Iyaz v Secretary, Department of Customer Service [2025] NSWCATOD 52

"Having regard to the information provided in the original decision and internal review submission, I have determined that refusal of the application in accordance with:

· section 20(1A) of the HBA is incorrect as there is no specific ground for refusal under this section

· section 20(1)(a) of the HBA is correct as Mr Iyaz has not assuredly demonstrated that he is a fit and proper person to hold a contractor licence under the HBA at this time

· sections 33C(1)(b)(i) and 33D(1)(b) of the HBA is also correct as Mr Iyaz has not assuredly demonstrated that he has attained two years' acceptable relevant industry experience in a wide range of building construction work for the issue of a contractor licence in the category of general building work to meet the requirements of the Instrument at this time.

Therefore, I conclude the current application by Muhammad Rohail Iyaz for a contractor licence must be refused in accordance with sections 20(1)(a), 33C(1)(b)(i) and 33D(1)(b) of the HBA."

1. The Applicant has applied to the Tribunal for external review of the decision to refuse to grant the application.

1. The issues for determination are whether the correct and preferable decision is to grant the application. This requires consideration of two central issues:

(1) whether the Applicant has sufficient acceptable relevant industry experience in a wide range of building construction work; and

(2) whether the Applicant relied upon a fraudulent reference.

1. In October 2023, the Applicant applied for a contractor licence in the category of general building work. In support of his application, the Applicant declared that he had gained experience with Australex Group Pty Ltd ("Australex") between February 2016 and June 2023. He described the type of work as construction project management.
2. Annexed to the application is a referee statement ("the referee statement") purportedly signed by Mr Mahmoud Mearbany. The referee statement provided Mr Mearbany's contact details and included his contractor licence number. It certified that the Applicant had demonstrated a level of knowledge and experience in a wide range of building work that would allow him to competently perform the roles and responsibility of a licenced builder.
3. The referee statement provided details in relation to two sites:

(1) Miranda Road, Miranda ("the Miranda site") where the Applicant was said to have worked from April 2018 to July 2020; and

(2) Harriette Street, Neutral Bay ("the Neutral Bay site") where the Applicant was said to have worked from January 2020 to March 2022.

1. The Miranda site work related to building 77 Apartments. The Applicant's responsibilities were stated as "supervise and manage all trades required from demolition to completion of the project not limited to structure, fit out and public domain work".
2. The Neutral Bay site work related to building 10 Apartments. The Applicant's responsibilities were stated as "supervise and manage all trades from demolition to completion of 10 luxury apartments. The tender not limited to demo, earth works structure, services and fit out".
3. With respect to the referee statement purportedly signed by Mr Mearbany, the Applicant stated that he met with Mr Mearbany at EG Ampol Strathfield on about 3 October 2023. They had met there at Mr Mearbany's request and Mr Mearbany had asked the Applicant to bring him materials related to the company's liquidation. The Applicant stated that he had a telephone conference with Mr Mearbany prior to that meeting, and that Mr Mearbany had agreed to provide the reference. The Applicant stated that Mr Mearbany executed the document at EG Ampol Strathfield meeting.
4. The Applicant stated that he had completed all the details contained in the referee statement but that he had done so at Mr Mearbany's request. Mr Mearbany had signed the referee statement that the Applicant had completed.
5. Mr Mearbany denied that he had provided a referee statement for the Applicant. He denied that he had ever supervised the Applicant and asserted that the Applicant's involvement on the Miranda site and the Neutral Bay site work was limited to administrative tasks.
6. The Respondent determined to refuse the in March 2024. The basis of the decision was that the Applicant had not demonstrated that he is of good repute, having regard to character, honesty and integrity or that he had met the practical experience requirements. Communications that the Respondent had received from Mr Mearbany suggested the referee statement was fraudulent and that the signature on the document was not his.

