The Respondent says that the Applicant was a shadow director of Onsite and that he used his de facto partner. In support of this contention, the Respondent relies on a number of records contained in the section 58 material from which it is said that the inference can be drawn that the Applicant had influence over Onsite's operation and management. The Respondent contends that the Applicant:
was a "close associate" of Onsite,
was not a fit and proper person to hold an "authority", and
exercised a "significant influence" over Onsite and the operation and management of Onsite's business.
As such, if this information had been known at the time Onsite's licence application was determined, the application could have been refused: Subsection 56(k) of the Act.
The Respondent points a significant amount of material which it says show that the Applicant exercised significant influence over Onsite. The Respondent identified two categories of material in support of that submission: Telephone records and banking records. With respect to the phone records its supplementary submissions noted:
(a) between 1 January 2021 and 5 July 2021, the total calls and SMS messages from Mr Aboukalam's mobile … 872 to Onsite's employees was 7,226;
(b) between 1 February 2021 and 5 July 2021, the total calls and SMS messages from Mr Aboukalam's mobile … 939 to Onsite employees was 5,684;
(c) by comparison between 1 February 2021 to 23 June 2021, the total calls and SMS messages from Ms Nguyen's mobile … 593 to Onsite employees was 296.
The Respondent submits that the volume of mobile phone calls to Onsite's employees made from the Applicant's mobile phones (i.e. nearly 13 thousand calls) cannot be attributable to his role as an employee. The Respondent contrasts this volume with the 296 calls made by Ms Nguyen on her mobile phone in the same period.
The Respondent also noted that the Applicant continued to own the mobile phone numbers advertised on Onsite's website for its business.
With respect to the banking records the supplementary submissions noted:
(a) Mr Aboukalam holds or controls two AMEX accounts numbered …;
(b) between 5 July 2021 and 12 August 2021, Onsite made twelve (12) direct payments to these AMEX accounts totalling $159,244.14;
(c) between 6 April to 28 June 2021, Onsite made 22 indirect payments to these AMEX accounts totalling $350,460.09 via Plumbcorp ANZ Account …
(d) [the identified] ANZ account number … is in the name of Mr Aboukalam;
(e) on 15 August 2021, Onsite transferred $50,000 to Mr Aboukalam via Ms Nguyen Commonwealth Bank account No. …;
(f) on 28 May 2021, Onsite transferred $97,000 to Ms Nguyen's bank account and $12,400 of those monies were used to pay for building work on Mr Aboukalam's property at … Oyster Bay.
The Respondent infers that the banking transactions were directed by the Applicant.
The Respondent submits that these records support the conclusion that Onsite was a vehicle used by the Applicant to circumvent the disciplinary decision against him. That conduct indicates that he is does not meet the "character, honesty and integrity" requirement in section 25(1A) of the Act. Further, the Respondent submits that any conditions which could be placed on a tradesperson certificate are unlikely to be sufficient to address the Respondent's concerns with respect to the Applicant's character.
The Respondent submits that the decision to refuse to grant the Applicant's tradesperson certificate application should be affirmed.
[2]
The Applicant's case.
The Applicant contends that there is no proper basis for the refusal of the tradesperson certificate application and therefore it should be granted.
It is further submitted that there is nothing in subsections 56(k) or 22(1)(d) of the Act that proscribed conduct by the Applicant. Those provisions provide no basis for the submission that the Applicant had significant influence over Onsite. For the same reason it is submitted that there was no proper basis for the cancellation of Onsite's licence on the basis of the Applicant having significant influence over Onsite. It is not a ground on which the Applicant application for a trade certificate can be refused.
[3]
The Applicant's engagement with Onsite
It is submitted that the only available evidence of the nature of the Applicant's engagement with Onsite is that provided by Onsite. The Applicant accepts that the information provided by Onsite shows:
The Applicant received a wage from Onsite after 5 February 2021.
Whilst employed with Onsite, the Applicant was not engaged in any type of management or supervisory role.
The Applicant was employed as a service and support coordinator. No written contract of employment exists.
The Applicant reported directly to the Service Coordination Manager, Christopher Lennon, and less commonly, the Director of Onsite, Sang Nguyen.
