Doyle v Commissioner for Fair Trading

Background

1. On 27 April 2021, the Applicant applied to vary his Carpenter & Joiners' Licence to include an Individual Endorsed Contractor Licence under the category of 'General Building Work' of the HBA.
2. On 1 September 2021, the Respondent refused to grant a licence under the category of 'General Building Work' in reliance of s33(1)(b)(1) and 33D(1)(b) of the HBA (the Refusal Letter). The Respondent concluded that the Applicant did not meet the acceptable 2 years relevant building experience and advised the Applicant that he may re-apply once he had gained a further nine months of full time equivalent building experience.
3. On 2 September 2021, the Applicant sent an email to the Respondent stating that he understood that he was eligible for the Kitchen Bathroom Laundry Renovation licence (KBLR) as follows: I would like to proceed with this licence change, please confirm I'm able to do this now and what I should expect in terms of turnaround time as my initial submission was April 2021. Could you please advise which form you require me to submit for the change of licence.
4. On 6 September 2021, the Applicant applied for an internal review of the decision set out in the Refusal Letter. On 14 September 2021, the Applicant's KBLR licence was granted.
5. On 27 September 2021, the Applicant provided the Respondent with further information for the purpose of the internal review of the decision set out in the Refusal Letter.
6. At the hearing, Ms Doyle, who had been given leave to appear for the Applicant as an agent, submitted that: 1. there was no response to the Applicant's email of 2 September 2021; 2. the Applicant did not fill in a form for a KBLR licence; 3. there had been a misunderstanding; and 4. the Applicant still sought a General Building Work Licence.
7. The Respondent submitted that the Applicant's email of 2 September 2021 indicated that he no longer sought to have an internal review of the decision as he had decided to change the application for a KBLR licence.
8. After some discussion, the parties agreed that the Tribunal would hear and determine the Applicant's application.
9. Section 55 of the Administrative Decisions Review Act 1997 (ADRA) is in the following terms: (1) An application for an administrative review under this Act of an administratively reviewable decision may only be made by an interested person. (2) Subject to enabling legislation, an application is to be made in the time and manner prescribed by the procedural rules. (3) If the interested person was entitled to seek an internal review of the administratively reviewable decision, an application may not be made unless the person has duly applied for such an internal review and the review is taken to have been finalised under section 53 (9). (4) However, the Tribunal may deal with an application for the administrative review of an administratively reviewable decision even though the applicant has not duly applied for an internal review to which the applicant was entitled if the Tribunal is satisfied that: (a) the applicant made a late application for the internal review in circumstances where the person dealing with the application unreasonably refused to consider the application and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned, or (b) it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned. (5) In determining whether a late application for internal review was unreasonably refused or whether an application to the Tribunal was made within a reasonable time for the purposes of subsection (4), the Tribunal is to have regard to: (a) the time when the applicant became aware of the making of the decision, and (b) in a case to which subsection (4) (a) applies--the period prescribed by or under section 53 for the lodging of an application for an internal review, and (c) such other matters as it considers relevant. (6) The Tribunal may also deal with an application even though the applicant has duly applied for an internal review of the decision to which the application relates, and the review is not finalised, if the Tribunal is satisfied that it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests.
10. The Applicant is not entitled to make the application to the Tribunal unless he has applied for an internal review, it has been finalised and/or is taken to have been finalised under s53(9) of the ADRA. The Tribunal finds that the Applicant never withdrew the application for an internal review despite the Respondent treating the email of 2 September 2021 as an implied withdrawal of the application for an internal review. The Tribunal can deal with the application if it is satisfied that to do so would protect the Applicant's interests pursuant to s55(6) of the ADRA.
11. The Applicant submitted that the Tribunal should deal with the application due to the period of time it has taken to progress the application and the costs to the Applicant involved in preparing for the application. The Tribunal accepts the Applicant did not intend to withdraw the application for an internal review of the decision made on 6 September 2021. Pursuant to s55(6) of the ADRA the Tribunal will deal with the application.
12. The Tribunal also took into consideration s36(2) and (4) of the NCAT Act, that the Tribunal must seek to give effect to facilitating the just, quick and cheap resolution of the real issues in the proceedings.
13. In determining an application concerning an administratively reviewable decision, s 63 of the ADRA requires the Tribunal to make the correct and preferable decision having regard to the material provided (including any relevant factual material and any applicable written or unwritten law).
14. The Tribunal may then affirm, vary or set aside the administratively reviewable decision. If the Tribunal sets aside that decision, the Tribunal can make a substituted decision or remit the matter for reconsideration by the administrator who made the original decision.