1. The Applicant relies on his own evidence and bundles of material in support of his licence application. This material relates to projects undertaken by Australex, his position in the company and various documents related to the Miranda and Neutral Bay sites. The Applicant also relies on evidence from Mr William Knight who was employed at Australex between 2016 and 2023. Mr Knight attended the hearing and was cross-examined. The Applicant's legal advisors provided written submissions.
2. The Respondent relies on bundles of material lodged pursuant to section 58 of the ADR Act, and evidence from Mr Mahmoud Mearbany. The Respondent's legal advisors provided written submissions.

1. The HBA is part of the legislative scheme which regulates aspects of the home building industry in New South Wales. The scheme is concerned to provide consumer protection including regulating the issue, cancellation and suspension of contractor licences, supervisors' certificates and trades persons' certificates in the industry: Commissioner of Fair Trading, Office of Finance and Services, NSW Fair Trading v Kassem [2015] NSWCATAP 173 at paragraphs [9] and [10].
2. The Tribunal has jurisdiction to review the Respondent's decision under the HBA, section 9 of the ADR Act and section 30 of the Civil and Administrative Tribunal Act 2013 (NSW).
3. The Tribunal stands in the shoes of the Respondent and has the same powers as the Respondent for the purposes of this review.
4. Section 9 of the ADR Act provides that the Tribunal has jurisdiction in regard to an application for review of a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review. The Tribunal has jurisdiction under section 83B(1) of the HBA in relation to:

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 Administrative Decisions Review Act 1997 of the decision.

1. Section 63(1) of the ADR Act provides that in determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law. It makes its own decision in place of the Respondent's, and there is no presumption that the decision of the Respondent is correct: see McDonald v Director General of Social Security (1984) 1 FCR 354 at [357].
2. The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all material first considered, together with any further relevant material so as to either confirm the original decision, vary it, or set it aside and substitute another. It was said in Drake v Minister for Immigration and Ethnic Affairs (1979) NSW 2 ALD 60 at [77] (albeit in another context) that

"[the] duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view was objectively the right one to be made."

1. Under section 38(2) of the NCAT 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.
2. The standard of proof that applies in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. The Tribunal must decide what the correct and preferable decision is having regard to any relevant factual material. There is no burden or onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at paragraphs [28] - [34]. However, as Principal Member Britton observed in BSR v Office of the Children's Guardian [2015] NSWCATAD 264 at paragraph [17]:

... However, a practical or "forensic" burden can arise from the material presented. A party who asserts a fact has a responsibility to prove that fact: Re Eckersley and Minister for Capital Territory [1979] AATA 59; (1979) 2 ALD 303; Holbrook and Australian Postal Commission [1983] AATA 40; (1983) 5 ALN N46.

1. Section 20(1)(a1) of the HBA states the Secretary must refuse an application for a contractor licence if not satisfied that the applicant is a fit and proper person to hold a contractor licence, or as to the matters of which the Secretary is required to be satisfied by sections 33B and 33C.
2. The combined effect of sections 33C and 33D of the HBA is that the Secretary cannot grant a contractor licence unless the Applicant has met a certain threshold for experience as determined by the Secretary.
3. Section 33C(1)(b)(i) of the HBA requires that a licence not be issued unless section 33D of the HBA is satisfied.
4. Section 33D of the HBA provides:

33D Additional requirements for obtaining supervisor and tradesperson certificates

(1) A supervisor or tradesperson certificate must not be issued unless the Secretary is satisfied that the applicant -

(a) has such qualifications or has passed such examinations or practical tests, or both, as the Secretary determines to be necessary to enable the applicant to do, or to supervise, the work for which the certificate is required, and

(b) has had experience of such a kind and for such a period as the Secretary considers would enable the applicant to do, or to supervise, the work for which the certificate is required, and

(c) is capable of doing or supervising work for which the certificate is required.

1. Section 20(2) of the HBA states that the Secretary may, by notice published in the Gazette, specify qualifications and experience, or additional standards or other requirements, required to be held or met by an applicant for a contractor licence.
2. On 15 December 2022, the Commissioner for Fair Trading signed an Instrument ("the Instrument") that sets out the qualifications and experience or additional standards or other requirements required to be held or met by an applicant for the issue of an endorsed contractor licence or qualified supervisor certificate in the category of general building work. The qualification and experience requirements specified in the Instrument apply to the application.
3. Section 25(4) of the HBA provides:

(a) the specification of qualifications and experience, or additional standards or other requirements under subsection (2), or

(b) the setting of standards or selecting of examinations or tests under subsection (3),

cannot be reviewed by the Tribunal in an application for an administrative review made under this or any other Act.

