions as relevant to the question that the Tribunal must determine. The respondent referred in particular to the case of Bournelis v Building Services Corporation Commercial Tribunal of New South Wales, unreported 9 June 1995 in addressing the consumer protection aspects of the building licencing regime in NSW. In Bournelis the Tribunal stated: ".. the public must have confidence in builders both from the perspective of standards of work and honesty .. they should be able to assume that builders adhere to the proper standards or trust and honesty." 1. The respondent also submitted in written submissions that: ..that there are real concerns as to the honesty and integrity of the Applicant. There is sufficient material before the Tribunal to conclude that the Applicant has not been candid in his dealings with not only the Respondent, but also in the preparation of his material before the Tribunal and in his dealings with Carter and the independent certifier in the Chalmers Street works. The examples of non-compliance with the QBCC Notices to Rectify demonstrate the Applicant's conduct has not abated over time and demonstrate conduct consistent with a propensity to not abide by any regulatory regime in place. Consideration 1. It is clear that in these proceedings the applicant seeks to illustrate and explain his conduct in a manner which attempts to support and otherwise justify his actions. The disclosures by the applicant have all been reactive to the inquires of the regulator (respondent), and have sought to provide a legal defence to certain actions - by way of valid repudiation and termination of the Queensland construction contract, or because certain legal avenues and remedies remained in train and were not finalised before the relevant courts and tribunals. 2. Much of the focus in the evidence and submissions, and the conduct of the hearing went some way to trying to demonstrate the background and developments to the Queensland contractual, regulatory and litigation matters. Whilst much of this work did go part way to lessening the weight that earlier preliminary findings might have on the applicant's case, in my view the real issue to determine about those matters was why were they not disclosed at the relevant times to the New South Wales regulator (Fair Trading). 3. I note that s 20 (1) (a1) of the HB Act refers to matters in s 33B and 33 C of the HB Act. Those sections refer to the additional requirements for various licences including those held and subsequently sought by the applicant. The provisions relate to adverse outcomes (relevantly) in the nature of judgment debts, liquidations, insurance claims in addition to other items not strictly relevant to the evidence in these proceedings. 4. Whilst these matters (which have been referred to as the Queensland matters) were highly contested by the applicant, the position remains that had the respondent been made aware of those matters, they could have been considered (either with or without further inquiries) and if appropriate, discretion applied as and where applicable. The exercise of any such discretion in the applicant's favour might have arisen from a consideration of the decision and findings in Samimi & Anor v Queensland Building and Construction Commission [2015] QCA 106. Whilst making no finding on this point it may have been that with full disclosure and submissions as to weight the respondent may have arrived at a different position in respect of the applicant. Because of the non disclosure by the applicant such a situation where the applicant worked through the issues with the respondent di not eventuate. 5. However of greater weight appears to be the more recent matters relating to the New South Wales work. I have not set out all of the evidence of the Carter affidavit, and I note that only some of the evidence is reproduced in these reasons. However my concern is that when exhibit 'R-2' is contrasted with the applicant's evidence at Exhibit 'A-3', the evidence of the respondent is more complete and as a result of greater weight. This is because the applicant's limited evidence omits various items of evidence (in the nature of communications between the parties to the contract) that showed the totality of the issues that the parties were seeking to address. 6. The respondent's evidence includes more evidence of the applicant's own conduct concerning the lack of insurance, the somewhat 'quick fix' steps and attempts to make the job legally compliant by retrospectively arranging cover from a builder for which the owner had no contractual arrangement, as well as matters about the legitimacy of deficiencies within and subsequent amendments to the contract. There is also the issue borne out by the certifier's own evidence as to the poor quality of the applicant's work (including supervision). 7. The hearing dealt with these matters in much shorter form than the Queensland matters. Notwithstanding that position, the applicant was clearly on notice of the respondent's evidence on this point over a month prior to the hearing and did not seek to examine the deponent or test the evidence further. 