The Applicant worked on a fulltime basis primarily from home.
Four of Onsite's employees would take phone calls from customers and accept jobs for Onsite.
The Applicant's role was confined to scheduling those, already accepted, jobs. In that role, the Applicant was in contact with Onsite's plumbers for the purpose of tracking their availabilities for whatever might be the "next job".
The Applicant ceased to be involved with Onsite in any way; because of receipt of the Notice.
The Respondent did not lead evidence to show that this description of the Applicant's duties that was provided by Onsite is inaccurate. The Applicant submitted that the Respondent's disbelief about the accuracy of the description of the Applicant's duties is not evidence as to what the Applicant's duties were.
[4]
The telephone calls and money transfers
The Applicant does not dispute the Respondent's records with respect to the quantity of telephone calls between the Applicant and employees of Onsite. Nor does he dispute the records of money movements said to be from Onsite to the Applicant. The Applicant accepts that these matters might have justified a fair-minded investigator making further inquiries about the Applicant's role at Onsite. It is submitted that further inquiries could have been directed to (a) the content of the calls relied upon, and (b) the internal arrangements in Onsite. However, the Applicant says that those further inquiries were not made.
It is submitted that the quantity of phone calls is explained by the Applicant's scheduling role. The Applicant says that the number of calls is not evidence of decision making of the requisite character needed to show that the Applicant had a significant influence over Onsite.
With respect to the money transfers, the Applicant submits that there is no evidence that the Applicant made decisions in regard to the banking transactions that the Respondent has identified or to show the effect of the transactions on Onsite's financial standing. It is further submitted that on their face, the transactions were decided upon by Ms Nguyen either as the director or for herself personally.
It is common ground that Onsite held an Authority in the period from 5 February 2021 to 2 December 2021. It is also common ground that in the period from 5 February 2021 to 4 December 2021 the Applicant was disqualified:
"... from being an officer of a corporation that is the holder of any Authority".
The Applicant points to the dictionary contained in section 9 of the Corporations Act 2001 (Cth) for the definition of an "officer" of a corporation. The definition is set out above. It is submitted that there is no evidence that the Applicant was ever a director or secretary of Onsite. Further, there is no evidence that Ms Nguyen was accustomed to act in accordance with the Applicant's instructions.
It is further submitted that the evidence of telephone calls and money transfers, considered separately or together, do not meet the essential elements of the definition of "officer". It is submitted that the evidence does not establish that the Applicant made or participated in decisions that affected "the whole, or a substantial part, of" Onsite's business, or that he had the capacity to affect Onsite's business financial standing.
Accordingly, it is submitted that there is no basis for a conclusion that the Applicant did not comply with the disqualification imposed on him.
Counsel for the Applicant submitted that, if the Tribunal finds that conditions are warranted, the Applicant will accept as conditions of any trade certificate that might be granted to him:
1. "That he not accept employment with, or engagement by, Sang Nguyen or any company of which she is a director, or with or by any partnership of which she, or a company as just described, is a member"
and
1. "That he provide to the Commissioner for Fair Trading the details of any proposed employer at least twenty-one (21) days prior to the proposed commence of employment".
[5]
Discussion
The background to this matter is not in dispute. The Applicant seeks a trade certificate so that he can work as a plumber. The Respondent contends that the Applicant is not a fit and proper person to hold the tradesperson certificate that he is seeking because of the outcome of disciplinary proceedings and because of his conduct since those proceedings.
The issue for determination is whether or not the trade certificate should be granted.
The Respondent has lodged an enormous amount of material which primarily relates to the disciplinary proceedings which resulted in a number of outcomes. Those outcomes included the cancellation of the Applicant's licence and his disqualification from being an officer of a corporation that is the holder of any authority under the Act for a period of ten months. That disqualification was effective from 5 February 2021.
The Respondent also lodged material that relates to the disciplinary proceedings related to Onsite and the cancellation of Onsite's licence in December 2021. The Applicant's de facto, Ms Thu Sang Nguyen, was Onsite's sole director and secretary. Onsite's licence was cancelled because of its relationship with the Applicant.
