Goodman v Commissioner for Fair Trading

Legislation

1. The Act provides for the regulation of home building and specialist work in NSW. The Act is concerned with protecting consumers, in part by regulating the issue, suspension and cancellation of various licences in relation to residential building work.
2. Under section 25 of the Act the Secretary must refuse an application for a supervisor certificate for reasons including that the person is not a fit and proper person to hold a contractor licence. (1) The Secretary must refuse an application for a supervisor or tradesperson certificate if-- (a) the Secretary is not satisfied that the applicant is a fit and proper person to hold such a certificate, or (a1) the Secretary is not satisfied as to the matters of which the Secretary is required to be satisfied by sections 33B and 33D, or … (1A) Without limiting subsection (1)(a), in determining whether an applicant is a fit and proper person to hold a certificate the Secretary is to consider whether the applicant is of good repute, having regard to character, honesty and integrity.
3. Section 33B(1)(a)(x) and 33B(1)(a)(xv) requires the Secretary to be satisfied that the relevant person seeking a Certificate has not had a relevant involvement with a body corporate that has carried out work in respect of which the Secretary considers an unreasonable number of insurance claims have been paid, and is not at the time of the application a director of or a person concerned in the management of a Chapter 5 body corporate.
4. 33D provides that: (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) Despite section 33B(1)(a)(xiii)-(xvii), the Secretary may issue a supervisor certificate if the Secretary is satisfied that the relevant person took all reasonable steps to avoid the relevant bankruptcy, winding up or appointment of a controller or administrator.
5. In determining an application concerning an administratively reviewable decision, s 63 of the Administrative Decisions Review Act 1997 (NSW) (ADT Act) 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) by the parties.
6. 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 Issues

1. The issues to be considered by the Tribunal are: 1. Whether Mr Goodman took all reasonable steps to avoid the placement of the Company into external administration: s33D(2) 2. Whether Mr Goodman is a fit and proper person to hold the Certificate: s25 3. Whether Mr Goodman possesses the capacity of doing and supervising the works to which the Certificate pertains: s33D(1)(c)

Evidence and submissions relied upon by the parties

Section 33D(2) Whether Mr Goodman took all reasonable steps to avoid the winding up of the Company

