Australian Trades Pty Ltd v Secretary, Department of Customer Service

AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81

McGuiffick v Commissioner for Fair Trading [2022] NSWCATOD 176

Secretary Department of Customer Service v BOB Building Services Pty Ltd [2025] NSWCATAP 48

Australian Trades Pty Ltd ACN 164 770 852 (First Applicant)

Secretary, Department of Customer Service (Respondent)

1. The First Applicant in the proceedings is Australian Trades Pty Ltd, a licensed plumbing contractor. The Second Applicant in the substantive proceedings, Alha Charbel, is a director and nominated supervisor of Australian Trades. Mr Charbel also holds a licence or contractor authority.
2. The present application arises in the context of investigations conducted by the Building Commissioner of NSW into, among other things, complaints made against the First Applicant by several consumers alleging over-charging, harassing or coercive practices and unfair contracts.
3. On 24 November 2025, a delegate of the Respondent under the Home Building Act 1989 (NSW), cancelled the authorities of the Applicants (Cancellation Decision).
4. On 5 December 2025, I granted a stay of the Cancellation Decision subject to a condition. Specifically, the relevant order made on that date was order 1, which, for convenience, I have extracted here:

1. The Decisions of the Respondent made on 24 November 2025 to:

(a) permanently cancel contractor licence No. 300418C held by Australian Trades Pty Ltd and disqualify it from holding any authority under the Home Building Act 1989 (NSW); and

(b) cancel contractor licence No. 190178C held by Charbel Alha and to disqualify him from holding any authority under the Home Building Act 1989 (NSW), or being a member of a partnership or an offer of a corporation that holds an authority or is a member of a partnership that holds an authority

are stayed pending further order of the Tribunal on the following conditions:

Condition 1: The Applicants are not to contract with or carry out any residential building work for any consumer where the consumer is a natural person.

1. Shortly after the hearing on 5 December 2025, one of the parties requested reasons for my decision to make that order. These are the written reasons arising from that request.
2. Subsequently, the Applicants sought leave to appeal from that order, and in particular the condition placed on the grant of the stay. That leave application has been heard and determined: Australian Trades Pty Ltd v Secretary, Department of Customer Service [2025] NSWCATAP 325.
3. The other orders, which concern the timetable to progress the substantive issue to the final hearing, are mechanical and not the subject of these reasons.
4. In preparing these reasons, I have had the advantage of the Tribunal's sound recording of the hearing of 5 December 2025.

Matters relevant in considering whether to grant a stay

1. Section 60 of the Administrative Decisions Review Act 1997 (NSW) provides that an application does not stay an administrative decision for review. That section also allows any party to apply for a stay or other interim orders to secure the effectiveness of the Tribunal's determination.
2. Before the Tribunal makes any such order, it must be satisfied that it is desirable to make interim orders, having regard to the interests of those affected by the decision, the views of the respondent decision-maker and the public interest.
3. In QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAP 113 at [31]- [33], the appeal panel made the following, oft-quoted, statement which amplifies and annotates s 60 of the Administrative Decisions Review Act. The appeal panel said:

[31] The Tribunal recently considered the power under s 60 of the ADR Act in Loveday v Commissioner for Fair Trading [2018] NSWCATAD 80 (Loveday). In that decision it was held at [8]:

"... Section 60(2) and (3) give the Tribunal a single discretionary power to make a stay order or to refuse to make such an order taking into account all relevant considerations. Secondly, the words "to secure the effectiveness of the hearing" include a situation where the applicant will suffer irreparable loss in the sense that no recompense for it can be obtained if the application is ultimately successful: Re Pelling and Secretary, Department of Aviation [1984] AATA 179; (1984) 5 ALD 638 at 639. It is not confined to the situation where a hearing would be pointless because the applicant will go out of business if a stay is refused. ..."