1. I am satisfied that in this application I am required to give effect to, and cannot review, the experience criteria specified in the Instrument.
2. The Instrument requires that the Applicant must show that he has at least two years relevant industry experience with the majority of the experience obtained within 10 years of the date of the application being made.
3. It is not in dispute that the Applicant has the relevant qualifications for the licence. Accordingly, it is necessary that the Tribunal determines whether or not the Applicant has had experience of such a kind and for such a period as to be eligible for the issuing of the contractor licence.
4. The Instrument requires that the Applicant, during the relevant period, was supervised and directed, in the doing of the class of residential building work in which he claims experience was gained, by the holder of an endorsed contractor licence or supervisor certificate authorising its holder to supervise the work.
5. The Instrument defines "experience" as:

"Experience" means experience gained by the applicant as:

(b) a holder of a qualified supervisor certificate and as a nominated supervisor for the contractor licence held by; or

(c) a holder of an endorsed contractor licence contracted to; or

(d) a holder of a qualified supervisor certificate in the capacity of a nominated supervisor for a contractor licence held by an individual, partnership or corporation contracted to; or

the holder of a contractor licence authorising the holder to do the class of residential building work in which the experience was gained ("the Work"), where the applicant, during the relevant period, was:

• supervised and directed in the doing of the Work by the holder of an endorsed contractor licence or qualified supervisor certificate authorising its holder to supervise the Work, and this is verified in the Relevant Application Form; and
• received Remuneration in accordance with law for the Work which the applicant carried out;

(e) a holder of a qualified supervisor certificate in the category of full general building work or an endorsed contractor licence in the category of full general building work, held continuously for a minimum period of 2 years within 10 years from the date the application is made;

1. The Instrument does not describe the level of supervision necessary. However, in Briggs v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2018] NSWCATOD 175, Senior Member Scahill noted at paragraph [111]:

[T]he Tribunal draws an inference from the objects of the Act that the aim of the supervision is to ensure that Mr Briggs was instructed in what to do; that he was observed to do it and corrected if necessary.

1. This expression has been considered in numerous matters before the Tribunal. In Vitogiannis v Commissioner for Fair Trading, Department of Customer Service [2020] NSWCATOD 157 the Tribunal observed that an applicant cannot verify their own work but can assist the Tribunal in forming a view as to the nature and scope of the experience. Similar views have been expressed in other matters, for example Wood v Commissioner for Fair Trading [2022] NSWCATOD 114.
2. With respect to the necessary breath and nature of experience the Appeal Panel in Lovich v Commissioner for Fair Trading [2015] NSWCATAP 208 observed:

12 The phrase "a wide range of building construction work" is not defined in the Act, the 2004 Regulations or the 2013 Instrument. In interpreting that phrase the Tribunal was required to take into account the subject matter, scope or purpose of the Instrument and the relevant legislation.

13 The decision the subject of the appeal was given orally and ex tempore and must be read with that in mind. In our opinion, a fair reading of the decision does not support the proposition that the Tribunal interpreted the Instrument as in effect mandating that the relevant construction industry experience must include the construction of new buildings. We think that this misinterprets the gravamen of the decision.

14 In our view, the concerns that the Member expressed were reasonable and were not related exclusively to new buildings as such but construction work generally. The adjective "new" was in some respects superfluous. Interpreting the decision in its context, we think that the Member meant to convey that building contractors must have relevant experience that included not only the exercise of basic construction skills but the relevant administrative skills required in the construction industry.

15 In deciding whether Mr Lovich had demonstrated experience in "a wide range of building construction work" the Tribunal was required to have regard to the nature and type of construction work undertaken by Mr Lovich. ...