1. Mr Goodman was the sole director and secretary of BCM since it was registered in August 2012. BCM was a construction management company. Mr Goodman is also the sole director and shareholder of the ultimate controlling entity of BCM (Bronxx Holdings Pty Ltd and Goodman Holdings Pty Ltd). On 12 November 2012 BCM was issued with a Contractor Licence and Mr Goodman was nominated as supervisor for BCM.
2. In January 2019 an application was commenced in the Supreme Court of New South Wales against BCM for defective work. The legal proceedings in the Supreme Court of New South Wales were transferred to the District Court of New South Wales. The litigation cost BCM $170 000.
3. In the same year 2 claims were commenced against BCM in NCAT, a work order was made in regard to Ms Costello (Northcote Ave), HB19/27553 on 1 March 2020 and a money order was made for $2300 for Argenta HB19/17719 on 24 February 2020.
4. On 10 July 2019, Mr Goodman caused Bronxx Pty Ltd (Bronxx) to be incorporated and it was issued a contractor licence on 10 September 2019.
5. In October 2019 BCM ceased trading and on 27 November 2019 Mr Goodman surrendered BCM's licence.
6. On 19 May 2020 a judgement debt was issued by the District Court of New South Wales against BCM for $544 324 plus legal costs.
7. In the affidavit dated 1 November 2022 Mr Goodman stated that he became aware of BCM's financial difficulties in May 2020.
8. Mr Goodman stated in his affidavit dated 2 February 2022 that Bronxx contributed $840 000 to fund BCM's cashflow as BCM had no projects for income. The funds were used to pay for maintenance claims, defect rectification cost (where applicable) and litigation costs.
9. On 1 April 2021 the name of BCM was changed to ACN 159308442 Pty Ltd.
10. About two years after BCM stopped undertaking work, Mr Goodman received advice from Kamper Chartered Accountants at Rockdale and legal advice from Ray Roser of Sydney to apply for a winding up of BCM as he 'did not want to trade insolvent.'
11. In the affidavit dated 1 November 2022 Mr Goodman stated that: BCM attempted to defend claims and/or make claims for outstanding monies however I had to take into account the advice given to me as a director for BCM by the accountant and solicitor to apply for winding up for BCM as I did not want to trade insolvent.
12. After the receipt of the advice, Mr Goodman engaged a liquidator to place BCM in liquidation. On 3 May 2021, BCM, by way of special resolution under s491(1) of the Corporations Act 2001 (Cth), appointed Mr Barnden of Rodgers Reidy as Liquidator for the purpose of a creditors voluntary winding up of BCM and it placed into external administration.
13. In evidence is a report from Rodgers Reidy, the liquidator dated 2 August 2021. The liquidator's report stated that that BCM has not traded since December 2019 and that the reason for the failure off the company was due to multiple legal proceedings commenced against the company for defective and/or incomplete work.
14. Mr Barnden records that he was provided this information by Mr Goodman which he does not dispute but that additionally there is a debt due to the Australian Taxation Office (ATO) which appears to have contributed to the failure of the company.
15. Mr Goodman's opening submission dated 3 November 2022 at [34] stated that it was the 'default judgement issued against BCM' that caused Mr Goodman to wind up BCM.
16. Mr Goodman's submission is that ultimately he took all reasonable steps to avoid the winding up of BCM as he relied on the professional advice of his accountant and solicitor and that it was not put to him in cross examination that the reliance was misplaced or breached his obligations to act in the best interests of the company.
17. The Commissioner submitted that it is irrelevant whether Mr Goodman followed the advice of his accountant and lawyer but what 'genuine' steps he took to avoid the winding up and that Mr Goodman did not take steps to avoid the winding up but 'rather hastened the winding up of BCM'.
18. The Commissioner relies on the evidence that Mr Goodman by surrendering BCM's licence on 27 November 2019 precluded BCM from performing any licenced home building work and the necessary defect rectification work.
19. Secondly, the Commissioner submits that by incorporating a new entity, Bronxx on 10 July 2019 which performed similar work to BCM, BCM was precluded from earning revenue.
20. Thirdly that Mr Goodman transferred fifteen motor vehicles owned by BCM instead of selling the assets. This occurred after Mr Goodman became aware of the financial difficulties in May 2020.
21. Fourthly, that Mr Goodman authorised the repayment of a loan to BCM for $2 249 023 between 1 July 2020 and 31 March 2021 to a related party controlled by Mr Goodman. This occurred after Mr Goodman became aware of the financial difficulties in May 2020.
22. Sixth, that the rectification work on building claims was performed by other companies controlled by Mr Goodman. BCM was charged $840 000 for these works. The Commissioner submits that BCM could have performed the rectification work if its licence was not surrendered, and its assets were not removed by Mr Goodman.
23. Seventh, BCM failed to pay payroll tax in the years 2015 to 2019 and company tax in the amount of $555 632.
24. The Commissioner submits that these actions were 'premeditated, systematic, deliberate and designed' … 'to cause the insolvency and winding up of BMC in order to avoid the costs it would have incurred in properly addressing the rectification works, in particular for Northcote Avenue' … and to 'avoid satisfying the debt entered against BCM on 19 May 2020 and soon after when he surrendered BCM's contractor's licence.'
25. The Commissioner also relies on ss33B(1)(a)(xv) and 33B(1)(a)(xvi), which must be read together with s33D(2) of the Act. These sections provide that the Commissioner must not issue a Certificate to person who was a director of a company that has been wound up within 3 years before the application unless he or she is satisfied that the person took all reasonable steps to avoid the winding up of the company.

Whether Mr Goodman is a fit and proper person to hold the Certificate ss25(1)(a), 25(1)(a1), s25(1A)