The Applicant's disqualification is not in dispute. Nor is it in dispute that the Applicant was employed by Onsite. However, the parties do not agree in regard to the role that the Applicant played with Onsite. The Respondent contends that the Applicant is a "close associate" of Onsite and that he undertook that role as means of circumventing the disqualification. The Applicant contends that he was employed by Onsite as a service and support coordinator and that he was not engaged in any type of management or supervisory role.
The Respondent does not accept that characterisation of his role with Onsite. As Ms Nguyen's de facto partner, the Applicant was a "close associate" of Onsite. The Respondent contends that he was also a shadow director of Onsite and that he continued to work in that capacity whilst disqualified.
The Respondent's material comprises over 2,500 pages of documentation. I have set out above a very brief overview of the material on which the Respondent relies. The essence of the Respondent's case is that the material demonstrates that the Applicant had significant influence over Onsite or its business during the period of his employment. The Respondent contends that the material also demonstrates the Applicant's disregard for the conditions imposed upon him as a result of the disciplinary action taken against him.
I agree with the Respondent that the material on which it relies shows that the Applicant played a significant role in Onsite's business during the period of his employment. However, the fact of his relationship with Ms Nguyen, his de facto partner, blurs the boundaries of where his role with Onsite and his relationship with Ms Nguyen overlap.
In my view, it is probable that Ms Nguyen would have been aware of the Applicant's circumstances, and those of Plumbcorp, because of her as de facto relationship with the Applicant. It is possible that Onsite merely took advantage of the commercial opportunities that became available once the Applicant's licence was cancelled with effect from 5 February 2021.
The cancellation could have provided Onsite with an opportunity to take advantage of the circumstances that existed in relation to Plumbcorp. For example, the availability of business premises as a result of the demise of Plumbcorp. However, this is a matter of conjecture.
Nevertheless, I do not accept that the only explanation for the matters to which the Respondent has referred is that the Applicant was performing the role of a shadow director of Onsite. There is a plausible alternative explanation to the Respondent's assertion that the Applicant continued to carry on and to run his business through Onsite.
I accept that Onsite operated from the former business premises of the Plumbcorp. I also accept that Onsite used banking facilities established by the Applicant and Plumbcorp. However, it is my view that the relationship between the Applicant and Ms Nguyen could provide an alternative plausible explanation for much of Onsite's conduct. Neither the Applicant nor Ms Nguyen gave evidence, so I have not had the benefit of an explanation or clarification for those matters.
I also accept the Respondent's evidence in relation to the phone calls. However, I do not agree with the Respondent that the quantity of phone calls inexorably indicates the Applicant's control of Onsite and/or the operation and management of Onsite's business. As no evidence has been provided in regard to the content of the calls relied upon, there is no basis to conclude the purpose of the calls. I accept that the quantity of phone calls is possibly explained by the Applicant's scheduling role. I am unable to conclude that the calls were made in a management or supervisory role.
I agree with the Respondent in regard to inferences that can be drawn where a party fails to call a material witness. Neither the Applicant nor Ms Nguyen gave evidence, so I have not had the benefit of an explanation or clarification for these matters. However, It is not clear to me why summonses could not have been issued for them to attend and give evidence.
In my view, this is a situation in which the choice between the possible explanations can only be resolved by conjecture.
I agree that the intent of the disciplinary action imposed on the Applicant was to exclude his participation in particular roles within the industry for the specified period. The intention was not to prevent him from undertaking any roles whatsoever in the industry or to prevent him from working.
As has been noted above, the assessment of whether the Applicant is a fit and proper person must be viewed in light of the activities in which he would be engaged if he is granted a tradesperson certificate.
I agree with the Applicant's characterisation of the differences between a contractor's licence and a tradesperson certificate:
A tradesperson certificate can only be issued to an individual, unlike a contractor's licence which can be issued to a corporation and/or individual.
Unlike a nominated supervisor there is no requirement for the holder of a tradesperson certificate to be an employee or director of the company that holds the contractor's licence.
A tradesperson certificate does not permit the holder to contract, subcontract or advertise to carry out work. In contrast, a contractor's licence permits the holder to contract with consumers.
In order for the Applicant to contract, subcontract or advertise to do work, a contractor licence must be held.
