Goel v The Secretary, Department of Customer Service [2025] NSWCATOD 101;

1. On or about 2014, the Applicant purchased a property in New South Wales which, at that time was a vacant lot (the Property).

The Applicant is granted consent for a dual occupancy

1. On or about 22 September 2016, the Applicant was granted development consent from the local Council for a dual occupancy Class 1a in respect of the Property (the Development) and on 7 February 2017 the Applicant was granted a construction certificate for the construction of the dual occupancy Development.
2. On about 28 March 2017 the Applicant was granted development consent for the strata subdivision of the Property and proposed Development. Pacific trading as Hitek was the company identified as the builder of the duplex.

Applicant applies for a permit for an "owner-builder permit" for a "single dwelling" in which he will live

1. On 23 September 2020, the Applicant applied online to Fair Trading for an owner builder permit for the construction of the Development. The field "choose type of construction" provided for single dwelling, secondary dwelling and dual occupancy. The Applicant chose "single dwelling".
2. According to the Applicant, at the time of the application, his intention was to build a single dwelling, which he would reside in, and complete the second dwelling at a later stage.
3. However, the Applicant never resided in either property and subsequently constructed both duplexes simultaneously.

Failure to include the conspicuous note in the contracts for sale

1. On 30 September 2020 the Department of Fair Trading issued an owner builder permit to the Applicant for the Property. It was a condition of the Permit that:

(1) the content of the owner builder permit application was true and correct;

(2) any sale within 7.5 years of the construction "must include a conspicuous note (A consumer warning) on any contract of sale stating that an owner-builder permit was issued in relation to the land (specifying the date on which it was issued) ..."

1. On about 21 November 2020, earthworks for the construction of the Development were scheduled to commence and a notice of commencement was provided to the council. According to the Applicant site preparation began in December 2020. Framing commenced in about April or May 2021. The Development was at lock-up stage by June or July 2021 according to the Respondent or August according to the Applicant.
2. In respect of these works, both duplexes were constructed simultaneously because, according to the Applicant, his intentions changed because of financial restraints caused by COVID as from the time of the permit application and the time of commencement.
3. In June or July 2021, the Applicant advertised both residences for sale. Around this time, according to the Applicant, the Developed was not completed with the roofing being undertaken.
4. On about 30 August 2021 the Applicant entered into a contract for the sale of one of the residences (identified as 40A) to Mr M and on 10 December 2021, title was transferred.
5. On about 1 October 2021, the Applicant executed a contract for the sale of the other residence (identified as 40B) to Ms D and on 17 December 2021, title was transferred.
6. Neither of the contracts of sale of the residences bore the "conspicuous note" required as a condition of the permit.

1. On about 6 September 2021 the Applicant signed a certificate and warranty on the letterhead of Auss Water Proofing and Tiling Group Pty Ltd citing Pacific's licence number and his own sole trader ABN. The Applicant then provided this certificate to Lithgow City Council as proof that the waterproofing for the Development had been certified and in support of an occupation certificate, which was issued in reliance on that certificate.
2. On 8 November 2021, the Council issued an occupation certificate for the Development.
3. In November or December 2021, construction on the Development was completed. The cost of the Development was $900,000 ($450,000 for each duplex).

1. Ms D and Ms M subsequently made complaints to this Tribunal pertaining to construction defects at the Development claiming such defects were in breach of section 18B(1) of the Act. That is, that the work would be done by the Applicant with due care and skill and in accordance with the plans and specifications set out in the contract.
2. The Applicant was subject to two Tribunal money orders as a result of those complaints.
3. The Tribunal required the Applicant to make payment to Ms D and Ms M to fix the defects. As par of that decision, Senior Member Burton noted that the Applicant had failed to take out home warranty insurance
4. In June 2023, the Applicant was ordered to pay $17,905 and in October 2023, the Applicant was ordered to pay $95,992.
5. The Applicant did not comply with the orders by the due date and his contractor licence was suspended on 12 February 2024 but subsequently lifted in April 2024 when the orders were complied with.
6. The Internal Review decision also states:

... a review of [the Applicant's] compliance history identified he is linked to 31 consumer complaints pertaining to defective retail goods (26), defective construction work (2), supply of a damaged kit home (1), not returning a refundable deposit for purchase of land (1) and reported use of State government logos, including NSW Fair Trading in Gumtree advertisements. Additionally, it was identified that [the Applicant] was issued an undertaking by ACCC for selling non-compliant bunk beds

1. The Respondent clarified that this allegation of compliance history was not relied upon in these proceedings and I give it no weight.

