Goodman v Commissioner for Fair Trading

Outline of the facts

1. The following findings of fact were made by the Tribunal and are not in dispute on this Appeal.
2. The appellant was the sole director and secretary of Bronxx Construction Management Pty Ltd (BCM) which had been registered in August 2012. BCM was a construction management company.
3. The appellant was also the sole director and shareholder of the ultimate controlling entity of BCM, Bronxx Holdings Pty Ltd and Goodman Holdings Pty Ltd.
4. On 12 November 2012 BCM was issued with a Contractor Licence and the appellant was nominated as the supervisor for BCM.
5. On 10 July 2019, the appellant caused Bronxx Pty Ltd (Bronxx) to be incorporated and it was issued a contractor licence on 10 September 2019.
6. In October 2019 BCM ceased trading and on 27 November 2019 the appellant surrendered BCM's licence.
7. On 1 April 2021 the name of BCM was changed to ACN 159308442 Pty Ltd.
8. About two years after BCM stopped undertaking work, the appellant received legal and accounting advice to apply for a winding up of BCM. He said he then engaged a liquidator as he did not want to trade while insolvent. On 3 May 2021, BCM, by way of special resolution under s491(1) of the Corporations Act 2001 (Cth), appointed a liquidator for the purpose of a creditors voluntary winding up of BCM and it was placed into external administration.
9. At the time of the hearing before the Tribunal the Liquidator had prepared an Initial Report dated 2 August 2021 (the 2021 Report).

The Legislation

1. The Act regulates the issue, suspension and cancellation of various licences in relation to residential building work.
2. The parties agree that the following provisions of the Act were before the Tribunal for determination:

Placement of BCM into external administration

1. The Act provides that the Commissioner must refuse the appellant's application for a Qualified Supervisor Certificate as the appellant was a director of BCM, which had been placed into external administration [s33B], unless the Commissioner was satisfied that the appellant had taken all reasonable steps to avoid that occurring [33D(2)].
2. The appellant said he had taken all reasonable steps to avoid the placement of BCM into external administration.
3. In Poytress v Director General, NSW Fair Trading [2015] NSWCATOD 100 the Tribunal held: Did Mr Poytress take all reasonable steps to avoid the liquidation of Site Construction? 39 In examining the question of whether a licence holder took 'reasonable steps' to avoid a bankruptcy or insolvency has been considered in a number of decisions of this Tribunal and the former Administrative Decisions Tribunal. 40 In Clarke v Commissioner of Fair Trading, Office of Fair Trading [2004] NSWADT 273 the Tribunal's President referred to a number of earlier decisions under comparable provisions in the Property, Stock and Business Agents 2002 and concluded at paragraphs [9] - [10]: 9 The Tribunal has already dealt with three applications for review arising under the new provisions: McDonald v Commissioner for Fair Trading [2004] NSWADT 124, Smith v Commissioner for Fair Trading [2004] NSWADT 182 and Davidson v Commissioner for Fair Trading [2004] NSWADT 200. 10 It has expressed the following views as to the approach to be taken in examining the question of whether the licence holder took 'reasonable steps' to avoid the bankruptcy or insolvency: (i) A general inquiry into the wisdom or otherwise of the original financial dealings that ultimately ended in bankruptcy or insolvency is not contemplated by the Act. The point at which the inquiry commences is when the applicant was 'faced with the possibility' of bankruptcy or insolvency (Davidson at [20]) or was 'aware' or 'should have been aware' (McDonald at [21]) of that possibility. The focus is the steps taken to avoid the relevant event (see Smith at [17]) - in cases of the present kind, administration, and later liquidation. (ii) Subject to (i), in assessing reasonableness the Tribunal must examine all the relevant facts and circumstances. (McDonald at [25]), (iii) The steps taken by the applicant must be objectively reasonable in the sense that they would be those taken by a 'reasonable person endowed with the knowledge and experience of the [applicant]'. (McDonald at [26-27]) 11 To these should probably be added a fourth, though it is obvious enough from the provision: (iv) The person under notice has the task of satisfying the Commissioner that he or she took all reasonable steps to avoid the insolvency.
4. Thus, before examining the question of whether the appellant had taken reasonable steps to avoid an insolvency, the Tribunal was required to decide the point at which the appellant was faced with the possibility of insolvency or was aware or should have been aware of that possibility. The Tribunal found this occurred in 2019.
5. Then the Tribunal was required to decide whether the appellant had taken reasonable steps to avoid the insolvency. The Tribunal found that he had not taken those steps.
6. These findings are the subject of the first four Grounds of Appeal.