A tradesperson certificate would permit the Applicant to work as a tradesman. Minimal management skills are required.
As was noted in Trombetta, licensing requirements of the Act are imposed for the protection of the public. I agree with the Applicant that the risk to consumers is lessened where a tradesperson certificate merely allows the holder to be 'on the tools' and subject to the supervision of a licensed contractor.
In the circumstances, I do not agree with the Respondent that the evidence establishes that the Applicant did not comply with the disqualification imposed on him. Further, I do not agree that the evidence establishes that the Applicant is not a fit and proper person to hold a tradesperson certificate under the Act.
In my view, the correct and preferable decision is that the application for a tradesperson certificate should be granted.
However, it is my view that the conditions proposed by the Applicant should be placed on the certificate. My reason for this view is the failure of the Applicant and Ms Nguyen to give evidence and to consequent lack of opportunity to obtain an explanation or clarification for those matters which I consider can only be resolved by conjecture. If that evidence had been available, it is possible that it would have led to a different conclusion. Nevertheless, it is my view that any risk to consumers that might be associated with the Applicant's employment in circumstances where he might be able to exert influence over his employer will be reduces by those conditions.
[6]
Orders
1. The decision to refuse to grant Mr Jason Aboukalam a tradesperson's certificate under the Home Building Act 1989 is set aside.
2. In substitution the decision is made to grant Mr Jason Aboukalam a tradesperson's certificate in the category of plumber, drainer, and gasfitter.
3. Unless otherwise agreed between the parties, the tradesperson's certificate is to be subject to the conditions that Mr Jason Aboukalam:
1. is not to accept employment with, or engagement by, Ms Thu Sang Nguyen or any company of which she is a director, or with or by any partnership of which she, or a company as just described, is a member; and
2. is to provide to the Commissioner for Fair Trading the details of any proposed employer at least twenty-one (21) days prior to the proposed commence of employment.
[7]
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: 05 April 2024
Section 9 of the Administrative Decisions Review Act 1997 (NSW) ("the ADR Act,") provides that the Tribunal has jurisdiction in regard to an application for review of a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review.
The Tribunal has jurisdiction in regard to a number of licensing issues. The jurisdiction under section 83B(1) of the Act in relation to:
An applicant for the issue, alteration, renewal or restoration of an authority aggrieved by any decision of the Secretary relating to the application may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision.
This application is made under section 83B of the Act and the ADR Act. The Tribunal's jurisdiction includes review of a decision by the Respondent to refuse to grant a tradesperson certificate.
Section 63 of the ADR Act provides that in determining an application, the Tribunal is to determine what is the "correct and preferable decision" having regard to the material before it. In reaching the correct and preferable decision, the Tribunal may:
1. exercise all of the functions that are conferred or imposed by the TTI Act on the Respondent; and
2. affirm the decision, vary the decision, set aside the decision, and make a decision in substitution of the decision, or set aside the decision and remit the matter for reconsideration by the Respondent.
There is no formal onus of proof. In considering the Application, the Tribunal may have regard to any relevant material before it at the time of its review. Its consideration is not limited to material that was before the Respondent at the time it made the decision which is under review, or material that had not been provided to the Respondent.
The Tribunal is to make its own decision and there is no presumption that the Respondent's decision is correct. The Tribunal should consider all relevant materials and ignore all irrelevant materials.
The requirements for proof of questions of fact in administrative review proceedings generally were summarised by an Appeal Panel in Meacham v Commissioner of Police [2020] NSWCATAP 107 at paragraphs [54] and [83]:
"[54] Despite not being bound by the rules of evidence, the Tribunal is required to base its findings of fact on "logically probative material", and not on "mere suspicion or speculation", as a corollary of its obligation to act reasonably: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 ("Pochi") at 62, 68 (Deane J); [1980] FCA 85; Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 ("Sullivan") at [5]-[8], [15]-[17] (Logan J). It is an error of law for the Tribunal to make a finding of fact with no evidence, or no probative evidence, to support it.
…
[83] Proof of matters which are asserted is required in a practical sense, and a party asserting a fact is generally required to provide evidence to substantiate it. As noted above, the Tribunal is required to base its findings of fact on "logically probative material": Pochi at 62, 68; Sullivan at [5]-[8], [15]-[17]."
