Australian Trades Pty Ltd v Secretary, Department of Customer Service [2025] NSWCATOD 153;

Commissioner of Taxation v Industrial Equity Ltd (2000) 98 FCR 573; [2000] FCA 420

Hunter Development Corporation v Save Our Rail NSW Incorporated (No 2) [2016] NSWCA 375

Jardin v Metcash Ltd [2011] NSWCA 409

Loveday v Commissioner for Fair Trading [2018] NSWCATAD 80

McGuiffick v Commissioner for Fair Trading [2022] NSWCATOD 176

People with Disability Australia Incorporated v Minister for Disability Services [2011] NSWCA 253

QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAP 113

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

Secretary, Department of Communities and Justice v Feeney [2021] NSWCATAP 139

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. Aside from his interest as a director of the First Applicant, Mr Charbel is not affected by the matters the subject of these reasons.
2. The proceedings arise because 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 27 August 2025, a delegate of the Respondent under the Home Building Act 1989 (NSW), imposed conditions on the First Applicant's licence (Conditions Decision).
4. On 5 September 2025, I granted a partial stay of the Conditions Decision. The orders made on that date were:

1. The decision made on 27 August 2025 to impose conditions on the Applicant's licence is stayed pending further order of the Tribunal to the following extent:

(a) The decision to impose Condition 1 is stayed.

(b) The decision to impose Condition 2 is stayed.

(c) The decision to impose Condition 5 is stayed.

2. The timetable set out in direction 4 by the Tribunal on 25 August 2025 is amended as follows:

(a) time for compliance with 4(a) is extended to 12 September 2025.

(b) time for compliance with 4(b) is extended to 19 September 2025.

(c) time for compliance with 4(c) is extended to 24 September 2025.

The effect of order 1 above is that no stay has been granted with respect to the decision to impose conditions 3 and 4, which concern the requirement that the Applicant not alter its name, and it must include the name Australian Trades Pty Ltd next to any trading name or other name identifying itself when it is advertising on websites or in other electronic advertisements. The application, as amended, remains listed for final hearing on 30 September 2025.

1. At the hearing on 5 September 2025, the Respondent requested reasons for my decision to make order one, granting a partial stay of the Conditions Decision. These are the written reasons arising from that request.
2. The second order, concerning the timetable to progress the substantive issue to final hearing, has subsequently been amended, including to allow for the Attorney-General of NSW to intervene in the proceedings, such that the proceedings are now listed for final hearing commencing on 4 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 administrative decision is not stayed by an application for review. A respondent decision-maker is entitled to take action to implement the decision, the subject of administrative review, pending before the Tribunal. That section also allows any party to apply for a stay or other interim orders to secure the effectiveness of the Tribunal's determination. 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.
2. 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 helpfully 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. Prior to making the Conditions 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. I outline some of that earlier action and the Tribunal's involvement by way of context and background.

1. On 19 August 2025, the Respondent issued notices to show cause to both Australian Trades and Mr Charbel. The show cause notices were issued under s 61 of the Home Building Act. The show cause notices invited the Australian Trades and Mr Charbel to respond to allegations contained in two grounds that broadly concerned matters raised by the consumer complaints and the concerns of the Respondent in the course of its investigation of those complaints up to that date.
2. Also on 19 August 2025, the Respondent suspended the authorities (i.e. the licences) of Australian Trades and Mr Charbel for a period of 60 days (Suspension Decision). The Respondent's power to suspend the licences arises under s 61A of the Home Building Act, which allows the Respondent to suspend licences in circumstances where a show cause notice has been served, and it has formed the requisite opinions set out in the section. Suspensions under s 61A can be imposed for no longer than 60 days.
3. On 21 August 2025, Australian Trades and Mr Charbel applied to the Tribunal for administrative review of the Suspension Decision. They also applied for a stay of the Suspension Decision pending the determination of the Tribunal.