1. The Commissioner submitted that Mr Goodman is not a fit and proper person for the following reasons: 1. Mr Goodman's application to the Commissioner contained incorrect information. Mr Goodman answered 'No' when declaring that (i) he was not 'a director of a body corporate in external administration', (ii) there were no 'Orders of a Tribunal or Court', (iii) there were no insurance claims against contracts entered into by an entity associated with him that might affect his eligibility to retain this Certificate; 2. Mr Goodman's failure to disclose necessary information in the applications as to BCM being in external administration, judgement against BCM, insurance claims against BCM or complaints against BCM; 3. Mr Goodman's failure to provide the Commissioner with the liquidator's report to creditors; 4. Mr Goodman's lack of contrition; and 5. Lack of evidence as to new system to prevent past problems with rectification of defects.
2. On 16 November 2021 Mr Goodman made an application to the Commissioner to renew the Certificate together with an attached letter which included information about the 2 NCAT claims made against BCM.
3. On 17 December 2021, Mr Goodman made the same application to the Commissioner to renew the Certificate as he had not received any response to the application he lodged on 25 November 2021.
4. On 8 March 2022, Mr Goodman made an application to the Commissioner for a builder's licence.
5. The forms prepared by the Commissioner changed sometime between 16 November 2021 to 17 December 2021. The form dated 16 November 2021 was in the following terms: Question 2.1 Please provide the following information regarding any complaints and disciplinary actions Details of the Complaints and/or Disciplinary actions A written detailed explanation of the circumstances which led to the Complaints and/or Disciplinary actions Details of actions taken to avoid lodgement of the Complaints and/or Disciplinary actions What would you do differently if the same set of circumstances arose again Provide any supporting evidence to confirm you have paid an Infringement notice Complaints and Disciplinary action include all penalty notices, Infringements notices and formal cautions.
6. Mr Goodman answered: 'Refer (sic) attached letter dated 16 November 2021 provided with this form.' Question 2.3 Please provide the following information regarding any Orders of the Tribunal or other Courts Written confirmation must be provided from the licensee, or a director/member in the case of a company or a partnership, as to the details of the order and supporting documents that show the date the money or work was order was complied with. It outstanding, reasons why you have not complied with the order within the required timeframe.
7. Mr Goodman replied: 'Refer (sic) attached letter dated 15 November 2021 provided with this form.'
8. Question 2.4 was about Paid or Pending Insurance Claims. Mr Goodman replied: 'Nil'.
9. Mr Goodman's letter dated 16 November 2021 responds to questions 2.1 to 2.5 of the application form. Mr Goodman stated that 'In 2019, as part of our transition away from third party contracting environment, I decided to surrender our contractor's licence' for BCM. Mr Goodman goes on to say that he will attend to any 'genuine defects within our works' and that he has set up 'a defect/warranty process to ensure all warranty claims are actioned in a timely manner.'
10. The letter did not include a copy of any Orders or any supporting documents but did attempt to explain the reasons as to why the Order had not been complied with.
11. Mr Goodman explained that the Order made by NCAT against BCM in matter HB19/17719 is an Order for $1500 that has not been paid. Mr Goodman stated 'we are still determining the best course of action to remedy the NCAT judgement.'
12. As to matter HB2019/27553 Mr Goodman stated that the claim involved defects that had been rectified by March 2020.
13. The form dated 17 December 2021 contained 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

1. Mr Goodman ticked the box 'No' on the application form. Mr Goodman gave no evidence as to why he ticked the box 'No'.
2. On 7 January 2022, Ms Holt from the respondent wrote to Mr Goodman seeking further information about the NCAT matters, referring to s33B of the Act and stating that the Certificate cannot be renewed or restored where an Order from NCAT or Court is outstanding. The letter also made reference to 3 home warranty insurance claims made against BCM.
3. Ms Holt asked for: 1. The date on which the Order in matter no HB19/27553 was complied with; 2. Written response outlining details of the actions taken to comply with NCAT Order in matter HB19/17719; 3. Evidence that Order complied with; 4. Events leading to as well as details of and response to the 3 insurance claims; and 5. Reason why no information regarding the insurance claims was provided with the application.
4. On 2 February 2022, solicitors for Mr Goodman provided the Commissioner with Mr Goodman's affidavit dated 2 February 2022. Mr Goodman disclosed that BCM was in liquidation. As to matter HB19/17719, Mr Goodman stated that the Order for $1500 had not been complied with. As to matter HB19/27553, Mr Goodman explained that the owners had not restored the proceedings and that 91% of the rectification had been completed.
5. The affidavit contained a heading 'Insurance Claims' above paragraph 25. However paragraph 25 attaches the two applications Mr Goodman submitted on 15 November 2021 and 7 December 2021. There is no information about the insurance claims.
6. In regard to systems in place to limit future claims, Mr Goodman explained that BCM ceased all residential building work on a direct contract basis in 2019. In paragraphs 16.2 to 16.7, Mr Goodman set out the structure of BCM, the software it uses, the inhouse training and licensing and finance arrangements. Mr Goodman's evidence was that there was in place a new system called Procore which ensured that genuine defects and warranty claims are actioned in a timely manner due to the manner in which the claims are logged, reported and actioned.
7. On 10 February 2022, Ms Holt wrote to Mr Goodman a second time seeking information about BCM being placed into liquidation. Mr Goodman was required to fill in an additional form and provide reasons why he did not provide information regarding the external administration of BCM in his application. He was also asked to provide the written report to creditors and the Report as to Affairs which was prepared on 2 August 2021.
8. On 25 February 2022, Mr Goodman responded in a letter with the following details: 1. BCM had not traded for approximately two years prior to the winding up order; 2. He became aware of financial difficulties around May 2020 when he received a default judgment for a District court case; 3. He was not aware of the proceedings until he received the default judgment which was over $500 000; 4. He provided $840 000 to BCM from his other businesses to ensure there was cashflow to action warranty; and 5. He could not provide further funds to BCM when he received the default judgement due to the Northcote property litigation.

