Despot v Secretary, Department of Customer Service

Texts Cited: None Cited

Category: Procedural rulings

Parties: Boris Despot (Applicant)
Secretary, Department of Customer Services (Respondent)

Representation: McCallum Lawyers (Applicant)
Legal, Department of Customer Service (Respondent)

File Number(s): 2026/00370772

Publication restriction: Nil

REASONS FOR DECISION

Introduction

1. Boris Despot, the Applicant, commenced proceedings in this Tribunal seeking administrative review of the decision of the Respondent, the Secretary, Department of Customer Service, to refuse to renew his qualified supervisor licence (Certificate No. 82498S).

2. At the same time as filing his application for administrative review, the Applicant also applied for interim orders that his qualified supervisor licence remain on foot pending final determination of the proceedings.

3. It is the application for interim orders that is determined here.

Relevant Facts

4. The Applicant has held a qualified supervisor certificate in the category of general building work since about March 2018.

5. It seems that the Applicant operated a building business through a company, Aranea Group Pty Ltd, in respect of which he was the sole director until it was placed into liquidation after a voluntary winding up on 12 March 2025.

6. The liquidation arose from Aranea Group's inability to meet its debts, including a taxation debt.

7. As a result of the winding up, a liquidator was appointed, and the Applicant’s day-to-day duties as director were suspended.

8. Aranea Group had held a contractor licence in the general building category from March 2018 until 17 March 2025. The Respondent cancelled its contractor licence from 17 March 2025 due to the liquidation.

9. The Applicant had applied for renewal of his qualified supervisor licence on 12 March 2026. The Applicant says he provided the Respondent with details and documents concerning the liquidation of Aranea Group when he submitted his renewal application.

10. Aranea Group was deregistered on 13 March 2026 (i.e. the day after the Applicant lodged his renewal application).

11. In April 2026, the Building Commission NSW sought further information from the Applicant concerning the liquidation of Aranea Group, which the Applicant provided.

12. After considering the materials and the facts as known, the Respondent refused to renew the Applicant’s qualified supervisor authority and communicated that decision with reasons on 3 July 2026. The refusal decision was to take effect on 3 August 2026, being the renewal date for the Applicant’s qualified supervisor licence. In the interim, the Respondent conditioned the Applicant’s licence on not entering into any new contracts.

13. The Applicant sought an internal review of this decision on 29 July 2026.

14. On 18 August 2026, the Respondent gave notice of its decision on internal review. It affirmed the refusal to renew, though for different reasons. The Respondent did not maintain the original conclusion that the Applicant was not a fit and proper person. Instead, the internal review affirmed the refusal to renew the Applicant’s licence on the basis that he was a director of a company in liquidation on the day he lodged his renewal application.

15. On 7 September 2026, the Applicant applied for administrative review of the decision refusing to renew his licence.

Legal Context

The legislation regulating building licences

16. Aside from specific exceptions, a person is prohibited from carrying out residential building work without a licence: Home Building Act 1989 (NSW), s 12.

17. The Respondent must refuse an application for a supervisor or tradesperson certificate if not satisfied as to the matters set out in ss 33B and 33D of the Home Building Act; that is the effect of the Home Building Act, s 25(1)(a1).

18. At this early stage of the proceedings, the parties were yet to fully articulate their positions with respect to which position or consideration applied in this case; and I do not intend to bind either party to their submissions in that regard. Nor would it be appropriate to consider or comment upon the respective positions of the parties where neither party has had time to articulate their position in the context of external review proceedings.

19. At this stage, therefore, and only to the extent necessary to identify the provisions considered relevant by the parties, their respective positions may be summarised as follows:

20. The Applicant submits that the discretion in s 33B(5) of the Home Building Act is likely to apply in this instance with the effect that the Tribunal would be satisfied (after hearing the evidence) that such discretion should apply in his favour; whereas

21. The Respondent submits that the application would be properly refused by the Tribunal having regard to the facts as presently understood and the application of the relevant statutory provisions, in particular s 25(1)(a1), and that the discretion under s 33B(5) should be informed by matters including the considerations set out in s 33C(3) of the Home Building Act.