1. On 22 August 2025, the Tribunal, as presently constituted, heard the application for a stay of the Suspension Decision and on 25 August 2025, consequently, of that hearing, I granted a stay of the Suspension Decision, among other orders.
2. On a subsequent date, one or other of the parties requested reasons for my decision to grant a stay of the Suspension Decision on 25 August 2025. No reasons have been provided in relation to that decision because, on 18 September 2025, the Tribunal made orders by consent setting aside the Suspension decision pursuant to s 63 of the Administrative Decisions Review Act 1997 (NSW). Consequently, the Suspension Decision is no longer a live issue before the Tribunal and any reasons on the granting of a stay of a decision subsequently set aside can have no utility or, at most, might be considered an advisory opinion.
3. In Commissioner of Police, New South Wales Police Force v Parish [2025] NSWCATAP 180 (Parish) at [47]- [48], the appeal panel noted:

A proceeding, or an aspect of it, will lack utility if its determination serves no practical purpose. One way a proceeding or issue can become moot is if, due to supervening events or circumstances, there is no longer a controversy between the parties: Hunter Development Corporation v Save Our Rail NSW Incorporated (No 2) [2016] NSWCA 375 (Hunter Development) at [40].

As a matter of general principle, courts will ordinarily refuse to determine issues which no longer have utility or have become moot. In Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9 at [47], the High Court explained:

"Because the object of the judicial process is the final determination of the rights of the parties to an action, courts have traditionally refused to provide answers to hypothetical questions or to give advisory opinions."

1. While there are some recognised exceptions to that general rule and those exceptions have been considered judicially in People with Disability Australia Incorporated v Minister for Disability Services [2011] NSWCA 253; Jardin v Metcash Ltd [2011] NSWCA 409; Hunter Development Corporation v Save Our Rail NSW Incorporated (No 2) [2016] NSWCA 375; Attorney-General for the State of New South Wales v XY [2014] NSWCA 466 and Commissioner of Taxation v Industrial Equity Ltd (2000) 98 FCR 573; [2000] FCA 420, and by the appeal panel of the Tribunal in Parish, Secretary, Department of Communities and Justice v Feeney [2021] NSWCATAP 139 and AVS Group Australia Pty Ltd v Commissioner of Police, NSW Police Force [2012] NSWADTAP 24 (AVS Group). The circumstances in which a court (and all the more so, the Tribunal) would reach a decision where there were no practical consequences for parties are rare: Jardin, per Campbell JA at [35] and none of the known exceptions apply to the Suspension Decision or my decision to stay.
2. Accordingly, I have not given reasons in relation to the interim orders made staying the Suspension Decision.

1. On 27 August 2025, in addition to the Conditions Decision, the Respondent published a warning concerning both Australian Trades and Mr Charbel. The Respondent has the power to publish a notice warning of risks involved in dealing with the holder of a contractor licence in connection with residential building work or specialist work under s 23 of the Home Building Act.
2. The Tribunal has no jurisdiction to review a decision to publish a warning under s 23 of the Home Building Act. The terms of s 23(3) permit the Respondent to authorise the publication of a warning notice in "any one or more of the following ways":

(1) By publishing the warning to any person making inquiries of the Respondent about the First Applicant;

(2) By advertisement by the use of any medium; and

(3) By authorising the publication of the warning to any media representatives.

1. The warning notice was in the following terms (though I have not included the heading text box, which is in bolded red font on a yellow highlighted background; nor have I included the bolding of text or hyperlink to the Respondent's website as it appears in the copy of the warning attached to the amended application for administrative review):

NSW consumers are warned not to deal with Australian Trades Pty Ltd (300418C) and Charbel Alha (190178C) in connection with residential building works or plumbing and drainage works because of the risk that consumers may be exposed to unconscionable conduct, use of unfair contract terms, and undue harassment and coercion.