As Principal Member Britton observed in BSR v Office of the Children's Guardian [2015] NSWCATAD 264 at paragraph [17]:
… a practical or "forensic" burden can arise from the material presented. A party who asserts a fact has a responsibility to prove that fact: Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303; Holbrook and Australian Postal Commission (1983) 5 ALN N46.
Section 22 of the Act provides for the cancellation of contractor licences. Subsections 22(1)(d) states:
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 -
…
(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
...
The decision to refuse to grant the Applicant a tradesperson certificate was under section 25(1)(a) and 25(1A) of the Act. Subsections 25(1)(a) and 25(1A) provide:
25 Issue of certificates
(1) 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
…
(1A) Without limiting subsection (1)(a), in determining whether an applicant is a fit and proper person to hold a certificate the Secretary is to consider whether the applicant is of good repute, having regard to character, honesty and integrity.
Section 5 of schedule 1 to the Act provides that for the purposes of the Act:
5 Meaning of "close associate"
(1) For the purposes of this Act, a person is a close associate of another person if the person -
…
(d) bears a relationship to the other person that is a prescribed relationship under subclause (2), or
...
(2) For the purposes of subclause (1)(d), a person bears a prescribed relationship to another person if the relationship is that of -
…
(b) an existing or former de facto partner, or
...
Section 56 of the Act provides for taking disciplinary action against holder of a contractor licence. Subsection 56(k) provides:
56 Grounds for taking disciplinary action against holder of a contractor licence
The Secretary may take disciplinary action under section 62 against the holder of a contractor licence on any of the following grounds -
…
(k) that the Secretary has become aware of information about the licensee that, if known at the time the application for the licence was determined, would have been grounds for refusing the application
…
Section 9AD of the Corporations Act 2001 (Cth) defines the meaning of the term 'officer' as follows:
9AD Meaning of officer
(1) An officer of a corporation (other than a CCIV) is:
(a) a director or secretary of the corporation; or
(b) a person:
(i) who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the corporation; or
(ii) who has the capacity to affect significantly the corporation's financial standing; or
(iii) in accordance with whose instructions or wishes the directors of the corporation are accustomed to act (excluding advice given by the person in the proper performance of functions attaching to the person's professional capacity or their business relationship with the directors or the corporation); or
...
Fitness and Propriety
As noted, the Respondent contends that the Applicant is not a fit and proper person to hold a tradesperson certificate under the Act.
The Applicant states that he is a fit and proper person for the purposes of the Act because:
there is no suggestion he does not hold the requisite knowledge and experience required to hold a contractor's licence;
there is no allegation of faulty workmanship against him personally; and
he has not received any complaints nor convictions against him personally.
The expression 'fit and proper' has been considered by this Tribunal and in other jurisdictions in numerous cases.
In Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 at 156-7, the High Court said that fitness and propriety involve three things, honesty, knowledge and ability. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J at paragraph [40] said:
In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails.
In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380; (1990) 94 ALR 11 at 65; [1990] HCA 33, Toohey and Gaudron JJ explained that:
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, or 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.
It is generally accepted that the question of whether a person is fit and proper needs to be determined by reference to the activities in issue and is to be gauged in light of the nature and purpose of the activities that the person will undertake. The assessment involves a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184 at paragraph [40]. It must be viewed in light of:
(a) the activities in which the person is or will be engaged": Re Percival and Australian Securities Commission (1993) 30 ALD 280 at 290; and
(b) The role the person is to undertake: Taouk v Director General, NSW Fair Trading [2016] NSWCATOD 41 at paragraph [46].
The Respondent's case
The Respondent submits that the Applicant's tradesperson certificate application should not be granted because of his prior conduct that was the subject of the disciplinary proceedings, and his subsequent conduct in his dealings with Onsite. The Applicant's de facto, Ms Thu Sang Nguyen, was Onsite's sole director and secretary. The Respondent contends that the Applicant is a "close associate" of Onsite. Onsite's licence was cancelled in December 2021, because of its relationship with the Applicant.