The relevant legislation

1. Section 33D of the HBA is in the following terms: (1) A supervisor or tradesperson certificate must not be issued unless the Secretary is satisfied that the applicant-- (a) has such qualifications or has passed such examinations or practical tests, or both, as the Secretary determines to be necessary to enable the applicant to do, or to supervise, the work for which the certificate is required, and (b) has had experience of such a kind and for such a period as the Secretary considers would enable the applicant to do, or to supervise, the work for which the certificate is required, and (c) is capable of doing or supervising work for which the certificate is required.
2. Section 33D(1)(b) of the HBA permits the Respondent to determine the appropriate level of experience.
3. On 31 March 2017, the Respondent issued an instrument - Qualification requirements for an endorsed contractor licence or supervisor certificate for general building work in the NSW Government Gazette No 52 of 28 April 2017 (Instrument). The Instrument defines experience as: "Experience" means experience gained by the applicant as: (a) an employee of; or (b) a holder of a supervisor certificate and as a nominated supervisor for the contractor licence held by; or (c) a holder of an endorsed contractor licence contracted to; or (d) a holder of a supervisor certificate in the capacity of a nominated supervisor for a contractor licence held by an individual, partnership or corporation contracted to; or the holder of a contractor licence authorising the holder to do the class of residential building work in which the experience was gained ("the Work"), where the applicant, during the relevant period, was: supervised and directed in the doing of the Work by the holder of an endorsed contractor licence or supervisor certificate authorising its holder to supervise the Work, and this is verified in the Relevant Application Form; and received Remuneration in accordance with law for the Work which the applicant carried out; or (e) a holder of a supervisor certificate in the category of full general building work or an endorsed contractor licence in the category of full general building work, held continuously for a minimum period of two years within 10 years from the date the application is made.
4. The Instrument states that an applicant needs to show at least two years relevant industry experience in a wide range of building construction work, where the majority of that experience was obtained within 10 years of the date the application is made.
5. Residential building work is defined in Schedule 1 to the HBA in clause 2: (1) In this Act, "residential building work" means any work involved in, or involved in co-ordinating or supervising any work involved in-- (a) the construction of a dwelling, or (b) the making of alterations or additions to a dwelling, or (c) the repairing, renovation, decoration or protective treatment of a dwelling. (2) Each of the following is included in the definition of "residential building work" -- (a) roof plumbing work done in connection with a dwelling, (b) specialist work done in connection with a dwelling, (c) work concerned in installing in a dwelling any fixture or fixed apparatus that is designed for the heating or cooling of water, food or the atmosphere or for air ventilation or the filtration of water in a swimming pool or spa (or in adding to, altering or repairing any such installation). (3)Each of the following is excluded from the definition of "residential building work" -- (a) any work (other than specialist work) the reasonable market cost of the labour and materials involved in which does not exceed the amount prescribed by the regulations, (b) any work (other than specialist work) involved in the manufacturing of a moveable dwelling, within the meaning of the Local Government Act 1993 (other than a moveable dwelling that is a manufactured home within the meaning of that Act), (c) any work involved in the manufacture, assembly or erection of a moveable dwelling that is a manufactured home within the meaning of the Local Government Act 1993 , other than-- (i) specialist work, or (ii) work involving the connecting together on the site on which the manufactured home is installed of its major sections and any associated structures forming part of the manufactured home and attaching them to footings, (d) any work (other than specialist work) involved in the site preparation for, or the assembling or erection on site of, a moveable dwelling excluded by paragraph (b), unless the work requires development consent, (e) any work referred to in paragraph (d) done in relation to land on which a council has authorised a moveable dwelling to be placed by issuing an approval under the Local Government Act 1993 , whether or not a development consent is also required, (f) any work that would otherwise be residential building work but that by or under another Act a person is prohibited from doing unless the person is the holder of a contractor licence or another authority under that other Act, but subject to subclause (4), (g) internal painting work, but subject to subclause (5), (h) any work (other than specialist work) done in relation to the removal and transport of a dwelling, but subject to subclause (6), (i) the supervision only of residential building work-- (i) by a person registered as an architect under the Architects Act 2003 , or (ii) by a person supervising owner-builder work for no reward or other consideration, or (iii) by any other person, if all the residential building work is being done or supervised by the holder of a contractor licence authorising its holder to contract to do that work, (j) demolition work, (k) any work involved in the installation of any material that forms an upper layer or wearing surface of a floor (even if installed as a fixture) and that does not involve any structural changes to the floor, but not including work involved in the installation of floor tiles unless the regulations otherwise provide, (l) any work that involves the installation or maintenance of any fixed apparatus such as a lift, an escalator, an inclinator or a garage door by means of which persons or things are raised or lowered or moved in some direction that is restricted by fixed guides. (4) Work referred to in subclause (3)(f) is not excluded from the definition of "residential building work" if it is part only of the work to be done under a contract to do residential building work. (5) Internal painting work is not excluded from the definition of "residential building work" (under subclause (3)(g)) if it is part only of the work to be done under a contract to do residential building work. (6) Work referred to in subclause (3)(h) is not excluded from the definition of "residential building work" if it is part only of the work to be done under a contract to do residential building work at the new site of the dwelling (whether or not that work is done under the same contract as the contract to remove and transport the dwelling).
6. The HBA is part of a statutory scheme that regulates aspects of the home building industry in New South Wales by providing consumer protection by regulating cancellation and suspension of contractor licences and supervisors trades persons' certificates in the industry. McGowen v Commissioner of Fair Trading [2021] NSWCATAD 46 [6].