8. The applicant's written evidence does not go to the pertinent matters of the Chalmers Street job and the insurance issue, but in my view provide many items of evidence concerning what might be considered a commercial or contractual dispute between the parties, about extras, specification, payments and timing. With respect these were never the issues of significance in the decision under review and I note the respondent's submission that the issue of poor workmanship is only one aspect of the scrutiny and concern about the Chalmers Street job. However I do not make any finding that the applicant was trying to obfuscate the real evidence on the Chalmers Street matter, merely observing that his evidence only tells part of the story. Relevant evidence which would have been available to him (such as sent or received texts and emails) but was not provided where it was contrary to the position that the applicant was maintaining in respect of the Chalmers Street job and the lack of insurance amongst other issues. 9. Again I note that the applicant was clearly on notice about these discrepancies and without inferring a Jones v Dunkel type issue and subsequent finding, I reiterate that there was no attempt by the applicant to test the Mr Carter's evidence and the other matters relating to the Chalmers Street job. Fit and proper considerations 1. As mentioned earlier in these reasons, the respondent referred to the lead cases on this issue. 2. In Hughes and Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28 at paragraph 9 sets out the considerations which make up the meaning of the expression. Dixon CJ, McTiernan and Webb JJ said at paragraph 9 that: 9. The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. 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: "honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it" - Coke. 1. The Tribunal was also taken to the case of Australian Broadcasting Tribunal v Bond [1990] HCA 33 where Toohey and Gaudron JJ at paragraph 36 of the decision addressed the issue. 36. The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, 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. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. 1. As is usually the case, the regulator's position is that the import of these cases is that the Tribunal should note that the notions of 'fitness' etc. take their meaning from the context. 2. I note the case of Ng & anor v Commissioner for Fair Trading, NSW Office of Fair Trading & anor [2007] NSWADT 259 is relevant in showing that a lack of consciousness that an applicant has for their actions is a relevant consideration. At paragraph 71 the Tribunal observed: (Emphasis added) 71 In Director-General, Department of Fair Trading v. Cohen [2000] NSWFTT 3 (cited in Younan [2007] NSWADT 170 at [26]; and Harb [2007] NSWADT 175 at [60]) the Fair Trading Tribunal outlined a series of factors which might be relevant to the assessment of an appropriate penalty. They were: - the nature, width and extent of the contraventions - the loss or damage and prejudice in consequence of the contraventions - the circumstances in which the contraventions took place - whether the licensee has been found to have engaged in any similar conduct - the presence of fraudulent or dishonest intent and deliberation on the part of the licensee - the extent of carelessness or wilfulness of the conduct - the efforts made to correct the situation and what measures have been taken by the licensee - what consciousness the licensee (a) had (b) displayed, of its obligations under the relevant statute and to the owners - the effect upon the licensee - antecedents - attitude, building history and future compliance - the penalty range. 1. In the current matter rather than apply a penalty, the respondent took the decision to cancel the applicant's licence. The applicant has always argued that this was a harsh outcome and the respondent could have always applied a lesser penalty. However I note again that the decision to cancel the licence is not the decision under review. 2. The respondent raised other issues which I will summarise as findings that the applicant engaged in financial brinkmanship in respect of his dealings with his financiers and other issues concerning his failure on some audits and resubmitting matters to the relevant regulator. In my view it is not necessary to go in to the detail of these matters as they were not strongly relied upon in the respondents total 'case' against the applicant, nor were they robustly rebutted by the provision of evidence by the applicant. 3. In making the observation above I note again that the decision under review and the arguments of the parties focused predominantly on the Queensland matters and issues arising from them, as well as the New South Wales Chalmers Street matter which itself was centred on the lack of home warranty insurance issue. 4. I have carefully considered all of the material submitted by the parties in these proceedings. It is clear from the evidence and submissions that the applicant was ultimately responsible for the submission of his renewal applications which on the face of the record failed to disclose certain matters which the applicant was well aware of. 5. In my view as one of the requirements to be considered fit and proper includes knowledge, I have difficulty in accepting the submission that the applicant genuinely believed that the matters now raised by the respondent did not require disclosure or notification in the renewal declarations. 