The statement of reasons for the cancellation stated (references deleted):
6. Onsite was incorporated on 26 March 2020 by its sole director and secretary, Ms Thu Sang Nguyen.2 The ASIC historical extract states that Onsite's principal place of business as 480 President Avenue, Kirrawee NSW 2232. Ms Nguyen has also represented that this was the address of Onsite's business operations to NSW Fair Trading, the NSW Civil and Administrative Tribunal and the NSW Roads and Maritime Service.
7. On 2 April 2020, Ms Nguyen as the director of Onsite, applied for a "Company Contractor Licence" identifying the category of work as "roof plumbing", "Gasfitting", "LP Gasfitting", "Plumbing" and "Draining".
8. It was not disputed by Onsite that Onsite's banking records obtained by NSW Fair Trading indicate that it only became active in using its Licence after 5 February 2021.
9. That date is significant because Ms Nguyen's de facto partner, Mr Jason Aboukalam, was the subject of disciplinary action by NSW Fair Trading, including the cancellation of his authority to undertake work as a "Plumber", "LP Gasfitter", "Drainer" and "Gasfitter" which took effect from 5 February 2021. That cancellation also affected the companies of which Mr Aboukalam was a director, including Fastway Plumbing Pty Ltd (A.C.N 618 352 739) (Fastway) which later changed its name to Plumbcorp Group Pty Ltd (Plumbcorp) on 27 October 2020.
10. This is significant because the undisputed evidence is also that Onsite:
(a) in fact operates from the former business premises of Plumbcorp at 5/40 Cawarra Road, Caringbah NSW 2229 (which is contrary to the representations made by Ms Nguyen as to the location of Onsite's business);
(b) once it began operating after 5 February 2021, used the banking facilities established by Mr Aboukalam being American Express (AMEX) accounts, and an ANZ bank account held by Plumbcorp.
…
13. Onsite has admitted, in the face of the evidence of its payment of wages to Mr Aboukalam, that Mr Aboukalam was an employee of Onsite up until sometime after receipt of the notice of intention to consider cancellation dated 13 October 2021. Onsite's solicitors then asserted in the letter dated 3 November 2021 …
14. …
(a) Onsite asserted that Mr Aboukalam's mobile phone number ending in 872 was transferred to Onsite in July 2021. This is contrary to the Telstra ownership records obtained by NSW Fair Trading and the information from Key Integration which corroborated that the Telstra records are correct.
(b) Onsite asserted that the mobile ending in 939 belonged to it rather than Mr Aboukalam. Again, this is contrary to the Telstra ownership records obtained by NSW Fair Trading and the information from Key Integration which corroborated that the Telstra records are correct.
(c) Onsite asserted that the mobile phone numbers displayed for one of its trading names, Smiths Plumbing, were owned by it and not Mr Aboukalam. Again, this is contrary to the Telstra ownership records obtained by NSW Fair Trading and the information from Key Integration which corroborated that the Telstra records are correct.
(d) Onsite asserted that its use of the AMEX account established by Mr Aboukalam was because "in the period shortly after Onsite was established and for some time thereafter, it itself lacked credit card facilities for a sufficient amount" and so "its expenses of advertising on Google were paid on a credit card issued in the same (sic) of Plumbcorp Group Pty Ltd (on which Mr Aboukalam was an authorised signatory)" and a "short term loan by Plumbcorp". This is contrary to:
(i) AMEX records obtained by NSW Fair Trading which demonstrate that Onsite established its own AMEX account in March 2021 which had no "spending limit" and from that account also paid $127,502.74 in advertising during the period 17 March 2021 to 30 July 2021 and
(ii) the Commonwealth Bank records obtained by NSW Fair Trading which demonstrate that Onsite established an account with that bank from at least 15 February 2021 and from that account also paid $512,025.16 in advertising during the period 9 March 2021 to 26 August 2021.
(iii) the ASIC Historical company extract for Plumbcorp which shows that from 28 June 2021 it was under external administration suggesting that the continued use of any such banking facilities by Mr Aboukalam and Onsite after that date were unauthorised.