1. The Act offers protection to consumers in New South Wales by regulating residential building work and specialist work. The Act, inter alia, provides for the licensing and regulation of those engaged in residential building work. It prohibits a person from contracting to do any residential building work or specialist work without holding a contractor licence. It implies non-excludable warranties as to the quality of residential building work and services undertaken in New South Wales and provides a mechanism for the resolution of disputes relating to residential building work. It establishes a mandatory home warranty insurance scheme to provide protection to those who enter contracts for residential building work, and who own homes constructed or renovated under those contracts. By issuing contractor licences and certificates the Director General represents to members of the public that the contractor meets the fitness, competency and solvency requirements of the Act and is authorised to do the work specified in his or her licence: s.21(1)(a).
2. Part 3 of the Act deals with licences and certificates.
3. Section 19(1) empowers the Respondent, to grant contractor licences for purposes of the Act. Section 24(1) provides that the Respondent may grant certificates, including supervisor certificates, for the purposes of the Act.
4. Section 20 of the Act makes it mandatory for the Respondent to refuse an application for a contractor licence according to the following provisions:

20 Issue of contractor licences

(1) The Secretary must refuse an application for a contractor licence if -

(a) the Secretary is not satisfied that the applicant is a fit and proper person to hold a contractor licence, or

(a1) the Secretary is not satisfied as to the matters of which the Secretary is required to be satisfied by sections 33B and 33C, or

(b) the applicant is a mentally incapacitated person, or

(c) the applicant is disqualified by this Act or the regulations from holding a contractor licence, or

...

(1A) Without limiting subsection (1)(a), in determining whether an applicant is a fit and proper person to hold a licence the Secretary is to consider whether the applicant is of good repute, having regard to character, honesty and integrity

1. Section 25(1) deals with the issue of certificates. Relevantly, it provides:

(1) The Director-General must reject an application for a supervisor or tradesperson certificate if:

(a) the Director-General is not satisfied that the applicant is a fit and proper person to hold such a certificate, or

(b) the applicant is a mentally incapacitated person, or

(c) the applicant is disqualified by this Act or the regulations from holding such a certificate.

1. According to section 9 of the Administrative Decisions Review Act 1997 (NSW) ("ADR Act") and sections 28 and 30 of the Civil and Administrative Tribunal Act 2013 (NSW) ("CAT Act"), the Tribunal has jurisdiction over a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review.
2. Part 4A of the Act deals with administrative reviews by the Tribunal. Section 83A states that an applicant for the issue, alteration, renewal or restoration of an authority aggrieved by any decision of the Secretary relating to the application may apply to the Tribunal for an administrative review under the ADR Act of the decision. Section 83B thus gives this Tribunal jurisdiction.
3. In determining an application for administrative review, section 63 of the ADR Act provides that this Tribunal is to decide what is "the correct and preferable decision," having regard to "any relevant factual material, and any applicable written or unwritten law". The Tribunal is not restricted to consideration of the material that was before the original decision-maker but may have regard to any relevant material before it at the time of the review (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 129).
4. In determining an application for administrative review of a decision, the Tribunal may decide to affirm the decision, to vary the decision, to set aside the decision, decide in substitution, or to remit the matter for reconsideration by the administrator.
5. Under section 38(2) of the CAT Act, the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
6. The central issue to be resolved is whether the Applicant is a fit and proper person as required by the Act. The circumstances relied upon by the Respondent to answer the question in the negative are allegations related to:

(1) The provision of information to the Respondent in his permit application that the Development would be a single dwelling in which the Applicant would reside in circumstances where he constructed a dual occupancy which he sold prior to completion and in which he never resided;

(2) The provision to Council of the waterproofing certificate;

(3) The failure to include the "conspicuous note" in the contracts for sale which was a condition of the permit; and/or

(4) The breach of statutory warranties in respect of Ms D and Ms M because of defective work.

1. In the circumstances of those allegations, the relevant questions:

(1) Has the Applicant acted dishonestly?

(2) Has the Applicant's shown an unwillingness or inability to comply with his statutory obligations and/or a lack of insight into the significant of non-compliance?

(3) Has the Applicant shown a lack of integrity in disregarding the rights of consumers?

1. If the answer to paragraph 43(1), 43(2) and/or 43(3) is "yes", does that establish that the Applicant is not a fit and proper person for the purposes of sections 20(1)(a) and/or 25(1)(a) of the Act?

(1) The licences are integral to his business and any adverse decision significantly impacts his livelihood and operations. The cancellation has also had an emotional toll and the Applicant has complied with the requests made of him in the context of the investigations into these issues.

(2) The Applicant is highly experience, has not adverse criminal history or credit record and regularly undertakes continued professional development.

