Simon Elias applied for an individual contractor licence in the category of general building work. At the time he made the application for the licence Mr Elias was a director of a company, AKL Junior Pty Ltd, which held a building licence. The company was required to have a nominated qualified supervisor in order to hold a licence. The reason Mr Elias applied for the licence was so that he could do building work in his own right without the need to have a nominated qualified supervisor.
The Commissioner for Fair Trading refused that application because the Commissioner was not satisfied that Mr Elias had demonstrated that he had the relevant experience to be granted the licence. That is, that he had a minimum of two years relevant industry experience in a wide range of building construction work. Mr Elias has sought review of that decision.
In passing, I note that the licence of AKL Junior Pty Ltd was cancelled in June 2020 as the company had no nominated supervisor. Mr Elias is currently employed with CPK Building Group as a project manager.
[2]
The relevant legislation
The Home Building Act 1989 ("the Act") is part of the legislative scheme which regulates many aspects of the home building industry in New South Wales. The scheme is concerned to provide consumer protection including regulating the issue, suspension and cancellation of various licences in relation to residential building work.
Section 19 of the Act provides that a contractor licence may be granted for the purposes of the Act. The Commissioner must refuse an application for a contractor licence if, relevantly, he or she is not satisfied as to the matters of which he or she is required to be satisfied by sections 33B and 33C of the Act (s 20(1)(1a)).
Section 33C(1)(b)(i) of the Act provides that a licence must not be issued unless the Secretary is satisfied that the applicant, if also applying for an endorsement of the contractor licence, "satisfies the requirements of section 33D for the issue of a supervisor certificate to the applicant".
Section 33D provides:
33D Additional requirements for obtaining supervisor and tradesperson certificates
(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.
In determining that Mr Elias did not have the requisite experience for the purposes of s 33D(1)(b), the Commissioner relied upon a document headed "Instrument - Qualification Requirements for an endorsed contractor licence or supervisor certificate for general building work" dated 31 March 2017 ("the Instrument"). The Instrument sets out the kind of experience and the period of experience which the Commissioner generally considers would enable an applicant to do, or to supervise, the work for which a supervisor certificate is required. The Commissioner assesses all applications in the same category of licence or certificate against the relevant matters in the Instrument.
In addition to the qualification requirements (which it appears that Mr Elias meets having obtained a Certificate IV in Building and Construction (Building) and a Diploma of Building and Construction (Building)), the Instrument provides that an applicant must demonstrate at least two years' relevant industry experience in a wide range of building construction work, where the majority of that experience was obtained within ten years of the date on which the application was made.
The Instrument defines "experience" as experience gained by an applicant as:
1. an employee of; or
2. a holder of a supervisor certificate and as a nominated supervisor for the contractor licence held by; or
3. a holder of an endorsed contractor licence contracted to; or
4. 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;
5. 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.
As the Commissioner acknowledged, the Instrument is not binding on the Tribunal: Whitehouse v Commissioner for Fair Trading [2017] NSWCATOD 108 at [39]; Limberis v Commissioner for Fair Trading [2017] NSWCATOD 128 at [31]. The Instrument is a policy, but not "Government policy" as that term is defined in ss 50 and 64(1) and of the Administrative Decisions Review Act 1997 and is therefore not binding upon the Tribunal.
The Tribunal "may have regard to any other policy applied by the administrator in relation to the matter concerned except to the extent that the policy is contrary to Government policy or to law or the policy produces an unjust decision in the circumstances of the case": see s 64(4) of the ADR Act) Whitehouse at par [39] and Limberis at [31]. The Tribunal must not, however, apply the Instrument inflexibly.
The policy requires an applicant for the licence to have two years' experience in a wide range of building construction work, the majority of which was obtained in the 10 years preceding the application for the licence. Mr Elias has not argued that this aspect of the policy should be departed from by the Tribunal and I see no reason to do so. As I stated in Limberis, the requirement that an applicant for the licence should have current relevant experience is a sensible one.
[3]
Relevant experience claimed by Mr Elias
In order to meet the experience requirement for the grant of the licence, Mr Elias relies upon his experience on five sites:
1. construction of four townhouses at Woy Woy;
2. renovations to a home and granny flat in East Gosford;
3. building a granny flat at his daughter's property in Umina;
4. conversion of two shops to one large commercial premises in Umina Beach; and
5. renovation of a unit in Wiley Park.
He also refers to his experience in his current role with CPK Building Group.