In Poytress v Director General, NSW Fair Trading [2015] NSWCATOD 100, in the context of an application under the Act, I stated at paragraph [82]:
The issue of whether a person is fit and proper due to past conduct is a matter of judgement. In considering that issue the Tribunal is required to take into account the nature and seriousness of the original conduct, any events relevant to an assessment of the Applicant's fitness which have occurred since then, the candour with which the Applicant has approached the issue of past conduct, the Applicant's explanation of the conduct, the impact of the effluxion of time, and the Applicant's present circumstances and reputation.
In Grenfell v Director General Department of Finance and Services [2013] NSWADT 57, the matter concerned a review of a decision to refuse a tradesperson's certificate under the Motor Vehicle Repairs Act 1980 because it was considered that Mr Grenfell was not a fit and proper person. Judicial Member Molony said at paragraphs [10] - [11]:
10. The nature of the role that a person wishes to undertake in a regulated industry impacts on an assessment of fitness and propriety. Thus the character, knowledge and experience that an application for a taxi-operators licence has to demonstrate in order to be considered fit and proper for that role, is different to the character, knowledge and experience required of a person who simply wishes to drive taxis. This is so because what is fit and proper varies in accordance with the nature and purpose of the role the person seeks to undertake, as well as in accordance with industry in which they will undertake that role.
11. Such a distinction is recognised in the provisions of the MVR Act which sets out different requirements a person has to satisfy if he or she wishes to be a licenced motor vehicle repairer, as opposed to a certificate holder: see sections 18 and 24. The reason for this distinction is clear; a licensee is running a business and providing a service to the public, with concordant accountabilities and responsibilities, whereas a tradesperson is a qualified individual in the employ of a licensee or the owner of a commercial vehicle.
In Trombetta v Commissioner for Fair Trading [2018] NSWCATOD 167, Senior Member Robertson noted at paragraph [67], that:
… The licensing requirements of the Act are not imposed by way of punishment for those convicted of crimes. They are imposed for the protection of the public.
Public interest considerations may also play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65 at paragraph [37].
As noted, section 25(1A) of the Act provides that consideration of the issue of whether or not the Applicant is a fit and proper person to hold a tradesperson certificate requires consideration of whether the applicant is of good repute, having regard to character, honesty and integrity.
The Respondent contends that any company that the Applicant has run or been associated with has generated an extraordinary number of consumer complaints. These complaints were highlighted in the disciplinary proceedings.
The internal review reasons for decision in relation to the refusal of a contractor licence noted:
The original decision conveys that an investigation carried out by NSW Fair Trading into the operation of Onsite determined:
• company director, Thu Sang Nguyen, was Mr Aboukalam's de facto partner
• the company became active after disciplinary action, including disqualification, was taken against Mr Aboukalam in February 2021
• Onsite's sole director, Ms Nguyen, used an America Express account and an ANZ bank held by Plumbcorp, with both accounts having been established by Mr Aboukalam
• contact telephone numbers listed on Onsite's website belonged to Mr Aboukalam.
Mr Aboukalam does not dispute that he and Ms Nguyen were de facto partners during the period of his involvement with Onsite. He asserts, however, that he was employed as a full-time service and support coordinator by Onsite between February 2021 and 23 June 2021 and his role was confined to scheduling accepted jobs, contacting Onsite's plumbers to establish their availability and reporting to the service coordination manager.
Although denying he had significant influence over Onsite or its business during his employment, he ceased his involvement with the business in October 2021 after Onsite was issued a Notice of intention to Consider Cancellation (NOICC) by NSW Fair Trading.
…
It is clear that the intent of the disciplinary action imposed on Mr Aboukalam by NSW Fair Trading with effect from 5 February 2021 was to exclude his participation within the regulated building and specialist work industries for the specified period. Shortly after the disciplinary action was taken, however, he was involved with another corporation holding a contractor licence authorising it to work within the residential building industry and which was operated by an individual with whom Mr Aboukalam was engaged in a prescribed relationship.
I agree that Mr Aboukalam's conduct, as noted above, demonstrates a disregard for the conditions of the disciplinary action imposed upon him as he continued to work within the regulated residential building industry whilst disqualified and that this is behaviour detrimental to the residential building industry.
The Respondent submits that the facts and available inferences support the conclusion that Onsite was a vehicle used by the Applicant to circumvent the disciplinary decision against him.