22. Both parties addressed the discretion point, and in that regard, I note that in Diab v Secretary, Department of Customer Service [2026] NSWSC 693 at [17]-[32] Sirtes J recently considered the existence of the discretion in s 33C of the Home Building Act, albeit with respect to a disqualification. The analysis in Diab suggests, however, that inserting the word “may” in a statutory provision creates only a prima facie presumption of discretion, which may be displaced by the statutory context and other provisions.

The law relevant to the making of interim orders by the Tribunal

21. 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.

22. 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.

23. The text of s 60 as a whole is as follows:

(1) Subject to this section, an application to the Tribunal for an administrative review under this Act of an administratively reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision.

(2) On the application of any party to proceedings for an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application.

(3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account:

(a) the interests of any persons who may be affected by the determination of the application, and

(b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and

(c) the public interest.

(4) While an order is in force under this section (including an order that has previously been varied on one or more occasions under this subsection), the Tribunal may, on application by a party to the proceedings, vary or revoke the order by another order.

24. 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, in effect, 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.

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

26. The onus is on the Applicant to demonstrate the need for a stay, and by analogy, the need for interim orders: Vaughan v Dawson [2008] NSWCA 169.

The extent of the Tribunal’s power to make interim orders

27. On the hearing of this application, the Respondent contended that the power of the Tribunal under s 60 to make interim orders did not extend to the granting of what it described as “an interim qualified supervisors licence”. The Respondent’s submission on that issue culminated in the proposition that the Tribunal lacked power to grant the Applicant the relief he sought.

28. The Respondent submitted, specific to the facts of this case, that since the Applicant’s licence had expired before he sought external review in the Tribunal and that, on a proper construction of s 60(2) of the Administrative Decisions Review Act, the Tribunal’s power does not extend to issuing a new licence; rather, its power is limited to restoring “the legal status quo prior to the decision” being made.

Consideration of the reasoning in Mubhiza-Tudela v Secretary, Department of Customer Service

29. In support of its submissions concerning the limited power of the Tribunal to make the interim order sought by the Applicant, the Respondent referred the Tribunal to an unreported decision of Senior Member Little in Mubhiza-Tudela v Secretary, Department of Customer Service (Civil and Administrative Tribunal (NSW), 9 October 2025, unpublished). In that case, Senior Member Little declined to make interim orders regarding a plumbing licence whose renewal had been refused.

30. The Tribunal in Mubhiza-Tudela appears to have based its determination on the fact that the subject matter of the application was not amenable to a stay because there was nothing, in fact, to be stayed.

31. In my respectful opinion, the decision does not appear to have considered the Tribunal's power under the second limb of s 60(2), which empowers it to make orders “otherwise affecting the decision under review”. That is the power relevant here, and the parties before me made no submission to the contrary.

Consideration of the reasoning in Hards v Commissioner for Fair Trading

32. At the hearing I referred the parties to some parts of my decision in Hards v Commissioner for Fair Trading (Civil and Administrative Tribunal (NSW), 12 February 2026, unpublished) and read out some of the more relevant passages to alert the Respondent, in particular, that I had previously expressed a view contrary to that of the Tribunal in Mubhiza-Tudela.

33. Relevantly, in Hards at [17]-[22], I observed that:

“[17] My understanding of the text and effect of s 60 is that it permits the Tribunal to make interim orders that affect the decision under review. The power granted to the Tribunal is wider than the ability to grant a stay of an administrator’s decision; it extends to the Tribunal making appropriate interim orders to secure the effectiveness of its process. I considered my view consistent with the construction of s 60 given by Basten JA in AVS Group at [16], though that case involved whether to temporarily reinstate a licence revoked by the decision under review.

In AVS Group at [18], Basten JA went on to state:

18. It is arguable that the second limb of s 60, (referring to an order “otherwise affecting the operation of the decision under review”) would allow the Tribunal to suspend the operation of a revocation of a licence, or reinstate the licence on a temporary basis. That approach may gain support from the scope for a final decision on a review to operate from the date of the original decision: ADT Act, s 66(2)(b). Arguably that could be done by retrospectively varying the date from which the Commissioner’s order was to have effect. Although the Tribunal did not make an order otherwise than in terms of a “stay”, the question of statutory construction should be addressed having regard to the scope and effect of the orders available under s 60. Indeed, it was assumed by the applicants that the order in fact made allowed them to continue to operate, as if they held valid licences.