[4]
Townhouses at Woy Woy
This construction was undertaken by Mr Elias's company, AKL Junior Pty Ltd. Alex Darabi provided a referee report dated 22 January 2020 submitted by Mr Elias with his application for the licence. In that he states that Mr Elias worked for AKL Junior Pty Ltd on the Woy Woy site for 24 months from 2017 to 2019 under his supervision and undertook site supervising, carpentry works, fencing, decking, stairs and formwork.
The Commissioner states that records show Mr Darabi was the nominated supervisor for AKL Junior Pty Ltd from 8 November 2018. The notice of cancellation of the company's licence for failure to have a nominated supervisor states that the company had been without a nominated supervisor since November 2019.
In another referee report dated 24 March 2020 Mr Darabi said that Mr Elias commenced work on this site under another supervisor. He states that Mr Elias worked under his supervision from 2 November 2018 to 31 August 2018. He also stated that Mr Elias had been working with him for approximately two years prior to this job at Woy Woy gaining experience within the building sector.
At the hearing the Commissioner cast doubt on the referee reports from Mr Darabi, alleging that the signatures on the January and March reports were different. The Commissioner did not summons Mr Darabi to give evidence so that he could be questioned on this point or any other matter.
A progress report following an inspection on 3 November 2018 by William Dagger, the principal certifier for this construction, states that Alex Darabi came onto the site on 3 November 2018 as supervisor to complete the project as difficulties had arisen with the former supervisor, Rohan Coleman. In a letter dated 17 March 2020, Mr Dagger stated that the person he most dealt with on the project was Mr Elias who organised and managed the project. Mr Dagger states that a licenced supervisor employed by the building company left on 3 November 2018 and Mr Elias "a competent licenced builder in his own right, then completed construction on the project to the Final Occupation Certificate". The Commissioner states that this statement by Mr Dagger indicates that Mr Darabi did not in fact supervise Mr Elias and that Mr Dagger was under the impression that Mr Elias was a licenced builder.
Again, the Commissioner did not summons Mr Dagger to appear or in any way seek to clarify his statements with him. As Mr Elias pointed out at the hearing, in the contemporaneous progress report, Mr Dagger was very clear that Mr Coleman was the original supervisor and that Mr Darabi took over in November 2018 when Mr Coleman left.
Mr Elias has not provided any referee statement from Mr Coleman who he states was the nominated supervisor for the company from the start of this project in 2017 until he left in 2018. He has provided letters from three people about the work on this site. AKL Elias states that he worked as a carpenter on the site for 18 months and that Mr Elias was the project manager. Matthew Russell also states he worked on the site for eight weeks and speaks highly of Mr Elias's skills. Another letter is from Blake Straker of BAS Plumbing who states that Mr Elias was the site supervisor and also speaks highly of his skills.
The 24 March 2020 referee report also contains a statement that Mr Elias was a voluntary worker on this site and did not get paid. Mr Elias said that he did not draw a salary for the work he performed as the company would then have needed to borrow money to pay for material and contractors. Instead, he said that he would take a share of the profits after completion of the project. In an undated letter Mr Elias's accountant states that Mr Elias performed building work on this site from 1 September 2017 to 31 August 2019. The accountant goes on to state that, in order to preserve the cash flow of the company, Mr Elias was not paid a market wage for the work he completed during this period but will draw all amounts owing when the property is sold. The accountant estimates that undrawn wages over this period would be $300,000. There is no evidence of any payment having been made to date in the material before the Tribunal.
[5]
Renovations to home and granny flat at East Gosford
In his January 2020 referee report Mr Darabi states that Mr Elias worked on this site in East Gosford (which appears to have been alterations to an existing dwelling and building a new granny flat) for 24 months from 2017 to 2019. He states that he supervised Mr Elias doing carpentry, fencing, decking, formwork and stairs and acting as site supervisor. Mr Darabi stated that the employer during this period was AKL Junior Pty Ltd. The address in East Gosford also appears to be Mr Darabi's home address.
In his 24 March 2020 reference Mr Darabi states that he supervised Mr Elias in a range of building work at these sites. That reference, as set out above, contains a statement by Mr Elias that he worked on the site in a voluntary capacity. It also specifies that Mr Elias worked on the site for various periods totalling some 223 days, commencing 1 November 2017 and finishing 21 February 2020.