[32] The relevant considerations in deciding whether to make an order under s 60(2) include:

(1) whether the order is appropriate to secure the effectiveness of the determination of the application for review: ADR Act, s 60(2);

(2) whether the order is desirable taking into account:

(a) the interests of any persons who may be affected by the determination of the application for review: ADR Act, s 60(3)(a), Loveday at [10], Re Scott and Australian Securities and Investments Commission [2009] AATA 798 (Re Scott) at [4];

(b) any submission made by or on behalf of the administrator who made the decision to which the application relates: ADR Act, s 60(3)(b), Loveday at [10], Re Scott at [4];

(c) the public interest: ADR Act, s 60(3)(c), Loveday at [10], Re Scott at [4];

(3) the applicant's prospects of success on the application for review: AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 (AVS Group) at [129], Loveday at [10] and [11], Re Scott at [4].

[33] The circumstances that are relevant in any particular case to the considerations identified above may well overlap or be interrelated.

1. In making an interim order, the Tribunal is expressly authorised to make such orders subject to conditions: Administrative Decisions Review Act, s 62.

1. Prior to making the Cancellation Decision, there had been earlier action taken by the Building Commissioner as delegate of the Respondent, which had also come before the Tribunal as presently constituted. The factual background is relevantly outlined in: Australian Trades Pty Ltd v Secretary, Department of Customer Service [2025] NSWCATOD 153 and does not need to be repeated for the purposes of these reasons.
2. What emerges from that background is that there is a significant factual contest between the parties that will require a detailed determination by the Tribunal at the appropriate time.
3. In short, I am satisfied on the basis of the evidence and submissions made before me that the Applicants have at least an arguable case to make against the Cancellation Decision.

1. At the hearing of the application for a stay, I posited a condition of the kind ultimately imposed. Specifically, I noted that the licences held by the Applicants would allow them to contract with developers, builders and strata managers or similar kinds of organisations. As this was a proposal that neither party had sought or considered, I allowed an adjournment to allow the representatives for both parties to obtain instructions on whether such a condition might be consented to.
2. On return from that adjournment, I was informed by senior counsel for the Applicants that the condition would not be acceptable and an alternate proposal was made. Specifically, the following submission was made:

The difficulty with the condition that the tribunal has floated is that it's about, I'm instructed, about three years since [the Applicants] did any work for strata managers, other licensed enterprises or directly for strata schemes, or real estate agents. But what [the Applicants] would be prepared to consent to is a condition that we notify monthly the list of jobs [the Applicants] have, [the Applicants] undertake, identifying the day, the customer and the address. And, if I can quote my client, the Building Commission can do its damnedest.

1. Counsel for the Respondent made the following submission:

My client's principal position is that a stay should not be ordered, but if you were minded to grant a stay, we would submit that it is an appropriate condition. All of the examples, all of the conduct we say is unconscionable, is directed towards individual consumers. ... And the ... condition on the stay that the Tribunal has suggested would ameliorate that concern on an ongoing basis.

...

And I should say that ... obviously enough, corporations and businesses would be better able to protect themselves from the kind of pressure that we say has been exerted upon individuals.

Is an interim order necessary to secure the effectiveness of the application?

1. In short, yes, a stay is necessary. This is because I was satisfied, having regard to the evidence tendered by the Applicants that, if a stay of the Cancellation Decision were not granted, the business of the First Applicant, upon which Mr Alha relies for his livelihood, would have to shut down entirely. Even with a relatively speedy timetable for having the matter ready for a final hearing, the Applicants face at least six months of having their business operations entirely suspended. I accept that such a closure is likely to result in the First Applicant being wound up, and such an event significantly reduces the effectiveness of the Tribunal's processes.

1. Having heard the evidence of both parties, I determined that it was desirable to make an interim order staying the Cancellation Decision subject to the condition.

Consideration of the interests of persons affected

1. Related to the first consideration of securing the effectiveness of the Tribunal's decision, I am satisfied on the basis of the same factual findings that the Applicants will be very much adversely affected by the Cancellation Decision being imposed in circumstances where that decision is contested.
2. Australian Trades employs a number of staff and contracts with various subcontractors who are reliant on receiving work from it. While it was conceded that the number of staff employed by Australian Trades has declined since the last interim order application, an appreciable number of people will nonetheless face unemployment in a challenging economic environment. Those employees and subcontractors are also persons affected were relevant to my consideration.