19. There is no doubt that an order in the nature of a “stay” made pursuant to s 60 is an order separate and distinct from the kind of final order which may be made in determining an application for review of a reviewable decision: ADT Act, s 63(3). Nevertheless, it is a decision made in the course of review proceedings, which will affect, on a temporary basis, the operation of the reviewable decision. It is made in circumstances where the statute provides that the making of an application for review does not itself affect the operation of the decision: s 60(1).

[18] In Stuart v Commissioner for Fair Trading [2018] NSWCATAD 39, the applicant was refused a tattoo parlour operator’s licence and sought interim orders granting a temporary operator’s licence pending the determination of the Tribunal proceedings. Hennessey LCM, DP, at [6], referred to the conclusion in AVS Group that the powers of the Tribunal under s 60 were wide enough to temporarily reinstate a licence, then concluded, at [7]:

Applying the same reasoning to this case, the Tribunal has power to make an order which has the effect of temporarily granting an operator's licence. …

[19] In answer to that construction of s 60, the Respondent submitted that, s 60 is directed towards the administrator’s decision and in this case, as the licence renewal was refused rather than an existing licence revoked; what the Applicant is asking is for the Tribunal to make orders to have the Respondent issue him with a real estate agent licence on a temporary basis which is a step further than making orders affecting the decision per se. The Respondent, referring the Tribunal to some observations in Aboukalam v Commissioner for Fair Trading [2020] NSWCATOD 46 at [7]-[15], where Ransome PM, expressly stating that the Tribunal was not expressing a concluded view, wrote that making an order granting a licence of some kind would not be “appropriate to secure the effectiveness of the determination of the application." Aboukalam distinguished Stuart and referred to the Tribunal decision in Georges River Holdings Pty Ltd v Commissioner for Fair Trading [2019] NSWCATOD 120 where at [31], Pearson PM also considered it unnecessary to express a concluded view on whether the issuing of a temporary licence was with the power granted to the Tribunal under s 60, but outlined some significant differences between the regulation of tattoo parlour operators and other occupational licence holders. The Tribunal in Aboukalam and in Georges River Holdings declined to express a concluded view on the extent of the power of the Tribunal to make interim orders, preferring instead to address the specific considerations contained in s 60 of whether such orders should be made.

[20] The Applicant, by his counsel, submitted that the power under s 60 was analogue to powers of the former federal Administrative Appeals Tribunal, s 41 of the former Administrative Appeals Tribunal Act 1975 (AAT Act). In decisions such as Stuart and Williamson v Director General, Department of Transport [2000] NSWADT 165, this Tribunal (and its predecessor) has referred to s 41 of the AAT Act as being equivalent to s 60, and I accept that is the case.

It was on that basis that the Applicant, in submissions, then referred to Civil Aviation Safety Authority v Hotop, Deputy President Administrative Appeals Tribunal [2005] FCA 1023, where at [43]-[46], before concluding that the federal tribunal had a power to make positive orders (for example granting a temporary licence) Siopis J stated three propositions on which such a conclusion was based.

(1) The first being that s 41 of the AAT Act was to be given a broad interpretation – such an approach is readily adopted with respect to s 60.

(2) The second that there is nothing in the language of s 41 of the AAT Act that precluded the making of so-called positive orders – similarly, no preclusion is to be found in the text of s 60. Moreover, as Siopos J noted at [45]:

‘… In other words, the order of the Tribunal affects the operation of the impugned decision because it neutralises its adverse effect and anticipates a favourable decision with retrospective effect may replace the impugned decision.’