(3) The Applicant has always adhered to the requirements of the Act. Any suggestion otherwise is a misunderstanding of his intent and actions with him having no ulterior motive to bypass legal requirements. In this respect, the Applicant contended that the applications to renew the contractor licence and supervisor certificate contained correct information regarding the proceedings initiated by Ms D and Ms M which was provided in the Additional Details form.

(4) With respect to the inconsistencies between the Applicant applying for a permit for an "owner-builder permit" for a "single dwelling" in which he will live despite having earlier obtained consent for a dual occupancy, despite never living in either dwelling and despite advertising the properties for sale prior to completion - the Applicant contended:

(a) there was no description of dual occupancy in the owner-builder permit with the only options being multi dwelling or single dwelling and the property was not part of a multi-dwelling strata complex. While he accepted that the equivalent current forms expressly stated that a permit for a dual occupancy cannot be made online and stated that "special circumstances" were required in support of a dual occupancy owner builder permit, he indicated he could not confirm or deny whether the 2020 forms included an explicit option or explanation. However, he conceded that, irrespective of the form, he was aware in 2020 that owner-builder permits were generally not issued for dual occupancy projects except under special circumstances.

(b) at the time of the application for the permit, it was his intention to construct a single dwelling due and his intention to relocate to the Property and to live in the first dwelling upon its completion and then proceed with the construction of the second dwelling. The second dwelling was to provide accommodation for his parents who lived overseas and would be built subsequently.

(c) there is nothing within the approval that restricted him from constructing a single dwelling as a first step or required both dwellings to be built simultaneously.

(d) however, due to "financial constraints", caused by the COVID-19 pandemic, he proceeded with the construction of both dwellings under an owner-builder permit at the same time and subsequently advertised them prior to completion. According to the Applicant, the pandemic caused the unavailability of trades, delays in the supply of materials and frequent lockdowns and he had no option but to construct both dwellings simultaneously as "further planning for the future was rendered impossible due to these exceptional conditions". In the Applicant's submissions in reply he indicated it was to repay borrowed funds and settle outstanding payments. During cross-examination, he indicated that to come up with the funds to cover the increased costs of building them at the same time, he had to borrower a lot of money from parents and friends.

(e) The Applicant's evidence was that he accepted that he was acting outside of his lawful permission but says he was not aware that he was at the time and it was not intentional.

(f) the fact that declaring the Development as an "owner-builder" development allowed him to circumvent Home Building Compensation Fund insurance requirements was a consequence of that declaration but was not the motivation. While the Applicant accepted that insurance is to protect purchasers and necessary under the Act but it was up to the purchasers to make their own decisions or if insurance was an advantage, it was only a slight advantage because the Applicant was able to pay for any claim.

(g) the Respondent had the opportunity of reviewing the permit application and could have declined it. In this respect, the Respondent repeated in cross-examination that the dual occupancy determination was attached and so it was open to the Respondent to make its own enquiries. In response to a question asking whether it was the Applicant's view that the onus was on the Respondent to determine the truth of disclosures and not on the Applicant to make truthful disclosure, the Applicant responded that the Respondent should have "checks and balances".

(5) In respect of the various money orders issued against him, the Applicant submits that the work was carried out by subcontractors and not him personally and he was not at fault. He indicated that the delay in paying was because of pending appeals.

(6) With respect to the absence of the 'conspicuous note' in the contracts of sale, the Applicant said he had retained a conveyancer and had assumed that the conveyancer would include whatever was required in the contacts for sale.

(7) With respect to the waterproofing certificate, the Applicant acknowledges that his decision and participation in falsifying a certificate in order to obtain an occupation certificate was an "error of judgment". However, the Applicant also submitted that there was no evidence to suggest any ulterior motive, deception or unfair advantage gained.

(8) The Applicant also contended "at no stage have I shown any lack of integrity or disregard for the rights of consumers and members of the public"

(9) The Applicant also describes the Respondent's approach towards him to be a:

.... blatant attempt to tarnish my professional image by constructing a case based on false and frivolous and largely irrelevant grounds.

1. Consistent with its obligations, the Applicant filed s 58 bundles in proceedings that had been earlier initiated but were dismissed. Those bundles were treated as the s 58 bundle for this proceeding.
2. The s 58 bundle was 817 pages long.
3. The Applicant relied upon the following documents in addition to his oral submissions and the section 58 bundles:

(1) Bundle of documents entitled "Submissions ... pursuant to orders dated 18/02/2025" of 132 pages.

(2) Bundle of documents entitled "Reply to Respondent's Submissions" of 57 pages.