Other trading names associated with Australian Trades Pty Ltd, include: ANDERSONS PLUMBING AUS, BOB'S PLUMBING NSW, Dan's Electrical AUD, Dan's Electrical NSW, Dan's Plumbing AUS, Dan's Plumbing NSW, LLOYD'S PLUMBING & GAS, Wilson's Plumbing NSW. The licence holder also advertises under the name of Fergusons Plumbing Group.

Customers who have dealt with Australian Trades Pty Ltd, Mr. Charbel Alha or persons operating under the trading names outlined above, and are not satisfied with their interaction are urged to lodge a complaint with the Building Commission NSW. You can lodge a complaint via our website by calling 13 27 00 or at any Service NSW centre.

1. The public warning is relevant to the stay of the Conditions Decision because the Respondent relied heavily on the submission, in opposing the stay, that the Conditions Decision was necessary to aid the public warning. While I have taken account of that submission as addressing the public interest consideration, as I expressed at the hearing, I have significant reservations about that necessity because Parliament has prescribed, in s 23(3) of the Home Building Act, a complete scheme for the publication of warnings and, while the Home Building Act is undoubtedly consumer protection legislation, there is no express provision authorising the making of conditions on a licence in furtherance of a public warning published under s 23. This is another matter that weighed, albeit to a limited extent, in my consideration of the prospects of Australian Trades' success on the final application.
2. The Conditions Decision of 27 August 2025, made by the Respondent in respect of the Australian Trades' licence, was in the following terms:

Under section 36(1)(c) of the Home Building Act 1989, I as delegate of the Secretary, impose the following conditions on licence number 300418C with immediate effect, for a period of one (1) year:

1. The Authority Holder must display, prominently and in large font, at the top of any website advertising or offering, or in any other electronic advertisement advertising or offering, the Authority Holder's services that are authorised by the Authority, the following statement: 'WARNING: As a requirement of our ongoing licencing under the Home Building Act we are required to notify you that the regulator, Building Commission NSW, has warned consumers not to deal with our company in connection with residential building works or plumbing and drainage works because of the risk that consumers may be exposed to unconscionable conduct, use of unfair contract terms, and undue harassment and coercion. A copy of the warning is available on the public register which can be accessed at verify.licence.nsw.gov.au';

2. The Authority Holder must not allow any person engaged, directly or indirectly by the Authority Holder, to attend any premises to provide a quote or advice in relation to the doing, the necessity of doing, or contracting to do, any works authorised by the Authority, unless that person is the holder of a relevant contractor licence, supervisor certificate or tradesperson certificate under the Home Building Act 1989;

3. The Authority Holder must not alter its name from Australian Trades Pty Ltd;

4. The Authority Holder must include the name Australian Trades Pty Ltd next to any trading name or other name identifying itself, when it is advertising on websites or in other electronic advertisements; and

5. Authority Holder must store and retain records of compliance with condition (1) to (4) above and provide those records on request of the Secretary within (7) days.

1. Below, where I refer to each condition separately, I refer to them by their number; for example, Condition One.
2. It is common for government decision-makers to notify a licence holder of proposed action before that action is taken. This achieves two goals: firstly, to afford procedural fairness to the subject of the decision; and second, to allow practical input that will make the decision workable. There was no mystery or surprise in the making of the Conditions Decision - proceedings were already commenced, yet somewhat surprisingly, I was informed by Australian Trades in oral submissions that the conditions Decision had been made without notice or warning, and Respondent had not afforded Australian Trades the opportunity to comment on the conditions in draft before the Conditions Decision was made.
3. The lack of consultation has, possibly, led to conditions that are drafted in such a way as to require interpretation; what, for example, is required by the term "prominently" in Condition One; what constitutes "any premises" in relation to Condition Two, does it exclude, for example, telephone attendances (which otherwise appears to be entirely unregulated, though older and often vulnerable consumers commonly telephone plumbing contractors); what is the form of records that would mean Condition Five, especially as it relates to Condition One, which applies to a live website? These are matters that, although I am not required to decide, are nonetheless relevant to my consideration of the prospects of success that Australian Trades may have in its application.
4. The Conditions Decision also foreshadowed further intended conditions, proposed to be imposed for a period of one year. However, I was informed by counsel for the Respondent that those further conditions are no longer intended to be imposed. Although I note that information, nothing was said at the hearing of this matter that prevents the Respondent from revisiting that decision or from seeking to impose other conditions if the statutory requirements are met.