(3) Third, the interpretation that s 41 could only be used to stay (or negative) a decision of the Respondent would, as Siopis J put it:

‘…substantially undermine the Tribunal’s capability to provide effective relief in cases where the operation of the impugned decision would result in the applicant for review having to cease carrying on an existing business pending the hearing of the application for review. …’

[21] On balance, and I accept that the question is not settled, I consider that the text of s 60, which provides for either party to apply to the Tribunal to make “other” orders, likely extends to directing the Respondent to grant a temporary licence, where the Tribunal is satisfied it is desirable to do so, having regard to the matters set out in s 60(3). To argue otherwise would be to ignore the scope of the so-called second limb of s 60(2) and undermine the Tribunal’s capacity to provide relief tailored to the circumstances of each case.

34. I also noted in Hards at [16] that the position taken by the respondent in that case was not one consistently adhered to and referred by way of example to the position of the respondent taken in Gearin v Commissioner for Fair Trading [2023] NSWCATOD 155.

35. Ultimately, I declined to make the interim orders sought in Hards on the basis that I did not consider that it was necessary to make orders in order to secure the effectiveness of the Tribunal’s determination. Accordingly, the analysis above was not determinative. I note that because, like Mubhiza-Tudelam, the decision in Hards was unpublished*,* the parties could not address me in relation to that earlier determination.

Consideration of the reasoning in Arise Solar Pty Ltd v Secretary, Department of Customer Service

36. After the hearing of the present application and before the determination of it, the Tribunal published a further decision, Arise Solar Pty Ltd v Secretary, Department of Customer Service [2026] NSWCATOD 126, in which Principal Member Ransome again considered the extent of the Tribunal’s powers to make interim orders under s 60(2) in factual circumstances that are substantially similar to the present case.

37. As in this case, the respondent in Arise Solar relied upon the decision in Mubhiza-Tudela to support its contention that the Tribunal did not have power to make an order effectively reinstating an expired or refused licence.

38. In Arise Solar, Principal Member Ransome observed at [22] that she had not expressed a concluded view on the extent of the power in the earlier decision of Aboukalam v Commissioner for Fair Trading [2020] NSWCATOD 46 (which was discussed in the passage above from Hards*)*.

39. At [27]-[39] of Arise Solar, Principal Member Ransome examined the statutory framework in the Home Building Act with respect to licences and authorities which apply to this case in the following terms:

‘[27] It is important to note that the power in s 60(2) of the ADR Act concerns the continuing effect of the decision under review. Bearing that in mind, it is important to understand some other provisions in the Home Building Act and the ADR Act.

[28] Section 40 of the Home Building Act deals with the renewal of an authority, such as a contractor licence, under that Act. Section 40(1) provides:

40 Renewal of authorities

(1) The provisions of this Act and the regulations that apply in respect of the issue of an authority also apply to the renewal or restoration of an authority (as if the renewal or restoration of an authority were the issue of the authority).

[29] Section 40(1) makes clear that the renewal (or restoration) of an authority is a continuation of a previously granted authority, not the grant of a new authority. However, in considering whether to renew or restore an authority, the Secretary must be satisfied of the same matters, such as fitness and propriety, that apply to the grant of the particular authority. If the renewal, for example, is granted, the existing authority continues in force.

[30] Another relevant provision in the Home Building Act is s 42(3) which provides:

42 Term of duration of authority

…

(3) If an application for renewal of an authority has been made but the application is not finally determined by the Secretary before the expiry of the authority, the authority (if not suspended or sooner cancelled) continues in force until the application is finally determined.

[31] Section 42(3) operates automatically upon the occurrence of an event, namely the expiry of the licence. When the licence expired on 13 August 2026 it was therefore automatically continued under the provision.

[32] Section 66 of the ADR Act deals with the effect of an administrative review decision. In general, a decision determining an application for an administrative review takes effect on the date on which it is given or such later date as may be specified in the decision: s 66(1). Where the decision varies, or is made in substitution for, an administrator’s decision, the decision of the Tribunal is taken to be the decision of the administrator and to have had effect as the decision of the administrator: s 66(2)(a). Under s 66(2)(b) the decision has effect on and from the date of the administrator’s actual decision, unless the Tribunal orders otherwise.