Fit and proper person

1. The Tribunal also had to consider whether the appellant was a fit and proper person to hold the certificate [s25(1)(a)]. This included a consideration of whether the appellant was of good repute, having regard to character, honesty and integrity [s25(1A)]. The Tribunal found he was not a fit and proper person.
2. This finding is the subject of the fifth Ground of the Appeal.

Ability

1. The third issue which the Tribunal was required to decide was whether the appellant was capable of doing or supervising work for which the Certificate was required [s33D(1)(c)].
2. The Tribunal was satisfied that the appellant was capable of doing or supervising that work and there is no appeal from this aspect of the Tribunal decision.

Our role

1. An appeal to the Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again. (Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]). To succeed in an appeal, the appellant must demonstrate either an error on a question of law, which may be argued as of right; or that leave to appeal should be granted to bring the appeal. (Civil and Administrative Tribunal Act 2013 (NSW) s 80(2))(the NCAT Act).
2. The principles governing an application for leave to appeal under the NCAT Act are well-established. They are summarised in Department of Family and Community Services v Smith [2017] NSWCA 206, where the Court said at [28] (citations omitted): Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong.

New evidence

1. The 2021 Report was in evidence before the Tribunal.
2. At the commencement of the hearing the respondent sought leave to rely on the Final Report of the Liquidator dated 17 February 2023 ("the 2023 Report"). The appellant objected to leave being granted.
3. New evidence is not usually allowed in an appeal (Hans v Building Professionals Board [2008] NSWADT 285).
4. A party seeking to adduce fresh evidence in an appeal may only do so with the leave of the Appeal Panel.
5. In Ros v Commissioner of Police [2020] NSWCATAP 70, the Appeal Panel set out the considerations to be applied in respect of allowing new evidence, when the appeal is not conducted as a new hearing, at [33] (citations omitted): Generally speaking, the further evidence sought to be admitted would have to relate to the Tribunal's decision at first instance and have been evidence which was relevant at the time to that decision. Whether it is likely the further evidence would have produced a different result at the Tribunal is relevant. Any potential prejudice to the other party upon the receipt of further evidence is also relevant. Whether the further evidence would allow the Appeal Panel to consider whether, with the benefit of hindsight, it has been demonstrated that serious injustice has resulted or will, in fact, result from the exercise of the Tribunal's discretion, may also be relevant.
6. ​​​​The appellant conceded that the 2023 Report was not available at the time of the Tribunal hearing and accepted that it was relevant. It was not suggested that there was any prejudice to the appellant if leave were to be granted.
7. On 11 September 2023 we gave leave to the respondent to rely on the 2023 Report. We considered that it was significant new evidence because, in his written submissions in this Appeal, the appellant asked us to find that the Tribunal should not have relied on the 2021 Report because it was incomplete. The 2023 Report finalises the issues considered in the 2021 Report.