1. 16 More recently, in Hall v Commissioner for Fair Trading [2023] NSWCATOD 59, Senior Member Dinnen considered a number of decisions and observed at paragraph [21:]

However, as discussed at [21] to [26] of Issa v Commissioner for Fair Trading [2022] NSWCATOD 159 there is nothing limiting the Tribunal's consideration of what exactly the criteria of "a wide range of building construction work" means in the context of an applicant's past work experience. It is not a requirement that an applicant should have constructed a house from start to finish: Vitogiannis v Commissioner for Fair Trading, Department of Customer Service [2020] NSWCATOD 157 at [45]; Wilmot v Commissioner for Fair Trading [2021] NSWCATOD 43 at [90]; Tange v New South Wales Fair Trading [2013] NSWADT 201. Nor is it a requirement that an applicant has experience in all aspects of building work, provided the experience is sufficiently wide: Price v Commissioner for Fair Trading [2020] NSWCATOD 93; Locking v Department of Finance and Services [2013] NSWADT 239; Sollazzo v Commissioner of Fair Trading [2015] NSWCATOD 20.

1. In Locking v Department of Finance and Services [2013] NSWADT 239 at [17-19] Deputy President Hennessey, as she then was, considered that experience as a carpenter was not sufficient to establish "a wide range of building construction work". The Deputy President stated at paragraphs [17] to [19]:

17. This experience in carpentry and joinery work is not the equivalent of "a wide range of building construction work" as required by the Instrument. Carpentry and joinery work is a sub-category of building. It is only one aspect of the work required to be done in order to complete the construction of a residential dwelling.

18. A building contractor has the overall responsibility for a site and must be able to supervise all of the trades required to complete any type of dwelling. Additionally, a builder must be able to determine that all trades have complied with all standards and requirements. There are many gaps in Mr Locking's trade supervisory experience and therefore his understanding of certain trades. Those trades include flooring, bricklaying, stonemasonry, wet plastering, painting, decorating, general concreting, tiling, demolishing, fencing, glazing and waterproofing.

19. A building contractor is also able to contract with the public, and must therefore be able to negotiate a contract, quote for a project and co-ordinate the trades to be able to complete the project on time and within budget. He or she must also be able to negotiate and discuss the jobs with council and private certifiers to ensure that the work is passed fit when appropriate.

1. In Price v Commissioner for Fair Trading [2020] NSWCATOD 93 Senior Member Scahill stated at paragraph [70]:

70 Mr Price argued that his 37 years in the building industry provided sufficient experience for him to obtain a builders licence. He held a builders licence between 2002 to 2009 and has held other licences in the building industry. He argued that he is familiar with the building code and the standards. He contended that a carpenter is able to supervise all of the trades and is experienced in all the fundamental structural principles. He stated that he had supervised other tradespersons. Mr Buttigieg stated that this occurred when he himself left a site to pick something up. Mr Price argued that the principles attached to building or renovating a bathroom or kitchen are the same as those in relation to other aspects of building a house. However, the Tribunal notes that the Instrument focuses on demonstration of the Applicant's experience in work. That is the evidence needs to show that the Applicant has had experience in undertaking the kind of work expected of the contractor. This is not the same as understanding the principles. In this respect, the Tribunal notes there are different principles that apply in the areas of plumbing, tiling, waterproofing, carpentry and painting. Each of these callings has its own applicable skills.

1. In Singh v Commissioner for Fair Trading [2023] NSWCATOD 123, Senior Member Mobbs stated at paragraph [59]:

59 I accept that the Applicant undertook off site tasks for various construction projects after he had finished working on the site. However, the instrument focuses on demonstration of the Applicant's experience in work and the evidence needs to show that the Applicant had experience in undertaking the kind of work expected of the contractor: Price [at 70]. As the Applicant was not on site conducting works beyond the initial stages of the various projects, he cannot be said to have experience in undertaking the kind of on site work expected of the contractor in the later stages of building construction work.