1. In addition, to submitting that the Applicant is not a fit and proper person because he exceeded the authority conferred of an owner builder permit in constructing a dual occupancy, failed to comply with the conditions of the permit in not including the conspicuous note, and breached statutory warranties because of the subsequent claims made by Ms M and Ms D, the Respondent also submitted that the Applicant is not a fit and proper person because of dishonesty.
2. With respect to dishonesty, the Respondent contended that the Applicant provided false and misleading information to the Respondent in the permit application process. In this respect, the Respondent submitted that the Tribunal would not accept the Applicant's explanation of his subjective intention as it was inconsistent with the development application, inconsistent with the conditions of the permit, impermissible under the Act and implausible in the circumstances with the factual allegations supporting a change of position being based solely on the Applicant's bare assertions.
3. However, even if the Tribunal accepted that this was the Applicant's subjective intention, the question of honesty must be determined objectively as the obligations under the Act are strict and state of mind should not interfere with liability. In the circumstances, the Tribunal would infer that the Applicant knew or ought to have known that a single dwelling was not the same as a dual occupancy, there was a requirement of special circumstances and the insurance implications and implications for future purchasers.
4. The second basis to claim dishonesty, according to the Respondent was the Applicant's involvement in falsifying the waterproofing certificate in order to obtain the occupation certificate.
5. The Respondent submitted that the Applicant has not demonstrated any appreciations or understanding of his obligations or the effect on the public and specifically consumers.
6. In addition to the Respondent's oral submissions, cross-examination of the Applicant and the section 58 bundles, the Respondent relied upon:

(1) Outline of the Respondent's submissions attaching various documents of 44 pages

1. The Respondent also cross-examined the Applicant.

1. The expression 'fit and proper' was considered in Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28; (1955) 93 CLR 127 and at [156] - [157] the High Court said:

The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances.

1. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said:

The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.

The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.

1. For the reasons that follow, I am not satisfied that the Applicant is a fit and proper person pursuant to sections 20(1)(a) and 25(1)(a) of the Act and I affirm the decision.
2. First, with respect to the waterproofing certificate, there is no dispute that the Applicant caused or was complicit in falsifying a document in pursuit of an occupation certificate. Irrespective of the Applicant's subsequent acknowledgement that this was wrong, he simultaneously claims that, in these proceedings, there is no evidence of deception.
3. Consistent with the Applicant minimising the significance of the falsified certificate; the Applicant, by way of his submissions and evidence oft repeated that he had a strong moral character, a lack of a desire to deceive, the absence of ulterior motives and that there was no evidence that he ever sought an unfair advantage. These allegations were made in support of the Applicant's voluminous submissions that he was honest, fit and proper. With specific regard to the waterproofing certificate, the Applicant submitted:

The certificate in question was arranged only after CPF Constructions Pty Ltd declined to issue it due to a contractual dispute that hindered progress toward the occupation certificate... which subsequently became the subject of NCAT matter ...The certificate in question was signed by me on behalf of another subcontractor, one of my regular partners. There is no evidence to suggest any ulterior motive, deception or unfair advantage gained, nor any instance of individual loss, damage or prejudice arising from the issuance of this certificate, which was necessary to facilitate the occupation certificate. [Emphasis added]

1. The certificate was an act of deception. It was false. It was motivated by the ulterior motive of the Applicant to obtain an occupation certificate and to obtain an advantage unfairly in the absence of a legitimate waterproofing certification. The admissions that the Applicant makes with respect to the waterproofing certificate while maintaining that there is "no evidence" of deception cannot be reconciled. Rather, it shows that the Applicant does not understand or cannot recognise his own deceptive conduct or conversely what is required to act honestly. It also evidences that the Applicant does not understand or appreciate the risks associated with such behaviour in the context of a regime established by the Act which is designed to protect the public.
2. As such, unless the evidence of the Applicant is supported by objective and contemporaneously documentation, I give it little weight.
3. I therefore do not accept the Applicant's allegation that the COVID epidemic caused "financial constraints" that led to a change of position with respect to the Development because such a proposition is entirely unsupported by evidence except for the assertion of the Applicant. To the extent that the Applicant found himself in an adverse financial position requiring a change of position, such a position would be evidenced by documentation, examples including bank statements, tax returns, balance sheets, profit and loss statements, loan agreements and/or statements from lenders or related correspondence. Apart from broad and vague references to the COVID epidemic, the Applicant relies on no documentary evidence to substantiate this claim.
4. Even if there was such evidence (and there is not), the allegations made by the Applicant leading to the alleged change of position is unconvincing and contradictory to the other allegations and facts in this case for the following reasons:

(1) First, the Applicant relies upon a change of position allegedly caused by the COVID epidemic that occurred sometime between the day of the permit application on 23 September 2020 (when, according to him he still intended to construct a single dwelling) and 21 November 2020 when earthworks for the construction of the Development were scheduled. However, the COVID epidemic and its impacts on this State had been experienced from the beginning of 2020 and by the time of the permit application, there had already been implemented vast restrictions, lock-downs and border control measures both in respect of the State and the country. To the extent that the epidemic caused specific financial constraints on the Applicant, no explanation was given as to why those constraints were only experienced in the period following the permit application before construction but not arising at any time prior to the permit application despite the COVID epidemic subsisting for some time.