The first Ground of Appeal

1. The first Ground of Appeal states: "The tribunal erred in law by concluding at [73] that the applicant should have been aware of the possibility of BCM's insolvency from 2019 as it was in early 2019 when the application was made in the Supreme Court of New South Wales and two applications lodged in NCAT in 2019 regarding alleged defective building work. The failure of the tribunal to provide any analysis of why the applicant should have been aware of the possibility constituted both a failure to give reasons and a failure to take into account relevant considerations. The tribunal should have found that the possibility of BCM's insolvency would not have become apparent until after any sums prospectively owed had become due and payable in accordance with s95a of the Corporations Act. The tribunal also misapplied the authority of Clarke v Commissioner of fair trading, office of fair trading (2004] NSWADT 27, by not examining all the relevant facts, giving rise to an error of law."
2. Paras 72 and 73 of the decision say: 72. The question for the Tribunal is to determine whether based on the material before it, Mr Goodman took 'all reasonable steps' to avoid the winding up or appointment of an administrator' of BCM on 3 May 2021. The assessment is made on an objective basis: Poytress [39]-[41]; Clarke v Commissioner of Fair Trading, Office of Fair Trading [2004] NSWADT 273 [9]-[10]. 73. The inquiry commences from when BCM was or should have been aware of the possibility of insolvency. I consider that Mr Goodman should have been aware of the possibility of BCM's insolvency from 2019 as it was in early 2019 when the application was made in the Supreme Court of New South Wales and 2 applications lodged in NCAT in 2019 regarding alleged defective building work.
3. The appellant contends: 1. it does not follow, as a matter of law, that because litigation had been commenced, a party would necessarily be apprised of information that would allow them to conclude that insolvency was a possibility. 2. The definition of insolvency of a company in s95a of the Corporations Act, refers to a person being solvent if, and only if, the person is able to pay all the person's debts, as and when they became due and payable and not unliquidated claims for damages. The appellant says the fact that parties had commenced litigation is not a "debt". 3. Even when considering "prospective insolvency", the test is whether there is a present ability to pay all debts as and when they become due and payable; the words "as and when they become due" meaning that the inquiry may also look to see what debts will fall due in the future [Bank of Australia v Hall (1907) 4 CLR 1514 at 1528]. 4. The inquiry is not to assess whether the company can meet future liabilities that may arise, or its future trading prospects [ASIC v Radisson Maine Property Group (Aust) Pty Ltd (2004) 51 ACSR 420 at (430)], the inquiry is looking at existing liabilities that will fall due in the future. 5. Even if the Tribunal was permitted to take into consideration "claims" rather than debts, some analysis of the veracity of those claims would have to have been undertaken. This was not done by the Tribunal.
4. The respondent points out that it is misleading to look at para 73 in isolation. The following paragraphs in the decision show that the Tribunal also took into account the following matters which occurred in 2019: 1. The appellant said that he had decided that BCM would stop trading and on 27 November 2019 surrendered BCM's licence. After that date, BCM could not perform any construction management or building work. This was the beginning of the end for BCM as its income then diminished rapidly and its debts continued to accrue (para 74 of the Tribunal decision). 2. The appellant had decided to surrender BCM's licence so that Bronxx performed building work instead of BCM (para 75 of the Tribunal decision). 3. BCM had not paid income tax and payroll tax from 2015 and by 2019 these debts were substantial (para 76 of the Tribunal decision).
5. The respondent also says that the test to determine the time at which the appellant should have become aware that BCM was 'faced with the possibility' of bankruptcy or insolvency was when he was 'aware' or 'should have been aware' of that possibility as set out in Poytress supra.
6. In reply, the appellant says that, because of the structure of the decision, any part of the decision after para 73 cannot support the finding in para 73.

Consideration

1. As submitted by the respondent the relevant test to determine the time at which when the appellant should have become aware that BCM was 'faced with the possibility' of bankruptcy or insolvency was when he was 'aware' or 'should have been aware' of that possibility. As conceded by the appellant, there is no legal authority confining this determination to only looking at the debts of the company. We decline to do so.
2. We also decline to confine the Tribunal's finding on this issue to the statement made in para 73 of the decision. The decision must be read as a whole.
3. We are satisfied that it was open to the Tribunal to find that the appellant should have been aware of the possibility of BCM's insolvency from 2019 given the matters set out in paras 13 and 73 - 76 of the decision.
4. No error is disclosed. Ground 1 is dismissed.