Relevant experience claimed by the Applicant and Respondent's Response

1. The Applicant did not give evidence in these proceedings. He submits that he has a total of 29 years' experience in the building and construction industry. He relies on several references of his work as a sub-contractor, images of the finished properties and current insurance with Home Building Compensation Fund.
2. The Respondent relies on documents filed and served pursuant to s58 of the ADRA on 9 December 2021, written submissions and oral submissions by Mr Coss.
3. In order to meet the experience requirement for the licence, the Applicant relies on his experience in residential and commercial projects as set out in Referee Statements provided from Mr Neil Jones, Mr Tony Yeomans. Reliance is also placed on a Referee Letter from Mr Dennis O'Regan as well as on the construction of a secondary dwelling at his home as an owner/builder. The Applicant submits that he has residential building work experience as defined in Schedule 1 to the HBA in clause 2(1)(a), (b) and (c).
4. The Applicant relies on the Referee Statement from Mr Jones regarding work performed on two residential properties. Mr Jones states that the Applicant worked 4 days per week on properties at: 1. Bayview which involved a large renovation and extension over 8 months from 14 January 2019 to 27 September 2019. The work included carpentry, formwork, liaising with trades and client on site; and 2. Curl Curl which involved a construction of a new single dwelling house over 16 months from 5 March 2018 to 29 November 2018 and 11 November 2019 to 30 June 2020. The work performed involved formwork, concreting, carpentry frames, fit-out, site management and client liaising.
5. Mr Jones holds a Builder licence. The Referee's Statement form created by the Respondent (at pg. 125 of the s58 documents) states that: The person providing this statement: • Held a qualified supervisor certificate or individual contractor licence issued by the NDS Fair Trading during the period of time of the stated experience . • Held that Certificate or Licence in the category of General Building Work Builder during the period of time of the stated experience • Supervised and directed the applicant carrying out the work that is the subject of this referee statement.
6. In the Refusal letter, the Respondent determined that work undertaken prior to 29 March 2019 could not be considered as relevant experience as the Applicant did not hold any authority and was therefore an unlicensed subcontractor.
7. Rejecting the work undertaken prior to 29 March 2019, the remaining time worked on the Bayview property is 8 months and the time worked on the Curl Curl property is 7 months. Working 4 days out of 5 gave a total of 12 months experience.
8. At pg. 155 of the s58 documents tended by the Respondent, there is a note of a conversation between the Respondent and Mr Jones. Mr Jones confirmed that Mr Doyle supervised the site, read plans and specifications and organised trades and materials. He supervised the full site not just carpentry and was involved in other trades as well Mr. Jones recommended Mr Doyle for a full builder licence.
9. The Referee Statement from Mr Yeomans was in regard to a construction of a new residential dwelling and additions and alterations. The work was performed as a subcontractor at Wheeler Heights from June 2020 to December 2020, 2-3 days a week. At pg. 136 of the s58 documents tended by the Respondent, Mr Yeomans stated that the Applicant performed work including setting out footings, supervised steel frames, installed bearers, joists and flooring and supervised trades.
10. At pg. 158 of the s58 documents tended by the Respondent, the Respondent allocated 3 months of building experience based on the Referee Statement provided by Mr Yeomans. This seems to be on the basis that Mr Doyle worked 2.5 days over 6 months.
11. The Respondent submitted at the Tribunal that the work described in the Referee Statement from Mr Yeomans was not relevant experience as Mr Yeomans was an owner/builder.
12. The Referee Letter dated 28 June 2021 from Mr O'Regan, Director of Structus (Referee Letter), refers to the Applicant working as a sub-contractor on twelve sites. Seven of the twelve sites were commercial sites such as schools and a university. Mr O'Regan's refers to work performed by the Applicant from the first half of 2015 to April 2021.
13. The Applicant was not a licensed subcontractor from 10 November 2017 until 29 March 2019.