The Commissioner points out that Mr Darabi was not the nominated supervisor of AKL Junior Pty Ltd until November 2018 and could therefore not have been Mr Elias's supervisor before that date if AKL Junior Pty Ltd was the employer. The Commissioner also notes that the construction certificate for this project nominates Ausihome Pty Ltd as the builder. According to the Commissioner, Mr Darabi is a director of Ausihome Pty Ltd but the company is not a licenced entity. The Commissioner refers to another record which nominates the builder as Mr Darabi and states that he can find no record of Mr Darabi being the nominated supervisor for Ausihome Pty Ltd. The Commissioner also states that, on Mr Elias's own evidence, he was not an employee of Mr Darabi. However, at the hearing, Mr Elias said that the house was owned by Mr Darabi and he was an employee of Mr Darabi, although he was not paid for the work.
[6]
Granny flat at Umina
Mr Elias states that he built a granny flat for his daughter in 2014 and Mr Darabi supervised the works. He states that he instructed his daughter to obtain an owner-builder permit, engaged a plumber, electrician and bricklayer and completed all other works himself. Fair Trading records show that an owner-builder permit was issued to Rose Elias on 8 January 2014 in relation to construction of the granny flat. In an undated statement Rose Nasr (formerly Elias) states that Mr Elias supervised the job for her from start to finish and received no payment. She does not mention Mr Darabi in her statement nor provide details of the work performed by Mr Elias or the time he spent on the project.
In his reference of 24 March 2020 Mr Darabi states that he supervised Mr Elias from the start of the project on 13 January 2014 to its completion on 10 June 2014 and sets out a variety of work performed by Mr Elias. Mr Elias said that Mr Darabi checked the work before the certifier came on site and did this as a favour to him.
The Commissioner notes Mr Elias's daughter stated that her father supervised the job and made no reference to Mr Darabi which is in is contrast to the statement by Mr Darabi that he supervised Mr Elias doing the work. The Commissioner also states that the work was carried out in 2014 and there is no mention of Mr Elias being employed by Mr Darabi at that time or receiving remuneration for the work performed by him.
[7]
Commercial premises in Umina Beach
In his reference of 24 March 2020 Mr Darabi states that he supervised Mr Elias in a range of work combining two shops into one large commercial premises over four months from 1 July 2014 to 31 October 2014.
The Commissioner states that commercial work falls outside the experience requirements for a contractor licence under the Home Building Act.
[8]
Unit in Wiley Park
Mr Darabi refers to this site in his reference of 24 March 2020 and states that it involved renovation of an existing unit commencing 26 February 2020. He states that Mr Elias supervised the unit renovation and lists the work involved.
The Commissioner states that no information is provided about the identity of the builder or whether Mr Elias was remunerated for the work. He notes that, if the builder was AKL Junior Pty Ltd, Mr Darabi left the company and the company's licence was cancelled for failure to have a nominated supervisor in June 2020.
Mr Elias said at the hearing that he was paid for the work, but has provided no other details.
[9]
CPK Building Group
Mr Elias began work as a project manager with CPK Building Group on 1 June 2020. He has a provided referee statement from Charbel Kzaizan in relation to two building sites on which he states he supervised Mr Elias. The first is in Booker Bay and Mr Kzaizan states that Mr Elias worked on the site for 100 days and performed supervision of internal/external works, carpentry, flooring, gyprock and finishing of works. The second is in Umina Beach and Mr Kzaizan stated that Mr Elias supervised trades on site, works including framing, bricklaying, concrete/waterproofing. It is clear from payslips that Mr Elias is an employee of CPK Building Group.
[10]
Consideration
As stated above, I see no reason to depart from the policy set out in the Instrument that, in order to be granted the licence, Mr Elias is required to have two years' experience in a wide range of building construction work, the majority of which was obtained in the last 10 years. At the hearing the Commissioner accepted on face value that Mr Elias's current experience with CPK Building Group would count towards the experience requirements for the grant of a licence. I also accept that this experience is relevant. Mr Elias commenced with that company on 1 June 2020 and therefore relies on his previous experience as set out above to meet the two years' qualification requirement.
I agree with the Commissioner that Mr Elias's experience working on commercial premises in Umina Beach in 2014 is not experience in residential building work which can be considered as part of the experience requirements under the Home Building Act. I also agree that Mr Elias has provided insufficient information about the work undertaken at Wiley Park in early 2020, including the duration of the work, the identity of the builder and the supervisory arrangements said to involve Mr Darabi, for that work to count towards the qualification requirements.
Mr Elias seeks to rely upon the construction of a granny flat at Umina for his daughter as part of that experience. He also seeks to rely on his role on the construction of the townhouses at Woy Woy and the renovation to a house and construction of a granny flat at East Gosford.