6. The provisions of the Legislation require an applicant for the relevant licence to also be conversant with the grounds for refusal or cancellation in satisfying themselves of the types of matters necessary for disclosure. This obligation applies to all regulated occupations that provide a system of licencing or renewal of certification at a regular interval set by either Legislation or Regulations. Further consideration and findings 1. The case of Ng as set out at paragraph [74] (above) indicates that a relevant consideration is the consciousness the licensee first of all had or possessed and second what he displayed concerning his obligations both under the relevant statute and to the owners. 2. In this regard the evidence and material before the Tribunal in respect of the Chalmers Street matter supports the finding that the applicant is lacking is certain aspects of his knowledge, so much so that his fitness and propriety remains somewhat diminished from the level required of such a tradesperson. Whilst the current evidence may never settle the issues about the quality of the work on the Queensland jobs, these matters in combination with other concerns and evidence in support led to the first decision to take significant disciplinary action under s 62 (f) of the HB Act. 3. Section 62 sets out the nature of disciplinary action. 62 Disciplinary action that may be taken by Secretary If, after compliance with this Division, the Secretary is satisfied that any ground on which disciplinary action may be taken against the holder of an authority has been established in relation to the holder, the Secretary may do any one or more of the following: (a) determine to take no further action against the holder, (b) caution or reprimand the holder, (c) make a determination requiring the holder to pay to the Secretary, as a penalty, an amount not exceeding $11,000 (in the case of an individual) or $50,000 (in the case of a corporation) within a specified time, (d) vary the authority held by the holder, by imposing a condition on the authority, including a condition requiring the holder to undertake a course of training relating to a particular type of work or business practice within a specified time, (e) suspend the authority for a period not exceeding its unexpired term, (f) cancel the authority, (g) disqualify the holder, either temporarily or permanently, from being any one or more of the following: (i) the holder of any authority, or any specified kind of authority, (ii) a member of a partnership, or an officer of a corporation that is a member of a partnership, that is the holder of an authority, (iii) an officer of a corporation that is the holder of an authority. 1. However, the formal action under s 62 relates to a preliminary albeit significant decision, being the cancelation of his existing licence. As previously stated that matter is not the decision under review. 2. The respondent has determined to refuse the contractor licence application on the basis that the applicant is not a fit and proper person to hold the licence. Having regard to the totality of the evidence, the objects and purpose of the HB Act as set out in the reading speech as referred to in the respondent's material, and the requirements concerning fit and proper as set out in the cases stated above, I find that the decision of the respondent was open to them. 3. In addition having regard to the evidence of the respondent in particular in the unchallenged evidence in the Carter affidavit, I find that Mr Samimi is currently not a fit and proper person to hold a contractor licence or authority under the HB Act. In making this finding I reject the applicants evidence and submissions at [32] and [41] above. 4. I also find that the submission that the principle in Bhardwaj is open to the Tribunal is misplaced. There is nothing incomplete about the respondent's determination that requires revisiting or completing. If anything the evidence in Exhibit 'R-2' seems determinative in establishing separate grounds to reach the conclusion that the respondent did. The fact that there might be other factors remaining in abeyance is in my view irrelevant if sufficient evidence already exists to make the requisite findings and subsequent decision. 5. It may be that the applicant might be eligible to reapply for a contractor licence at some time in the future when he can demonstrate that he is able to meet his statutory obligations concerning disclosure, and engage in further training or such other relevant matters as the regulator requires. I note that various time frames are referred to in the disclosure and disciplinary provisions of the HB Act. Conclusion 1. For the reasons set out above, the Respondent's decision that Mr Samimi is not a fit and proper person to hold a contractor licence under the HB Act will be affirmed. Orders 1. The decision of the respondent 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: 06 June 2019