14. Mr O'Regan's Referee Letter states: 'Scott (The Applicant) has worked on various projects for us including the work he was responsible for and completed with his staff.' He also listed the name of each site, the nature of the projects and when the works were performed. Below is a summary of the projects listed: 1. Banksmeadow - industrial building refurbishment - first half of 2015: 1. works included all office joinery, carpet, ceiling set out, bathroom set out, membrane, bathroom portioning, bathroom fit out, doors and hardware installation 1. Kirribilli - school - second half of 2015: 1. Works included detail removal of existing fitments and preparation for refurbishment works. Works included installation of bifold acoustic doors, survey and set out for new floor finishes, bathroom fit out and partitioning. 1. Redfern - extension and rebuild of heritage terrace home - second half of 2015: 1. The works included, bathroom fit-out including overseeing service installation, membrane works, tiling, and installation of all fitments; installation of screens, doors and timber floors throughout; and the supervision of the kitchen fit-out including concrete bench works, services installation and installation of kitchen joinery. 1. Macquarie University - Sports Centre Refurbishment - December 2015 to January 2016 1. The works included overseeing detail removal of existing fit out and fitments, and then set out for the new refurbished works including new brick partitioning. Overseeing render, membrane, ceiling works and new tiling works. 2. Fit out and fit off works including toilet partition, new bathroom vanities and entry doors. 1. Rose Bay - School - December 2015 to January 2016 1. The works included overseeing detail removal of existing fit out and fitments, and then set out for the new refurbished works including new brick partitioning. Overseeing render, membrane, ceiling works and new tiling works. 2. New joinery, doors and windows works included replacement of existing windows with new weight sashed timber windows. 1. Kirribilli - Apartment - January 2016 to March 2016 1. The works included refurbishment and replacement of existing windows with new weight sashed timber windows, replacement of shingle cladding and subframe of external window boxes including all associated waterproofing works. 2. Overseeing the installation of a new sheet membrane to the timber structure flat roof portico and involved in the removal and replacement of timber plywood and structure support. 1. Mosman - School - October 2016 to December 2017 1. The works included bathroom fit out including overseeing service installation, membrane works, tiling and installation of all fitments screens and doors. 2. Manufacture and installation of joinery, installation of doors and locks, installation of acoustic walls and pinboards. 1. Hyde Park South Café - September 2019 to October 2019 1. The works included site establishment works, initial set out, timber roof framing and installation of doors and bathrooms. 1. Neutral Bay - residential property - October 2018 to April 2019 1. The works included strip out of existing bathrooms and overseeing service amendments, render works, membrane and tiling works. 2. strip out of existing laundry and kitchen, overseeing service amendments, render works, membrane and tiling works. 3. Ceilings and fit out including joinery in bathrooms, laundry and kitchen. 1. Rose Bay - School - November 2018 to February 2019 1. The works included revised stair linings and support frames 1. Bondi - Apartment - March 2020 to March 2021 1. The works included strip out of existing apartment, coordinating service installation, membrane and bathroom tiling works, floating floor installation and skirtings, framing works to ceiling structure as documented by engineer, all joinery, timber screening and panelling manufacture and installation. 2. Installation of timber doors and frames. 3. New joinery, doors and windows works included replacement of existing windows with new weight sashed timber windows. 1. Neutral Bay - Apartment - October 2020 to April 2021 1. The works included strip out of existing bathrooms and overseeing service amendments, render works, membrane and tiling works. 2. strip out of existing laundry and kitchen, overseeing service amendments, render works, membrane and tiling works. 3. Ceilings and fit out including joinery in bathrooms, laundry and kitchen.
15. Mr O'Regan concluded that the Applicant has experience in new construction work including foundation and concrete structure, metal and timber framing, roofing and building facades.
16. In completing the work for Mr O'Regan, Mr Doyle co-ordinated and supervised trades and negotiated the contract with Mr O'Regan.
17. The Respondent did not consider that the work performed by the Applicant as contained in Mr O'Regan's Referee Letter as relevant experience because it was not of a wide range and did not involve structural changes in internal renovations. The work described was not completed in a prescribed form and the commercial work was not considered to be 'relevant' experience.
18. The Applicant relies on the construction of a secondary dwelling at his home as an owner/builder. The Tribunal has been supplied with a letter from a Consulting Engineer stating that he carried out periodic inspections on this work but there is no evidence of any supervision.
19. At the hearing the Respondent submitted that based on its assessment of the evidence, the Applicant had an overall total of 15 months experience.