Whether Mr Goodman possesses the capacity of doing and supervising the works to which the Certificate pertains. S33D(1)(c)

1. Mr Goodman submits that the complaints, the insurance claims and judgements about defects made by NCAT and the District Court do not, themselves, indicate any failure to supervise work in 'circumstances where there is no basis for concluding that the underlying cause of any defect found to exist was a failure to supervise or carry out the work'.
2. Mr Goodman submits that the Commissioner made the decision without evidence and that the Commissioner bears the onus of demonstrating that Mr Goodman is incapable of doing or supervising the work.
3. The Commissioner submits that one of the reasons why Mr Goodman's application was refused was because of his capacity to supervise the work and that the issue of his capacity was an issue before the Tribunal. The Commissioner submits that 'the burden lay on Mr Goodman to show that the findings of the Internal Reviewer … were incorrect.'

Consideration as to whether Mr Goodman took all reasonable steps to avoid liquidation of BCM?

1. Mr Goodman submitted, and the Commissioner did not take issue with the view that the proper approach in examining whether a person took 'reasonable steps' to avoid the winding up within the meaning of s33D(2) the Act was dealt with in Poytress v Director General, NSW Fair Trading [2015] NSWCATOD 100 (Poytress). At [10]: (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 or was 'aware' or 'should have been aware' of that possibility. The focus is the steps taken to avoid the relevant event- 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. (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]'. (iv) The person under notice has the task of satisfying the Commissioner that he or she took all reasonable steps to avoid the insolvency. (footnotes not cited)
2. 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].
3. 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.
4. Mr Goodman's evidence is that he decided that BCM would stop trading in 2019 and on 27 November 2019, Mr Goodman surrendered BCM's licence. From this point on, BCM could not perform any construction management or building work. This was the beginning of the end for BCM as from this time onwards its income diminished rapidly and its debts continued to accrue.
5. Mr Goodman's evidence was that his decision to surrender BCM's licence was made because he determined to change his 'business model'. Bronxx was incorporated on 10 July 2019 and commenced to perform building work instead of BCM.
6. It is not in dispute that BCM had not paid taxes to (ATO) from 2015 and by 2019 these debts were substantial. An insurance claim was made against BCM on 1 April 2019. I accept Mr Goodman's evidence that he was not aware of the insurance claim at this time.
7. A number of steps taken by Mr Goodman from 2019 onwards contributed to BCM's financial problems. First, Mr Goodman caused BCM's earning capacity to be halted by surrendering its licence. Mr Goodman caused Bronxx to be incorporated and issued with a contractor licence on 10 September 2019. Bronxx performed similar work to that previously performed by BCM.
8. 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.
9. Mr Goodman's evidence was that he transferred the 'debt' of the motor vehicles to Bronxx but there is no evidence of any debt on the motor vehicles. The motor vehicles were BCM's assets.
10. These steps precipitated BCM's insolvency. Mr Goodman's evidence was that he agreed to make good the rectifications personally, however the evidence was that the rectifications were performed by Bronxx and charged to BCM in the amount of $840 000 for the defect rectification work caused by BCM.
11. 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.
12. In the circumstances I am not satisfied that Mr Goodman took all reasonable steps to avoid BCM being placed into external administration. As such, he can not rely on the exemption in s33D(2) and pursuant to s33B(1)(a)(xv), a Certificate cannot be issued to him because he is a director of BCM which is under the external administration of the Liquidator, Mr Barnden.