The second Ground of Appeal

1. The second Ground of Appeal says: The tribunal erred in law by taking into consideration that BCM had unpaid taxes as a reason to find that the appellant did not take all reasonable steps to avoid BCM becoming insolvent without taking into account the appellants statement that he was unaware that the company had significant tax liabilities. It was incumbent on the tribunal to resolve competing evidence directed to a relevant fact in issue. The tribunal should have found that the appellant was unaware of the tax debts and as such they cannot be relied upon as a reason to find he could not rely upon section 33D(2).
2. That finding by the Tribunal is in para 76 of the decision: 76. It is not in dispute that BCM had not paid taxes to (ATO) from 2015 and by 2019 these debts were substantial…
3. The appellant concedes that BCM had not paid taxes from 2015. However the appellant says that the Tribunal had not considered his evidence - that an external accountant did the books of the company and he had not known of the debts at the time. If he was unaware of the tax debts, they could not be relied on as a reason to find he could not rely on s33D(2).
4. The respondent relies on the decision in Poytress (supra) where the Tribunal cited with approval (in para 71) this part of the decision in Clarke: (iii) The steps taken by the applicant must be objectively reasonable in the sense that they would be those taken by a 'reasonable person endowed with the knowledge and experience of the [applicant]'. (McDonald at [26-27]).

Consideration

1. There is a duty on all directors to make themselves aware of their company's details (Poytress supra at [86]).
2. The following evidence was before the Tribunal: 1. The appellant had been the sole director and company secretary of BCM since it was registered in August 2012. 2. The appellant was the director of a number of other corporations and the registered company secretary of a number of other corporations. 3. The 2021 Report stated, "On 4 May 2021, the Director provided me with a Report on Company Activities and Property ("ROCAP'), together with a listing of all known creditors". … "For the sake of completeness, the Director advised in his ROCAP that there was an outstanding taxation liability due to the ATO by the Company in the sum of $555,632". 4. The 2021 Report stated that BCM had failed to pay payroll tax for the financial years 2015 to 2019 inclusive which amounted to $67,482.42 and had failed to pay income tax estimated in the amount of $555,63212. We note that the actual outstanding tax liability is shown in the 2023 Report as $979,309.
3. We are satisfied that it was open to the Tribunal to find the appellant should have been aware of BCM's tax liabilities, in considering what a reasonable person endowed with the knowledge and experience of the appellant would have done in relation to those liabilities. A director should take the reasonable step of making themselves aware of the financial obligations of the company.
4. No error is disclosed. Ground 2 is dismissed.

The third Ground of Appeal

1. The third Ground of Appeal says: The tribunal erred by concluding at [78] that the appellant caused BCM to loan Bronxx funds, resulting in a debt to BCM, without identifying what evidence it was relying on to make good that finding of fact. The tribunal erred in not considering or reconciling the appellants evidence that either denied the transaction or at least that he was unable to confirm it. The tribunal should have found that an incomplete liquidator's report was not evidence that could be relied upon (if that is what was being relied upon), ·in the absence of any acceptance by the appellant that it was accurate, and there was no other evidence of what was alleged before the tribunal.
2. Para 78 of the Tribunal decision says: On 1 July 2020 and on 31 March 2021, Mr Goodman caused a loan transfer from BCM to Bronxx resulting in a debt to BCM of $2,249,023.
3. The appellant says that the Tribunal erred by not identifying the evidence relied on to support that finding, as the appellant either denied the transaction or at least was unable to confirm it.
4. The appellant's second submission was abandoned as it related to the reliability of the 2021 Report.
5. The respondent says: 1. The 2021 Report stated "Reference to the financial statements provided by the Company's external accountant reveal that the Company was owed $2,249,023 in respect to related party loans as at 30 June 2020. However a review of the financial statements for the period ended 31 March 2021 reveal that there were no loans currently outstanding." This information was confirmed in the 2023 Report. 2. The Tribunal was correct in preferring the objective evidence of the 2021 Liquidators Report to that of the appellant. 3. It was incumbent on the Tribunal to take into account all the relevant facts and circumstances surrounding what steps were taken and equally what steps were not taken by the appellant to avoid BCM being placed into placed into external administration. This included whether or not the appellant as a director and secretary of BCM knew of the extinguishment of monies owing to BCM through the use of related party transactions. 4. The error of law alleged by the appellant rests on a claim that the Tribunal did not consider or weigh the evidence. The Tribunal is only required to consider the evidence before it and it is not incumbent on the tribunal to resolve competing evidence. This submission relied on the decision in Soulemezis v Dudley (Holdings) Pty Ltd 10 NSWLR 247 per McHugh JA at 280: "A trier of fact is not obliged to address, and reconcile, every contradiction or inconsistency in the evidence. The law does 'not require lengthy or elaborate reasons' but it is 'necessary that the essential ground or grounds upon which the decision rests should be articulated':