Consideration of each condition in the Conditions Decision

1. As properly urged by the Respondent's counsel in oral submissions on the hearing of the application, each of the conditions within the Conditions Decision has been regarded separately.

Condition One - a stay is necessary to secure the effectiveness of the hearing, Applicant will suffer irreparable loss or harm

1. Australian Trades submitted that it would suffer irreparable harm if it were required to meet Condition One. The basis for that submission was the evidence that most of its customers are obtained through its online advertising. I accept that a statement of the kind to be imposed by Condition One would have an immediate, and, likely universally, negative effect on any person accessing the Australian Trades website. The effect of the text of the warning is necessarily amplified when it is considered in the context of being published on the Australian Trades' own website. That placement is likely to create the impression that Australian Trades accepts or admits the allegations that form the basis of the warning, or that Australian Trades is in so much trouble with the regulator that its reliability in carrying out plumbing works would be questionable.
2. I considered the likely loss of immediate custom as being a lesser matter; it is the damage to its reputation if Condition One were to be imposed that would, in my view, be irreparable.
3. The Respondent acknowledged that it was conceivable that Australian Trades might suffer some financial and reputational harm from the imposition of Condition One; but it submitted that the condition went "no further than necessary to ensure that less sophisticated and vulnerable customers who do not access the public register and/or read the news are as informed of the risks of engaging Australian Trades as consumers who do".
4. I have countenanced that submission as I am required to do so under s 60(3)(b) of the Administrative Decisions Review Act, and I give it less weight than the irreparable harm consideration because the reality is that non-reading and other vulnerable customers (who I accept are unlikely to have consulted the Respondent's register or read the newspapers) are more likely to use a telephone to contact Australian Trades, which is a method of communication that has no conditions attached to whatsoever.
5. Moreover, the terms of the warning of Condition One require that the consumer read the warning and then pursue inquiries with the public register, which leads to some circularity in the submission concerning the need to have this warning on the website to assist non-reading or vulnerable consumers. It rather suggests that the real aim of Condition One is to deter consumers from dealing with Australian Trades altogether, rather than alert customers to the risk it considers exists in dealing with the Applicant.
6. At the hearing of the application for interim relief, counsel appearing for Australian Trades informed me that he had been unable to find any authorities where the Respondent had sought to impose conditions on an authority in aid of a public warning. Given the pace of the application for relief, there may have been other instances; however, it does appear to be an unprecedented action. As I have noted elsewhere in these decisions, there are significant legal considerations to be determined at the final hearing. It would be antithetical to securing the effectiveness of the determination if Australian Trades were to go out of business or suffer from irreparable financial and reputational harm before the Tribunal has had a chance to hear the parties in full on such questions.
7. 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]. However, for the same reasons set out in my consideration of the Respondent's decision above, I am not satisfied that there would be sufficient detriment to the public in granting a temporary stay to the imposition of Condition One on the Australian Trades' contractor licence. The detriment caused to Australian Trades by the imposition of Condition One would also impact its ability to maintain staff and continue to provide work to its subcontractors - those people are also members of the public.