Consideration as to whether Mr Goodman is a fit and proper person to hold a licence

1. The meaning of 'fit and proper person' pursuant to s25 of the Act is not in contest. The notion of 'fit and proper' goes to the person's character. It is a focus on the person's honesty, knowledge of the duties and responsibilities on a licence holder and ability to comply with the licence requirements sought, however it is not confined to those matters. Issues such as 'moral integrity' and being entrusted to safely perform the work which the licence entails are also relevant. Each case depends on its own circumstances. Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 at 156-7; Sobey v Commercial and Private Agents Board (1979) 20 SASR 70.
2. In this case, the Commissioner submits that Mr Goodman is not a 'fit and proper person' because he failed to disclose to the Commissioner that BCM was in administration when he applied for the renewal of the Certificate on 15 November 2021 and on 17 December 2021. BCM was placed into external administration on 3 May 2021.
3. Mr Goodman informed the Commissioner that BCM was placed into external administration on 2 February 2022.
4. 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.
5. A person who makes an application for a licence under the Act has an obligation to ensure that the information is accurate and complete. Mr Goodman has failed to explain or provide an excuse why he failed to provide accurate and complete information to the Commission when he completed the applications on 16 November 2021, 17 December 2021 and 8 March 2022. Mr Goodman failed to provide an explanation when specifically asked by the Commissioner or in these proceedings.
6. Mr Goodman's failure to explain why he failed to provide accurate and complete information goes to his character, specifically his knowledge and ability to safely perform the activities for which the Certificate is sought. As a director, Mr Goodman has responsibilities to be aware of his company's details. Mr Goodman signed the application, which included the following words: Making a false or misleading statement, giving false or misleading information … is a serious offence which may render you liable to prosecution for offences including under the crimes act which may result in penalties including a fine or imprisonment
7. As to the form Mr Goodman signed on 16 November 2021, the false information is alleged to be that BCM complied with the Order in matter HB19/27553 as to the rectification of defects. However in his affidavit dated 2 February 2022, Mr Goodman stated that the owners had not restored the proceedings and that 91% of the rectification had been completed. Ultimately these clients made an insurance claim and were paid for rectification of defects.
8. I accept that the information provided by Mr Goodman with the application form that the Order in matter HB19/27553 as to the rectification of defects was complied with was incorrect.
9. I accept Mr Goodman's evidence that he was not aware of the insurance claims and complaints at the time he made the applications.
10. There was no question on the application Mr Goodman signed on 16 November 2021 that asked him whether he was a director a company in external administration.
11. The application dated 17 December 2021 did ask a question about being a director of a company in external administration. Mr Goodman answered 'no'. BCM was placed into external administration on 3 May 2021. Mr Goodman's statement was false. Mr Goodman was also asked about any judgements and Orders made against BCM which he also answered 'no'.
12. Mr Goodman's failure to understand that he was required to disclose those important details to the Commissioner demonstrates that he does not have the necessary knowledge and ability to comply with the licence requirements and to be regarded as a fit and proper person to hold a Certificate.
13. By failing to provide any explanation as to why he failed to provide accurate and complete information to the Commissioner at the time he made the applications or thereafter, Mr Goodman has failed to demonstrate to the Tribunal that he has insight into his conduct. This is important because as a holder of the Certificate, Mr Goodman has to demonstrate that he understands and complies with the legislative requirements: Poytress [91].
14. I am concerned about Mr Goodman's lack of candour. The lack of disclosure of necessary information on the application forms on 3 occasions is stark. I accept that he provided some information in the letter together with the application dated 16 November 2021, but the information was not accurate or complete. It is also not known why he failed to disclose any information and failed to correctly answer the questions when he made the application on 17 December 2021 and 8 March 2022. He failed to provide the reports associated with the external administration to the Commissioner.
15. It also remains unclear why, after the Commissioner pointed out to Mr Goodman that there were 3 insurance claims made against BCM on 7 January 2022 and asked him to explain events about the work, he failed to do so in his response to the Commissioner on 2 February 2022. Mr Goodman has given no explanation why he failed to respond to the Commissioner about the insurance claims once they were pointed out to him.
16. I am not satisfied that Mr Goodman is a fit and proper person to hold a Certificate within the meaning of s21(1)(a) of the Act.