1. In Kanaan v Commissioner for Fair Trading [2024] NSWCATOD 106 ("Kanaan"), Senior Member Andelman observed at paragraphs [36] - [42]:

36. The experience of project management work on a single project is not a demonstration of a "wide range of building construction work" as required by the Instrument, even though project management itself can be broad ranging. Mr Keenan was required to have contact with a wide range of tradespersons, architects, certifiers and other building construction workers. He was required to have discussions and negotiations with them including the co-ordination of the trades and the identification and rectification of defects.

37. Mr Keenan submitted that he did have experience in "carpentry, masonry, roofing, plumbing, joinery and plastering" however this experience was of project managing the sub-contractors that carried out this work rather than any knowledge or experience of undertaking any of these trades.

38. The respondent submitted that the issuance of a builder contracting licence represents to the public that a licence holder is qualified, experienced, and capable of contracting, doing and supervising such residential building work.

39. I agree with most of this submission. I do not agree that the issuance of a builder contracting licence represents to the public that a licence holder is capable themselves of constructing a residential building work or that the person has a qualification in a particular trade or trades. There was no dispute between the parties that there was no pre-requisite trade requirement for the issuance of an endorsed contractor licence.

40. It may be that project managing a diverse range of building construction works may amount to "relevant industry experience in a wide range of building construction work". I do not consider that an applicant must demonstrate experience in a particular trade as a pre-requisite to being issued with an endorsed contractor licence.

41. I do not consider that Mr Keenan has demonstrated that he has a wide breadth of experience. Mr Keenan's experience is confined to being involved in a single project managing a single building site. Project management work is an important category of building construction work, particularly in the construction of large residential units such as the Lidcombe project, however it is just one type of building construction experience.

42. I am not satisfied that Mr Keenan has established that he has relevant industry experience in a wide range of building construction works. ...

1. In the present matter, the Applicant's project management work is not limited to the extent considered in Kanaan.
2. In Yu v Commissioner for Fair Trading [2024] NSWCATOD 61 Senior Member Mobbs stated at paragraphs [73] - [76]:

73. Whilst a number of the roles and responsibilities referred to above suggest that the Applicant was possibly supervised in carrying out some rectification and construction work at the various Building Sites, the Applicant's primary roles and responsibilities were related to project management including design and site co-ordination. The Applicant stated that he was also involved in document control, which he stated was a very important part of building. In evidence, the Applicant said that a builder is not required to do all of the physical work on a project and that the supervision of a build is more important than banging a nail into a wall. He stated that he had completed his degree in 2017 and his Certificate IV in 2021 and that his role was to add value to a project and to ensure that it was delivered on time and within budget. The Applicant stated that he was not here to punch nails and that to gain his licence he needed two years of supervision but was not required to do physical work.

74. The Instrument refers to Experience in a "wide range of building construction work". As the HBA allows the holder of a contractor licence in general building to contract with the public, it is clear that the licence holder is required to have the skills to negotiate a contract, quote for a project and co-ordinate the trades to complete a project on time and within budget. However, this is not all that is required of a licence holder and I agree with the Tribunal's comments in Price, that the Instrument focuses on demonstration of the Applicant's experience in work and that the evidence needs to show that the Applicant has had experience in undertaking the kind of work expected of the contractor and that displaying an understanding of the relevant principles is not the same as having the relevant experience in carrying out the work.

75. Whilst I accept that the criteria of "a wide range of building construction work" does not require that an applicant should have constructed a house from start to finish: Vitogiannis v Commissioner for Fair Trading, Department of Customer Service [2020] NSWCATOD 157 at [45], it is clear that a breadth of experience is required, including experience in undertaking the kind of work expected of the contractor. A building contractor has overall responsibility for a site and must be able to supervise all of the trades required to complete any type of dwelling and to determine that all trades have complied with all standards and requirements.

76. Whilst I accept that the Applicant has obtained the necessary qualifications and states that he understands the principles relating to general building work, there is no evidence that he has previously held any type of licence or certificate and it is not clear if he has ever carried out any physical trade or building work on any commercial or residential project. His evidence suggested that he had perhaps not even banged "a nail into a wall" as he said that that the supervision of a build was much more important and that his role was to add value to a project and to ensure that it was delivered on time and within budget. Even if I was to draw an inference that the Applicant has some practical building or trades experience, I am unable to be satisfied that such experience is in a wide range of building construction.