Consideration

1. A useful summary of the wide range of building work required to be demonstrated by a person seeking a contractor licence was stated by Deputy President Hennessy in Locking v Department of Finance and Services [2013] NSWADT 239 at paragraphs 18-19: 18. A building contractor has the overall responsibility for a site and must be able to supervise all of the trades required to complete any type of dwelling. Additionally a builder must be able to determine that all trades have complied with all standards and requirements.

19. A building contractor is also able to contract with the public, and must therefore be able to negotiate a contract, quote for a project and co-ordinate the trades to be able to complete the project on time and within budget. He or she must also be able to negotiate and discuss the jobs with council and private certifiers to ensure that the work is passed fit when appropriate.
20. There are many trades included in the 'wide range of building work' which include: flooring, bricklaying, stonemasonry, wet plastering, painting, decorating, general concreting, tiling, demolishing, fencing, glazing and waterproofing. Schedule 1 to the HBA in clause 2 defines residential building work broadly, including renovations, decoration and alterations to dwellings.
21. In regard to the circumstances in this case, the Tribunal accepts the Respondent's submission that it must be satisfied that the Applicant's experience be consistent with the definition in the Instrument, the Applicant must demonstrate that he has two years' experience in a wide range of building construction work completed in the last 10 years.
22. Experience gained on commercial building sites can be considered to be relevant experience for the purpose of demonstrating residential building construction work, and respectfully adopts the view taken by SM Montgomery in McGowen v Commissioner of Fair Trading [2021] NSWCATAD 46 In my view, the totality of his experience should be taken into account. This includes both commercial and residential building work. Skills that are developed in commercial building work are equally applicable to residential building work and that experience should be taken into account. I am also satisfied that experience that the Applicant gained outside the 10 year period provided for by the Instrument should be taken into account where that experience has provided a foundation for the work that was carried out more recently. In my view, this is a matter in which an injustice would result if the Instrument were applied inflexibly as it would not allow valuable experience to be taken into account.