[33] As was stated by the High Court, the decision of the Tribunal is deemed by s 66(2)(a) of the ADR Act to be the decision of the agency: State of New South Wales v Wojciechowska [2025] HCA 27 at [25]. In AVS, Basten JA was of the view that s 66(2)(b), which provides for the Tribunal’s decision to operate from the date of the original decision, gave support to the contention that an order under s 60 “otherwise affecting the operation of the decision under review” would allow the Tribunal to suspend the operation of a revocation of a licence or reinstate the licence on a temporary basis. He stated that, arguably, that could be done by retrospectively varying the date from which the original decision was to have effect: at [18]. In this case, Arise Solar, submits it would be very strange if the final decision of the Tribunal might be to set aside the decision to refuse to renew the licence (which would have effect of granting the renewal from the date of the refusal decision), but an interim order could not be made to reflect the final order that may be made.

[34] In Aboukalam the applicant simply sought the grant of a temporary licence. In this matter Arise Solar submits that it is not seeking the grant of a new or temporary licence but is seeking to extend the existence of the licence which was sought to be renewed. Arise Solar points out that the statements by the Basten JA and Campbell JA that the power in s 60(2) permits a licence to be temporarily reinstated were made in the context of dealing with an application which had been revoked. This application is not in relation to the revocation of a licence but concerns a refusal to renew a licence previously granted.

[35] As was stated in AVS, the power in s 60 is very broad. While AVS was concerned with the revocation of a licence, the principles to be drawn from that case are applicable to the current matter where an application to renew a licence has been refused. The factor which is different to the circumstances applying in AVS is that here the licence expired consequent upon the refusal decision. The Secretary regards that fact as determinative of the issues but that is because the Secretary is of the view that the effect of an order under s 60 would be to grant a new or temporary licence.

[36] The order sought by Arise Solar operates on the decision to refuse the renewal application. In my view, it does not operate as the issue of a new or temporary licence. The order would suspend, or qualify, the legal operation of the decision to refuse to renew the licence until the Tribunal determines the substantive review or makes a further order.

[37] The application by Arise Solar was made some months before the expiry of the licence. The licence was due to expire on 13 August 2026 which was prior to the Secretary’s determination of the internal review application. By virtue of s 42(3) of the Home Building Act the licence automatically continued until the Secretary made a final determination on 21 August 2026. The decision to refuse the renewal application brought that continuation of the licence to an end. Importantly, the licence continued beyond the date upon which it otherwise expired and was in force as at the date of the decision to refuse the renewal application.

[38] The Secretary submits that s 42(3) of the Home Building Act is not relevant to the current application. In my view, the Tribunal has the power under the broad provision in s 60 of the ADR Act to make an order otherwise affecting the operation of the decision to refuse to renew the licence such that the decision does not operate as a final determination of the Secretary during the period of the order. By virtue of s 42(3) of the Home Building Act, as the application to renew is not finally determined, the licence would then continue in force until the renewal application is finally determined in an operative way by the Tribunal either affirming the decision of the Secretary or varying the decision or making a decision in substitution, decisions which take effect as the final determination of the Secretary from 21 August 2026.

[39] In these circumstances, the Tribunal is not making an order under s 60 granting a new or temporary licence. The licence in fact automatically continues under s 42(3) of the Home Building Act until it is finally determined by the Secretary.

Conclusion – the Tribunal has power to make interim orders in this case.

40. I have extracted such a lengthy portion of the reasons from Arise Solar because of the contentions raised by the Respondent and because I entirely agree with the analysis of the provisions in the passage extracted above.

41. In the application for interim orders, the Applicant seeks that the decision be stayed pending determination of the review “and that certificate S82498S be treated as continuing in force in the meantime”. The nature of that relief places this matter on all fours with Arise Solar.

42. Like the facts in Arise Solar, the Applicant had applied for renewal of his licence on 20 April 2026 several months before it was due to expire on about 3 August 2026. The Respondent refused the Applicant’s renewal application on 3 July 2026, which was due to have effect on 3 August 2026, being the date on which the qualified supervisor authority was to expire. The Internal review was completed on 21 August 2026, and the Applicant applied for external review on 7 September 2026. Section 42(3) of the Home Building Act automatically continues the application after its expiry date. The final determination and decision of the agency will be that of the Tribunal: that is the effect of s 66(2)(a) of the Administrative Decisions Review Act.