1. The Applicant appeared at the hearing, gave evidence and was cross-examined. His evidence was that he was an employee of Australex between January 2016 and August 2023. He held various roles at Australex, including project engineer and contract administrator; project manager; senior project manager; and general manager. He asserts that in those roles he developed experience and exposure to the construction industry.
2. He provided documentation in support of his evidence that he held the position as senior project manager. This material includes emails and promotional materials. He also gave evidence that he attended significant site and project meetings as the lone or senior representative of Australex.
3. His evidence is that matters for which he was responsible included monitoring, observing and maintaining subcontractor performance, maintaining workflow and programming, ensuring compliance in the relevant legislation, maintaining pricing and budgets, overseeing contract administrators, demolition and earth works. He took overall responsibility for a site and to supervise trades required to complete the work.
4. In a Statutory Declaration dated 12 August 2024, the Applicant stated that he was currently employed as Senior Project Manager at Ultra Building Corp. The experience on which he relies was obtained during his employment with Australex. In regard to this experience he stated:

During my employment with Australex, I had gained a variety of experience in the construction industry which included, but was not limited to:

a. Monitoring, observing and maintaining subcontractor performance, quality assurance and user compliance and reliability;

d. Ensuring compliance under relevant legislation and codes for both safety and quality of works;

e. Controlled and maintained outgoings for pricing;

g. Preparing and updating financial spreadsheets to present to clients;

h. Update building reports for on-site and office, as well as providing to clients monthly;

i. Overseeing contract administrators and document controls for drawings and consultants;

j. Conducting site inspections for Defects and oversight of workmanship;

k. Coordinating Stakeholders including communications with architects, engineers, clients, and authorities to keep the project on track and quickly resolve any issues that may arise on site;

I. Managing site safety, conducting inspections, and enforcing safety protocols

m. Preparing construction methodology and resolving on-site issues and conflicts to keep project on track.

Further to the above, I would regularly be involved with the following works on an everyday basis:

a. Applying building codes and standards to the construction process in accordance with the Build;

b. Dealing effectively with Sub-contractors, consumers and other parties

c. Reading and interpreting plans and specifications;

d. Planning building or construction projects and work;

e. Organising site surveys and set-out procedures to building and construction projects;

f. Applying structural principals to residential constructions;

g. Conducting on-site supervision of building and construction projects;

h. Applying legal requirements to building and construction projects; and

i. Managing occupational health and safety in a building and construction workplace.

1. With respect to his relationship with Mr Mearbany, the Applicant stated:

During my time at Australex I had a relationship with Mahmoud Mearbany (Mahmoud), which extended beyond a professional relationship.

I considered Mahmoud to be a friend outside of work.

This is evident by reason of Mahmoud providing the reference for my building licence, the subject of these proceedings.

Regrettably, Mahmoud has recanted from his position of providing a reference for my application for a building certificate.

This is contrary to what I understood to be an amicable relationship.

1. The Applicant does not dispute that he has not performed any trade work. His involvement has been as a supervisor of the trades. He also undertook administrative tasks including organisation of contractors and ensuring that resources were available for the work. He provided a series of photographs that he had taken which show various stages of works that he had supervised.
2. With respect to the referee statement, the Applicant's evidence is that he met Mr Mearbany at the Ampol service station at Strathfield on 3 October 2023. The meeting occurred at that location at Mr Mearbany's request. Mr Mearbany is said to have asked the Applicant to meet and to bring along documentation in respect of the administration of the company. The Applicant agreed that he had filled in the form and completed the information contained in the referee statement but maintained that Mr Mearbany signed the document.

1. Mr Knight was previously employed as a construction manager at Australex between 2016 and 2023. He provided a statement in relation to his association with the Applicant. He stated:

Most of the projects that I worked on at Australex were with Muhammad Rohail lyaz (Rohail).