Mr Jones' Referee Statement

1. In regard to the Referee Statement from Mr Jones, the Respondent submits that work prior to 29 March 2019 could not be considered as relevant experience as the Applicant did not hold an endorsed contractor licence which is required to be held for the purpose of experience gained by the Applicant, set out in the Instrument. The Applicant did not make any submission that the Tribunal should consider the Applicant's work prior to 29 March 2019.
2. Accepting the Respondent's submission, work performed on the Bayview and the Curl Curl properties demonstrates sufficient experience of building works of 12 months, 4 days out of 5 days a week. The work performed falls within the definition of construction of a dwelling and making of alterations or additions to a dwelling.
3. The evidence from Mr Jones demonstrates that Mr Doyle's experience is wide ranging. The work on the property at Curl Curl was a construction of a new dwelling. It involved work from liaising with the client, working from plans, supervising tradespeople, managing the site, which I take to mean, negotiating with suppliers and dealing with council or private certifiers. Mr Doyle was involved in laying out the slab and setting out the framing.
4. Similar experience is indicated in regard to the large renovation and extension on the property at Bayview.

Mr Yoemans' Referee Statement

1. The work performed at Wheeler Heights involved a construction of a new residential dwelling and additions/alterations. Mr Yoemans described Mr Doyle's roles and responsibilities as wide ranging building skills, including supervising tradespeople, overseeing pool installation, setting out footings and framing of the dwelling.
2. The building work performed was between June 2020 to December 2020 on an average of 2.5 days a week is a total of 3 months.
3. Mr Yoemans declared in the Referee Statement that the Applicant was supervised by him in carrying out a wide range of building work and this building work occurred whilst he held a Qualified Supervisor Certificate or an Individual Contractor Licence.
4. I reject the Respondent's submission made in this Tribunal that the Applicant's building experience as described by Mr Yeomans should be disregarded because Mr Yeomans was an owner/builder.
5. The considerations that Tribunal relevantly must consider in regard to experience is as defined in the Instrument to be the nature of the work performed, the qualifications of the person who supervised and directed the Applicant's work and the receipt of remuneration.
6. The Tribunal is satisfied that the Applicant performed a wide range of building work for the time period declared in the Referee Statement and that during this time Mr Yeomans supervised and directed the Applicant's work. Which can be described as a construction of a new dwelling.
7. I adopt the Respondent's decision at pg. 158 of the s58 documents tended by the Respondent, allocating 3 months of building experience based on the reference provided by Mr Yeomans.