Consideration

1. As we have said in relation to the second Ground of Appeal, there is a duty on directors to be aware of the company's details. The appellant was the sole director and secretary of BCM.
2. We were not taken to any part of the evidence before the Tribunal where the appellant denied knowledge of the removal of the funds. In reply to several questions about whether any of the missing funds had been paid to him as a dividend he replied, "I don't know".
3. The evidence of this transfer of funds came from the 2021 Report.
4. We consider that it was open to the Tribunal to find firstly that the transfer of funds occurred and that secondly it was the appellant who caused the loan transfer from BCM to Bronxx resulting in a debt to BCM of $2,249,023.
5. No error is disclosed. Ground 3 is dismissed.

The fourth Ground of Appeal

1. The fourth Ground of Appeal relates to the underlined sentence in the Tribunal's decision: 81. Mr Goodman's evidence is that he relied on advice from his solicitor and accountant about 2 years after BCM stopped undertaking work which would make it about 2021. It was the steps taken by Mr Goodman prior to 2021 that contributed towards BCM's insolvency. Secondly, Mr Goodman's evidence is that he acted on the legal and accounting advice to avoid trading while insolvent. There is no suggestion that Mr Goodman received advice as to the steps he should have taken to avoid BCM being placed into external administration. This is consistent with Mr Barnden's view that BCM was or very close to being insolvent at the time it was placed into administration.
2. The appellant says: 1. the Tribunal reversed the onus by taking into account that there was no evidence that the appellant had received advice as to what he could have done to avoid the insolvency of BCM. 2. The Tribunal denied him procedural fairness by making that finding against him when it was never put to him in cross-examination.
3. The respondent: 1. concedes that, although the appellant does not bear an onus to prove that he had received advice as to what he could have done to avoid the insolvency of BCM, it was the appellant's application. Thus he challenged the finding that he had not satisfied the exemption in s 33D(2) of the Act so that he was asserting he had taken all reasonable steps to avoid BCM being placed into administration and was on notice this would be an issue in the proceedings. Thus, submitted the respondent, if the appellant wished to rely upon evidence that he had received advice as to the steps to take to avoid BCM being placed into administration then it was his responsibility and not the responsibility of the respondent to adduce that evidence and he had not done so. 1. relies on the following passage in Clarke supra: "38. 11 To these should probably be added a fourth, though it is obvious enough from the provision: (iv) The person under notice has the task of satisfying the Commissioner that he or she took all reasonable steps to avoid the insolvency.

Consideration

1. We accept the submissions made by the respondent. The appellant's submission attempts to elevate what is an observation by the Tribunal concerning the absence of evidence into a finding of fact. We accept that there was nothing to put to the appellant as he had not led evidence of having received advice as to steps to take to avoid BCM from being placed into administration and thus there was no denial of procedural fairness.
2. No error is disclosed. Ground 4 is dismissed.