Condition Two - a stay is necessary to secure the effectiveness of the hearing

1. The Respondent submits that staying Condition Two "would inhibit the Secretary's ability to ensure that Australian Trades is complying with the requirements it is already subject to under s 13 of the HBA and s 6 of the Plumbing and Drainage Act 2011 (NSW)." Countering that submission, Australian Trades submitted that quoting was not work that came within either of the provisions referred to by the Respondent. Accordingly, I gave the Respondent's submission on this issue less weight.
2. I am satisfied from reviewing the terms of Condition Two that, to the extent it is capable of being properly interpreted and carried out, it is likely to significantly impact the operations of Australian Trades, leading to a detrimental impact upon its business operations. I accept that Condition Two would, in effect, require persons with particular qualifications to attend and provide quotes, where that is not otherwise required by the legislation.
3. Considering the public interest in that regard, I note that in oral submissions, counsel for Australian Trades informed the Tribunal that before any attendance by an Australian Trades representative at a consumer's home, they are sent by email the terms and conditions and a guideline concerning the Home Building Act. Of the many consumers who have made complaints against it, only one, did not receive that material.
4. On balance, I am satisfied that it is desirable for Condition Two, also, to be stayed pending further order of the Tribunal.

Condition Five - consequential, possibly unworkable

1. I consider that Condition Five, which requires the keeping of documentary records to evidence compliance with, in particular, Condition One and Condition Two, should also be stayed. It has no other real purpose other than to aid those other conditions.
2. Had that been the end of the matter, it may well have been unnecessary to grant a stay; however, I also considered Condition Five to be oppressive and unworkable in relation to Condition One, where, in effect, Australian Trades would have to provide cached versions of its website on an almost continuous basis.

1. Conditions Three and Four require that Australian Trades not alter its name, and it must include the name Australian Trades Pty Ltd next to any trading name or other name identifying itself when it is advertising on websites or in other electronic advertisements.
2. There was no evidence that Conditions Three and Four remaining in place would have any impact on Australian Trades in the way that Conditions One and Two likely would have.
3. Australian Trades' submissions in relation to these conditions were that there was no proper basis for their imposition under the Home Building Act. In particular, s 24(1) of the Licensing and Registration (Uniform Procedures) Act 2002, as modified by section 19(3)(d) of the Home Building Act, makes it a condition of each contractor licence that the licensee must notify the Respondent within seven days after the change, of any change in the licensee's name, address or other registered particulars. There was also evidence tendered in the material admitted on the hearing of the stay to show that Australian Trades always identifies itself alongside its trading names and contractor licence.
4. To underline the alleged necessity of these conditions, the Respondent tendered evidence of a business name search that showed Australian Trades had registered two further business names of "Trusty Tradie" and "Truefix Tradie" on 30 and 29 August, respectively. However, I note that at the date of the hearing, Australian Trades was not required to have notified the Respondent of those additional business names as it was within the statutory period; and there was no evidence that it was marketing itself using those names.
5. The more material failure was that the Australian Trades' submissions did not address whether it is desirable for the Tribunal to make interim orders or stay a decision in order to secure the effectiveness of the Tribunal's determination.
6. The correctness of the Conditions Decision is a matter properly to be determined at the final hearing. Australian Trades is not entitled, because it dislikes being constrained from changing its name, to a stay of those conditions.

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 and notation:

(1) The decision made on 27 August 2025 to impose conditions on the Applicant's licence is stayed pending further order of the Tribunal to the following extent:

(a) The decision to impose Condition 1 is stayed.

(b) The decision to impose Condition 2 is stayed.

(c) The decision to impose Condition 5 is stayed.

(2) The timetable set out in direction 4 by the Tribunal on 25 August 2025 is amended as follows:

(a) time for compliance with 4(a) is extended to 12 September 2025.

(b) time for compliance with 4(b) is extended to 19 September 2025.

(c) time for compliance with 4(c) is extended to 24 September 2025.

Note:

The effect of order 1 above is that no stay has been granted with respect to the decision to impose conditions 3 and 4, which concern the requirement that the Applicant not alter its name, and it must include the name Australian Trades Pty Ltd next to any trading name or other name identifying itself when it is advertising on websites or in other electronic advertisements. The application, as amended, remains listed for final hearing on 30 September 2025.

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.