It is submitted that a Court or Tribunal will often be asked to find certain 'intermediary facts' and then to consider whether those facts, alone or in combination, give rise to inferences which may be drawn to prove a party's case. However, "where competing possibilities are of equal likelihood, or the choice between them can only be resolved by conjecture, the allegation is not proved: Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 at paragraph [41].
As noted, the Applicant did not give evidence. The Respondent submits that it is well established that the failure by a party to call a material witness (or offer any evidence at all) may lead to two consequences:
1. an inference being drawn that the uncalled evidence would not have assisted the party's case; and/or
2. that any inference that is already open on the evidence and is unfavourable to the party who failed to call a witness can be drawn with greater confidence, if that witness seems to be in a position to cast light on whether that inference should properly be drawn.
The Respondent submits that in this matter the available material supports following relevant intermediate facts and inferences:
In February 2020, the Applicant applied to renew his licence, and this was refused on 27 March 2020. Accordingly, as at February 2020, the Applicant was aware that his licence was at risk.
Ms Nguyen incorporated Onsite on 26 March 2020 and was its sole director and secretary. The ASIC historical extract states that Onsite's principal place of business was 480 President Avenue, Kirrawee NSW 2232. Ms Nguyen has also represented that this was the address of Onsite's business operations to NSW Fair Trading, the NSW Civil and Administrative Tribunal and the NSW Roads and Maritime Service.
On 2 April 2020, Onsite, applied for the same licence as that held by the Applicant and his companies.
Onsite was granted the licence on 30 April 2020. Onsite undertook no operations at this time.
Onsite's failure to trade upon it obtaining the licence, in combination with the other facts below, leads to the conclusion that Onsite was a mechanism devised to enable the Applicant covertly to continue his trade even if his licence was refused or cancelled.
Despite the refusal on 27 March 2020, the Applicant's application for internal review was successful and his licence was renewed on 12 June 2020.
On 30 November 2020, the Applicant was issued with a Notice to Show Cause and his licence was immediately suspended for 60 days.
On 29 January 2021, the Applicant was issued with a Notice of Decision to take disciplinary action under which:
1. it was determined that he was not a fit and proper person to hold the licence; and
2. his licence was cancelled with effect from 5 February 2021.
Immediately upon this decision taking effect, Onsite became active. Once it became active, Onsite:
1. in fact operated from the former business premises of the Applicant's company (Plumbcorp) at 5/40 Cawarra Road, Caringbah NSW 2229 (which is contrary to the representations made by Ms Nguyen as to the location of Onsite's business;
2. used the banking facilities established by the Applicant being an American Express (AMEX) account and an ANZ bank account held by Plumbcorp (discussed below); and
3. generated an equivalent large number of consumer complaints as the Applicant's business.
The available mobile phone records and the banking records also indicate the Applicant's control of Onsite and/or the operation and management of Onsite's business.
That conduct indicates he is does not meet the requirement, emphasised in section 25(1A) of the Act, with respect to his "character, honesty and integrity" to be granted the licence.
The Respondent noted that the Applicant's licence was cancelled with effect from 5 February 2021 and that Onsite became active after 5 February 2021. The Applicant contends that his role with Onsite was as a full-time service and support coordinator. In contrast, the Respondent contends that the Applicant's role was far greater in that he appeared to carry on and to run his business through Onsite. With respect to Onsite, the internal review reasons for decision in relation to the refusal of the tradesperson certificate application noted that the Applicant "continued to hold relevant financial interest in the company and had influence over its operation and management, despite disciplinary action taken against him". It further stated that the Applicant "continued to act in a manner which was contrary to the provisions of the disciplinary action taken against him". The Respondent contends that this demonstrates that the Applicant has little regard for legislative requirements and the regulator. It concluded that:
"his blatant contempt for the home building legislative framework, poor ethical conduct and disregard of obligations to consumers is clearly established. The assertion that because Mr Aboukalam is seeking an authority to enable him to be 'on the tools' and this would eliminate the risk of any dishonesty by him toward consumers is incongruous, inferring that Mr Aboukalam's evident behaviour would somehow diminish whilst undertaking the role of a tradesperson."