Consideration as to whether Mr Goodman possess the capacity of doing and supervising the works to which the Certificate pertains S33D

1. For a Certificate to be issued, the Tribunal must be satisfied that the applicant has the requisite qualifications; and has the requisite experience; and is capable of doing or supervising work for which the certificate is required.
2. In the current proceedings there is no issue that Mr Goodman has the requisite experience or qualifications, what is at issue is whether Mr Goodman, as alleged by the Commissioner 'neglected his responsibilities as a licence holder by not completing work to an acceptable industry standard' as evidenced by the judgements against BCM, the 'unreasonable number' insurance claims (s33B(1)(a)(x)) which have been paid out, BCM's insolvency and BCM's lack of systems to deal with complaints and rectifications which makes him not 'capable of doing or supervising work' within the meaning of s33D(1)(c) of the Act.
3. The undisputed evidence before the Tribunal is that the 6 insurance claims have been closed and that $3 623 143 has been paid out. The judgement debt, the NCAT claims and the complaints ended up becoming the insurance claims. Mr Goodman has not led any evidence that the insurance claims did not involve defects. The fact that the insurance claims were paid out strongly suggests that there were defects. These claims are from 2017 to 2021. Mr Goodman's evidence is that he has overseen some 230 building developments with another 150 developments on foot as at 2 February 2022. Mr Goodman has won numerous building awards.
4. I have considered the decision in Obradovic v Commissioner for Fair Trading, Office of Fair Trading (GD) [2006] NSWADTAP 18 particularly paragraphs 43 and 55 however the Tribunal has also not been assisted by having to decide in a vacuum what an 'unreasonable number' of insurance claims means without any comparative evidence or any submission as to how it is to decide what an 'unreasonable number' of insurance claims means. In these circumstances, I am not satisfied that Mr Goodman is precluded from being issued with a Certificate because of the operation of s33B(1)(a)(x) of the Act.
5. There is no evidence before the Tribunal as to industry standards as to numbers and prevalence of insurance claims and I cannot be satisfied that 6 insurance claims is an 'unreasonable number' of insurance claims within the meaning of s33B(1)(a)(x).
6. In coming to a decision as to whether Mr Goodman is capable of doing or supervising work, it imperative to consider the protection of the public. Within the hierarchy of licences under the Act, the Certificate is the most important in terms of having the power and authority to provide as far as possible compliance with the legislative scheme. However there is insufficient evidence to ground a factual finding that there is an 'unreasonable number' of insurance claims.
7. I reject the Commissioner's submission that there is a burden on Mr Goodman to show that the findings of the Internal Reviewer were incorrect. This is not an appeal, it is an administrative review of the administratively reviewable decision made by the Commissioner: s7(1) of the ADR Act, as stated in PSG Security Group Pty Ltd v Commissioner of Police, NSW Police Force; ERA Security Group Pty Ltd v Commissioner of Police, NSW Police Force [2022] NSWCATOD 164 at [82]-[83] The review of the respondent's decision conducted by the Tribunal is a review de novo. Colloquially referred to as 'standing in the shoes of the decision maker' or considering the matter 'afresh'. It is not an appeal from the decision-maker's decision. The task for the Tribunal is to determine whether the respondent's decision to revoke the licences is the correct and preferable decision having regard to the material before it. The Tribunal is not bound to make the decision on the basis made by the respondent or in the manner contended for by the applicant. The Tribunal must, after considering all the material before it and providing the parties with procedural fairness, make its own decision.
8. The Commissioner's reliance on Limberis v Commissioner for Fair Trading [2017] NSWCATOD 128 and Shoobridge v Commissioner for Fair Trading [2015] NSWCATOD is of no assistance as these cases are about new applications for a licence and different requirements as to evidence of experience apply.
9. Taking into account all of the material before the Tribunal, I am satisfied that Mr Goodman is capable of doing or supervising the work for which the Certificate is required.

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: 22 May 2023