The respondent decision-maker's opposition to a stay

1. As shown above, the Respondent is opposed to the granting of a stay. That is its primary position. However, the Respondent having considered the application of the posited condition, was amenable to it. I have given the Respondent's opposition to the making of any stay, and its agreement on the condition, significant weight.

1. The public interest is a consideration that has significance where, here, the Home Building Act is quintessentially consumer protection legislation: McGuiffick v Commissioner for Fair Trading [2022] NSWCATOD 176 at [48] and Secretary Department of Customer Service v BOB Building Services Pty Ltd [2025] NSWCATAP 48 at [30].
2. The detriment caused to Australian Trades by the Cancellation Decision would also impact its ability to maintain staff and continue to provide work to its subcontractors - those people are also members of the public and, in imposing the condition, I have sought to take into account their position also.
3. In granting a stay subject to the condition, I have attempted to allow the Applicants the opportunity to continue to trade and earn income. I am aware from the submissions made (and in part extracted above), that the imposition of a condition on the grant of the stay is decidedly not their chosen course.
4. But while I accept that it is by no means a straightforward exercise to reorient a business and, in effect, entirely change its customer base, the Applicants' submission that it had only been a period of about three years since it had contracted with customers who were not natural persons was particularly informative. I took that to mean that the business of the Applicants, as it is presently dedicated only to natural person consumers, is actually relatively recent and that it would be by no means impossible for it, as an interim measure, to tender for or obtain business from customers who are not natural persons.
5. In considering public interest, the condition would mean that the risk said to be posed to the public by the Applicants would, as counsel for the Respondent put it, be ameliorated, while still allowing the Applicants some possibility of keeping their business afloat.

1. The process of granting interim relief is directed by the considerations set out in s 60 of the Administrative Decisions Review Act. On balance, having considered the evidence and submissions of the parties, I made the following orders:

(1) The Decisions of the Respondent made on 24 November 2025 to:

(a) permanently cancel contractor licence No. 300418C held by Australian Trades Pty Ltd and disqualify it from holding any authority under the Home Building Act 1989 (NSW); and

(b) cancel contractor licence No. 190178C held by Charbel Alha and to disqualify him from holding any authority under the Home Building Act 1989 (NSW), or being a member of a partnership or an offer of a corporation that holds an authority or is a member of a partnership that holds an authority,

are stayed pending further order of the Tribunal on the following conditions:

Condition 1: The Applicants are not to contract with or carry out any residential building work for any consumer where the consumer is a natural person.

(2) The Respondent is to give to the Tribunal and the Applicants the following material: documents under s 58 of the Administrative Decisions Review Act 1997 on or before 23 January 2026.

(3) The Applicants are to give to the Tribunal and the Respondent evidence, including statements and documents, on or before 06 March 2026.

(4) The Respondent is to give to the Tribunal and the Applicants any further evidence on or before 27 March 2026.

(5) The Applicants are to give to the Tribunal and the Respondent the following material: evidence in reply, if any, and a written outline of submissions on or before 30 April 2026.

(6) The proceeding is listed for directions/compliance check on 05 May 2026 at 11:30 AM at John Maddison Tower, Level 10, 86-90 Goulburn Street, Sydney.

NOTE: This date has been brought forward to the first date after all evidence has been directed to be filed.

(7) The Respondent is to give to the Tribunal and the Applicants a written outline of submissions on or before 15 May 2026.

(8) The Applicants are to give to the Tribunal and the Respondent any written submissions in reply, if any, on or before 29 May 2026.

(9) The proceeding is listed for hearing on 15 June 2026 at 10:00 AM at John Maddison Tower, Level 10, 86-90 Goulburn Street, Sydney for 5 day(s).

(10) Notes: The conditions imposed by the Tribunal under order 2 of 27 November 2025 will lapse at 5:00 PM on Friday, 5 December 2025, in accordance with the terms of that order.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

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.