In relation to the granny flat constructed for his daughter at Umina, the information about any arrangement involving Mr Darabi supervising Mr Elias's work is very unclear. As noted above, Mr Elias's daughter makes no reference to Mr Darabi and Mr Darabi does not refer to this site in his first reference. In his second reference Mr Darabi states he supervised Mr Elias doing a range of work. However, Mr Elias's own evidence is that Mr Darabi checked some work before the certifier attended the site as a favour to him. This would not indicate that he performed a supervisory role.
In the absence of any further information, I cannot be satisfied that Mr Elias was appropriately supervised in the construction of the granny flat.
Mr Elias's company AKL Junior Pty Ltd was the builder for the townhouses at Woy Woy. The evidence is that there were two nominated supervisors for the company during the relevant period. The first was Mr Coleman who had left the company by November 2018. Mr Elias has not provided a reference or any other information from Mr Coleman about the work undertaken by Mr Elias on the site during his time as nominated supervisor for the company. I accept that it appears they parted on less than amicable terms and it might therefore have been difficult for Mr Elias to approach Mr Coleman for a reference.
There will be circumstances where the supervisor is no longer, for whatever reason, able to provide a reference. In those circumstances, information may be available from others who worked on the site who can attest to the supervisory arrangements and the work performed. Mr Elias provided letters from three people who state they worked on the Woy Woy site. None, however, provide details about the work performed by Mr Elias during the period Mr Coleman was the supervisor or how often Mr Coleman was on site to supervise the work. In the absence of more detailed information from Mr Coleman or others, I cannot be satisfied that Mr Elias meets the qualification requirements for this period.
The Commissioner raised doubts about the authenticity of references by Mr Darabi but, as noted above, has not provided anything to substantiate tjis allegation. I accept that Mr Elias was supervised by Mr Darabi after he took over as the company's nominated supervisor at the beginning of November 2018. According to Mr Darabi, he supervised Mr Elias for a 10-month period from November 2018 to August 2019 on this construction and he sets out the nature of the work performed by Mr Elias.
In relation to the house and granny flat at East Gosford, the evidence is contradictory. On the one hand, Mr Darabi states that during this period the employer was AKL Junior Pty Ltd but, as the Commissioner notes, Mr Darabi was not the nominated supervisor of that company during the periods it is claimed Mr Elias worked on the site under his supervision. There is also information provided by the Commissioner that the builder was in fact Ausihome Pty Ltd, but that company is not a licenced entity. Mr Elias states that he was employed by Mr Darabi and the Commissioner refers to other evidence that Mr Darabi was in fact the builder, although notes that Mr Darabi is not a nominated supervisor for Ausihome Pty Ltd. Mr Elias has not provided any evidence to support his statement that he was an employee of Mr Darabi and states he was not remunerated for this work.
On the basis of the evidence before me, I am not able to make any finding as to the supervisory arrangements which were in place for Mr Elias on this project. I therefore cannot be satisfied that Mr Elias meets the qualification requirements set out in the Instrument for work on this site.
The only work which can therefore be taken into account in assessing whether Mr Elias meets the qualification requirements is the 10 months under Mr Darabi's supervision on the Woy Woy project and his more recent experience with CPK Building Group. That does not amount to two years' experience in total.
The Commissioner made much at the hearing of the fact that Mr Elias was not paid for most of the work he asked to be taken into account when assessing his qualifications. Mr Elias states that he worked on a voluntary basis on many of the projects, although, in relation to the townhouses in Woy Woy he states there was to be a profit sharing arrangement on completion. In addition to the supervision requirements, the Instrument states that an applicant for a licence must have "received remuneration in accordance with law" for the work carried out.
As set out above, in my view, the requirement that an applicant for a licence should have current relevant experience is a sensible one. The requirement that the person be paid for the doing of the work which counts towards that experience is also, in my opinion, desirable. To be remunerated for the work carries with it an implication that the work is of value and is of a certain standard such that it can be said that the person has demonstrated the skills and capabilities required for the grant of a licence. In saying that, I don't wish to imply that Mr Elias has performed sub-standard work.
In any event, given my finding that Mr Elias does not meet the supervision component of the qualification requirements, I do not need to consider whether strict compliance with the remuneration requirement would result in an unjust decision in this case.
I have also considered whether (other than in relation to the remuneration issue) a strict application of the policy would produce an unjust result in the circumstances of this case. I am not satisfied that it would. Mr Elias had the opportunity to provide better evidence to support his application but did not do so.
The decision under review must therefore be affirmed.
[11]
Orders
1. The decision under review is affirmed.
[12]
I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.
Registrar
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: 30 April 2021