The fifth Ground of Appeal

1. The appellant says: The tribunal erred in finding that the appellant was not a fit and proper person to hold a license because he failed to provide information regarding the external administration of BCM at [86]. The tribunal erred in failing to refer to, or reconcile, the evidence or the submissions of the appellant that the non-disclosure was inadvertent before making the finding at [86].
2. Para 86 of the decision says: The Commissioner asked Mr Goodman why he failed to provide information regarding the external administration of BCM on 10 February 2022. Mr Goodman did not provide an explanation. No explanation was provided to the Tribunal. Mr Goodman's application for an individual contractor licence made on 8 March 2022 again failed to disclose that BCM was placed into external administration. Mr Goodman has not explained why he incorrectly filled in the application and failed to disclose this fact to the Commissioner.
3. The appellant says that when making its finding, the Tribunal had not dealt with the evidence of the appellant who had said he had answered the questions honestly and truthfully and he thought that the reference to a body corporate was a reference to an owner's corporation, not a company.

Consideration

1. The Tribunal was aware that the appellant contended that any omission was inadvertent (para 61 of the Decision).
2. The application form which the appellant signed on 16 November 2021 did not directly ask whether he was a director of a company in external administration. The appellant did send a letter with that application form in which he said: 'In 2019, as part of our transition away from third party contracting environment, I decided to surrender our contractor's licence' for BCM." He did not mention that BCM had been placed into external administration.
3. On the second application form dated 17 December 2021 the appellant answered "No" to the following question: There has been a change of circumstances of events that have occurred since the last renewal that may affect my eligibility to renew and/or retain this authority. This includes any changes to circumstances involving the certificate holder any entities or licences with which they are associated. Circumstances or events that may affect eligibility include: * Bankruptcy of any individual * Being a director of a body corporate in external administration (including directorship during or within 12 months of admission) * Entering into an arrangement to pay debts * Orders of a Tribunal or Court * Insurance claims against contracts entered into * Criminal convictions or pending charges
4. On 8 March 2022, the appellant again failed to disclose that fact when he applied for an Individual Contractor Licence on 8 March 2022. The application form had the following words in bold under question 6: NOTE: if you … the director of a company that is currently in external administration …, Fair Trading cannot issue you with a contractor licence in the categories of Builder…"
5. On 7 January 2022, the Commissioner wrote to the appellant. On 2 February 2022, solicitors for the appellant provided the Commissioner with an affidavit from the appellant dated 2 February 2022 in which he disclosed that BCM was in liquidation. On 10 February 2022, the Commissioner wrote to the appellant seeking information about BCM being placed into liquidation and asked him to explain why he had not disclosed it in his application and to provide the written report to creditors and the 2021 Report. On 25 February 2022, the appellant responded with some details but he did not give any reason as to why he had failed to disclose the external administration of BCM in his application and did not provide the documents.
6. It can be seen from this chronology that the use of the term "body corporate" was only used on the second application form. That explanation by the appellant accordingly does not apply to para 86.
7. The Tribunal held that it was concerned about the appellant's lack of candour, described the lack of disclosure of necessary information on the application forms on three occasions as stark and said the information which he did later provide was incomplete.
8. The Tribunal held that the appellant's failure to understand that he was required to disclose those details demonstrated that he did not have the necessary knowledge and ability to comply with the licence requirements and be regarded as a fit and proper person to hold a Certificate and that a person who makes an application for a licence under the Act has an obligation to ensure that the information is accurate and complete.
9. We accept the submission made by the respondent that these findings show that the Tribunal had not accepted the appellant's evidence when he said that he did not know the difference between a corporation and a body corporate.
10. No error is disclosed. Ground 5 is dismissed.

Leave

1. In view of our findings, there is no need to determine the appellant's application for leave under s 80(2)(b) to appeal on grounds other than a question of law.

Orders

1. We make the following Order: 1. The Appeal is dismissed.

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: 19 September 2023