(2) Secondly, the period when the alleged change of position occurred was a period of only eight weeks. It is difficult to reconcile how such a dramatic change of position occurred and was able to be facilitated to allow for a scheduled earthworks by November 2020.

(3) Thirdly, the allegation of alleged financial constraints and difficulties in finding trades and materials sits uneasily with the expansion of the development to include two duplexes because that decision increased costs, increase trades and increase materials.

(4) Fourthly, the allegation of financial constraints is inconsistent with the Applicant's evidence during cross-examination. In answer to questions related to the fact that declaring the Development as an "owner-builder" development allowed him to circumvent Home Building Compensation Fund insurance requirements, and asking whether the Applicant acknowledged that the absence of insurance was disadvantageous to a purchaser, the Applicant indicated that it was only a slight advantage because the Applicant was able to pay for any claim. This evidence is inconsistent with the assertion that at the same time, the Applicant was experiencing financial constraints and challenges.

(5) Fifthly, the allegation that the initial plan of the Applicant was to build two duplexes - one for himself and his family and one for his parents to live-in is inconsistent with the fact that the Applicant's parents did not have Australian citizenship or any right of residency in Australia either at the time of the permit application, or years later, as at May 2025 at the time of the hearing.

(6) Sixthly, the Development was advertised for sale as soon as it reached lock-up.

(7) Seventhly, the Applicant was a licensed and experienced builder and qualified civil engineer and knew at the time of lodging the permit application that a single dwelling was not the same as a dual dwelling; there was a requirement of special circumstances for the construction of a dual occupancy under an owner builder permit which he admitted knowing; and the insurance implications for himself and future purchasers.

1. Consistent with the reasoning above, I am not satisfied of the explanations given by the Applicant as to the consistent inconsistencies in the declarations made by him in the context of this Development. I accept, as submitted by the Respondent, that the inconsistencies are evidence that the Applicant provided false and misleading information to the Respondent in the permit application and false and misleading information to the council in the waterproofing certificate. Each are instances of dishonesty and that the Applicant is not a fit and proper person for the purposes of the Act.
2. With respect to the Respondent's submission that the Applicant exceeded the authority of the permit, there can be no serious dispute with respect to this claim. The Applicant used the permit which authorised him to construct a single dwelling to construct a dual occupancy.
3. Lastly, I further find that the evidence satisfies me of the Applicant's remorseless or lack of responsibility in respect of his conduct because of his allocation of blame to others. In this respect:

(1) Despite identifying that declaring the Development as an "owner-builder" development allowed him to circumvent Home Building Compensation Fund insurance requirements, the Applicants evidence was that the decision to purchase by consumers was "up to the purchasers".

(2) With respect to issuing the Applicant with the permit, to the extent this was incorrect, according to the Applicant it was, to some extent, the fault of the Respondent because there should have been "checks and balances" in place.

(3) To the extent that the "conspicuous note" was not included, this was, according to the Applicant, the fault of the conveyancer.

1. Lastly, with respect to the submissions of the Respondent regarding the breach of statutory warranties, I am not satisfied based upon the submissions and material that I have been taken, that I can make such findings. While these issues have been the subject of other proceedings in this Tribunal, neither party dealt with whether the work associated with the Development was done with due care and skill in these proceedings. In the absence of any submission that I am bound by those findings of fact, or the attempt to establish those findings, it would be inappropriate to make such findings.
2. In answer to the relevant questions as stated above, and based on my consideration and findings, I find:

(1) The Applicant has acted dishonestly.

(2) The Applicant has shown an unwillingness or inability to comply with his statutory obligations and/or a lack of insight into the significant of non-compliance.

(3) The Applicant has shown a lack of integrity in disregarding the rights of consumers.

1. This establishes that the Applicant is not a fit and proper person for the purposes of sections 20(1)(a) and/or 25(1)(a) of the Act.
2. Accordingly, I affirm the decision the subject of the review because I am not satisfied that the Applicant is a fit and proper person pursuant to sections 20(1)(a) and 25(1)(a) of the Act.

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.