Mr O'Regans' Referee Statement and Letter

1. The central dispute between the parties concerns the Referee Statement and Referee Letter from Mr O'Regan, Director of Structus.
2. On 21 July 2021 Mr O'Regan declared in the Referee Statement that the Applicant was supervised by him in carrying out a wide range of building work and this building work occurred whilst he held a Qualified Supervisor Certificate or an Individual Contractor Licence. The Referee Statement included reference to the building sites at Bondi for a period of 3 months, 14 days and at Neutral Bay for 2 months and 14 days.
3. On 28 June 2021 Mr O'Regan provided a Referee Letter for the Applicant including all of the twelve building sites as set out in paragraph 35 above.
4. The Respondent submits that the Referee Letter is not acceptable in lieu of the prescribed Referee Statement and should not be considered.
5. Secondly, the Respondent submits that the commercial construction work set out in the Referee Letter is not considered relevant experience for the purpose of demonstrating residential building construction work experience.
6. Thirdly, the Respondent submits that the experience set out in the Referee Letter is not considered to be relevant experience for the purpose of demonstrating wide range of residential building construction work experience.
7. Pursuant to s63(1) of the ADRA the Tribunal is to decide what the correct and preferable decision is having regard to the material before it. I consider that the Referee Letter from Mr O'Regan was relevant and should not be excluded because it was not in a specific form created by the Respondent.
8. The Tribunal does not accept the Respondent's submission that commercial construction experience is not to be considered as relevant experience for the purposes of demonstrating residential building work experience.
9. The Tribunal notes the Applicant's submission in his letter to the Respondent seeking an internal review that commercial projects set out in Mr O'Regan's Referee Letter are relevant to demonstrating residential building construction work as it includes the trades associated with residential building construction such as: demolition, excavation, electrical, hydraulic, mechanical, steel fixing, framework, concreting, waterproofing, structural steel, blockwork, roofing, glazing, gyprocking and mechanical.
10. In Shoobridge v Commissioner of Fair Trading [2015] NSWCATOD 42, Senior Member Molony held that experience gained under the supervision of a person who is a 'holder of an endorsed contract or a supervisor certificate' is relevant experience [20] and that whether experience gained on any building site whether residential or commercial is relevant industry experience is a question of fact to be determined in each case [53].
11. As to the submission that the work performed by the Applicant involved minimal structural construction work and is not to be considered as relevant experience, attention must be focused on the details set out in the Referee Letter as set out in paragraph 35 above.
12. The Tribunal agrees with the Respondent that in regard to the Referee Letter from Mr O'Regan, the Applicant's evidence demonstrates that he has substantial experience of carpentry, joinery and fit-out work. However there is also experience of both metal and timber framing, refurbishment, site establishment works, initial set out and timber roof framing. The Tribunal accepts this experience as wide ranging building work.
13. In regard to the Referee Letter from Mr O'Regan, many of the projects overlapped in time. For example, the Bondi project was completed between March 2020 to March 2021 and the Neutral Bay project was completed between October 2020 to April 2021. This is an overlap of some 12 months. However taking into account the overlapping and only counting the period of work once, there is evidence of general building work, albeit with a strong emphasis on renovations and fit outs over a five year period from 2015 to 2021.
14. This evidence of general building work, taken together with the evidence of a construction of a dwelling and the making of alterations or additions to a dwelling in the References from Mr Jones and Mr Yeomans, the evidence of the work of renovations, decorations and protective treatment of a dwelling provided in the Referee Letter from Mr O'Regan satisfies the Tribunal that the Applicant has demonstrates a wide ranging general building work experience over a two year period.
15. The Tribunal is satisfied that between 2015 to 2021, there is evidence of at least nine months of wide ranging general building work experience based on the Referee Letter.
16. Mr O'Regan's belief that the Applicant is an experienced construction worker with experience in new construction including foundation and concrete structure, metal and timber framing, roofing and building facades is broadly supported by his description of the work the Applicant performed.

Building Experience

1. The Tribunal is satisfied that the Applicant has demonstrated: 1. 12 months of general building work based on the Referee Statement by Mr Jones for work performed between January 2019 to June 2020. 2. 3 months of general building work based on the Referee Statement by Mr Yoemans for work performed between June 2020 and December 2020. 3. 9 months of general building work based on the Referee Letter from Mr O'Regan, in regard to work performed from 2015 to 2021.
2. The Tribunal is satisfied that the Applicant has the requisite two year experience in general building work to enable him to complete or provide supervision of work and therefore the licence should be granted.

Order 1. The Tribunal deal with the application pursuant to s55(6) of the Administrative Decisions Review Act 1997. 2. The decision under review is set aside. 3. In substitution for that decision, the Tribunal grants the Applicant an individual endorsed contractor licence in the category 'general building work' under the Home Building Act 1989.

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: 16 December 2022