43. As I noted in Hards, to argue otherwise would be to ignore the scope of the so-called second limb of s 60(2) and undermine the Tribunal’s capacity to provide relief tailored to the circumstances of each case.

44. Accordingly, I reject the submission of the respondent that the Tribunal cannot grant the Applicant the order he seeks, which is to allow his licence to continue. However, that is not the end of the matter. The fact that the Tribunal has power does not automatically mean that it can or should be exercised.

Consideration of the application for interim orders

45. As noted above at paragraph 21 above, the purpose of the Tribunal’s power to make interim orders is to secure the effectiveness of the Tribunal’s ultimate determination.

46. In considering whether the power under s 60(2) should be exercised, the Tribunal was not provided with any evidence to establish that, without the making of interim orders, the Applicant would be unable to pursue his application in the Tribunal or that, by the time the Tribunal finally determined his matter, its decision would be moot or ineffective.

47. At its highest, the Applicant’s submissions went to the fact that his current business would be unlikely to survive if he was not permitted to continue as a qualified supervisor. Further, his ability to earn income would be substantially impacted. This is not irreparable harm in the sense that there can be no recompense: Re Pelling and Secretary Department of Aviation [1984] AATA 176 at [6], cited in Loveday and QLD Security.

48. There was no direct evidence in the form of financial, accounting or business records that might have set out the viability of the business with and without the Applicant. While I can accept that this business may be shuttered temporarily, that fact does not, in my view, mean the Tribunal’s decision is in jeopardy.

49. There was no evidence concerning the Applicant’s ability to earn income more generally. It was inferred that he would be unable to work or gain income without the continuation of his authority. I do not accept that submission or inference. I accept there may be impacts, but nothing before me suggested that the Applicant could not find other employment.

50. The Tribunal recently found itself in a similar position in two decisions which the Respondent cited in its written submissions: Lincoln Wilson and Anor v Secretary, Department of Customer Service [2025] NSWCATOD 29 and WAM Hotels Pty Ltd v Independent Liquor and Gaming Authority [2026] NSWCATAD 45.

51. I am not satisfied that interim orders are necessary to secure the effectiveness of the decision. Even if the evidence concerning the Applicant’s new company were more substantive, I consider that material would be a relevant consideration under s 60(3) which is not reached on these facts.

52. Had I been satisfied that it was necessary to make orders to secure the effectiveness of the Tribunal’s decision, I would then have to have considered the mandatory factors set out in s 60(3). Had I been so satisfied, then the following matters would have been relevant to the question of whether such orders would be made and what conditions should be applied:

53. the Applicant has the right to pursue administrative review, and I have concluded, at least on a preliminary basis, that his claim is not hopeless.

54. I accept that without the continuation of the qualified supervisor authority, the Applicant’s ability to earn income is going to be impacted. However, I do not accept that he will have no ability to find employment on any basis.

55. I accept, too, that his current business, of which he is the nominated supervisor, will be impacted. The evidence did not establish the extent of that impact, however though. I may infer that the employed tradesperson of that business may be impacted, but not clients since his licence has been constrained for some time now. Ultimately none of those matters would have shifted the balance in favour of granting relief.

56. The Respondent’s opposition is noted.

57. There is significant public interest in ensuring the integrity of the residential building sector and ensuring compliance with its regulatory regime. However, in this case, there are no allegations of public safety, and the Respondent no longer maintains its finding that the Applicant is not a fit and proper person.

Conclusion and orders

53. I have concluded that it is not necessary to make interim orders allowing the Applicant’s qualified supervisor authority to continue pending determination of his application in the Tribunal.

54. I formed the impression that the substantive proceedings have been listed for directions in the usual course and so I will not make timetabling directions. If that is not the case, the parties should urgently approach the Tribunal registry and request that the matter be listed in the usual administrative review directions list.

55. Accordingly, I make the following order:

56. The application for interim orders is refused.

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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