Rohail would work as the project manager on the jobs I worked on, which meant I would have constant dealings with Rohail.

Some of the tasks that Rohail would attend to included:

Monitoring, observing and maintaining subcontractor performance, quality

b. Ensuring compliance under relevant legislation for both safety and quality of works;

c. Controlled and maintained outgoings for pricing;

e. Preparing and updating financial spreadsheets to present to clients;

f. Update building reports for on-site and office, as well as providing to clients monthly; and

g. Oversaw contract administrators and document controls for drawings and consultants.

Given my close involvement with the project managers, I was aware that the project managers, especially Rohail, were involved in all aspects of the project lifecycle, from procurement to completion.

During my time working with Rohail, he demonstrated his ability to effectively manage projects through all stages from procurement to completion, and always demonstrated an understanding of the industry and practise which assisted in the successful delivery of projects that I worked alongside with Rohail.

1. In his evidence before the Tribunal, Mr Knight stated that he had been responsible for the supervision of projects and trades. He was responsible for the build. His evidence was that the Applicant was put in the role of Project Manager at different times but that he was not involved in the conversations. He would work with the Applicant with respect to workflow on larger projects.
2. He agreed that the Applicant's role was administration. He had not undertaken trade work. Mr Knight stated that he, not the Applicant, had been responsible for management of trades and sub-contractors. His role overlapped with the Applicant's role in ensuring that the work had been done in accordance with the claims submitted.

1. It is submitted that the Applicant has the experience that he has claimed and satisfies the requisite experience contemplated by the statutory regime. It is submitted that the Applicant did not forge the referee statement and that it is genuine.
2. With respect to the issue of whether the work that the Applicant claims to have completed is not sufficiently broad as to meet the wide range of building work requirement. It is submitted that:
   • there is nothing limiting the Tribunal's consideration of what exactly the criteria of "a wide range of building construction work means in the context of an applicant's past work experience;
   • it is not a requirement that an applicant should have constructed a house from start to finish. Nor is it a requirement that an applicant has experience in all aspects of building work, provided that the experience is sufficiently wide;
   • a builder has the overall responsibility for a site and must be able to supervise all of the trade required to complete any type of dwelling;
   • a builder must be able to determine that all trades have complied with all standards and requirements;
   • a building contractor is able to contract with the public, and must therefore be able to negotiate a contract, quote for a project, and co-ordinate the trades to be able to compete the project on time and within budget;
   • he or she must also be able to negotiate and discuss the jobs with council and private certifiers to ensure that the work is passed fit when appropriate;
   • the evidence needs to show that the Applicant has had experience in undertaking the kind of work expected of the contract;
   • displaying an understanding of the relevant principles is not the same as having the relevant experience in carrying out the work.
3. While the Applicant worked as a project manager, he gained significant and varied building experience. He also worked in other roles, such as a project engineer and general manager. The combined experience of the Applicant is such that the Tribunal should find that he satisfies the experience requirement.
4. Further, it is submitted that the Tribunal should conclude that Mr Mearbany did sign the referee statement; and it was truthful at the time that it was signed.
5. In the circumstances, the correct and preferrable decision is to issue the licence.

1. The Respondent relies on the evidence of Mr Mearbany, Managing Director of Australex, in respect of the Applicant's role within Australex generally and the Miranda and Neutral Bay projects. Mr Mearbany appeared at the hearing, gave evidence and was cross-examined.
2. He could not recall meeting the Applicant at the Ampol service station at Strathfield on about 3 October 2023, but he denied ever asking the Applicant to bring him materials related to the company's liquidation.
3. Mr Mearbany denied that he had met the Applicant or provided a referee statement for the Applicant. He denied that the signature on the referee statement was his signature. His evidence was that the Applicant did not have experience that would support the grant of the licence that he is seeking. He said that he would never sign a referee statement for the Applicant as the Applicant had no practical onsite building experience.
4. Mr Mearbany denied that he had ever supervised the Applicant or that he had ever promoted the Applicant to the position of Senior Project Manager with Australex. He did not dispute that the Applicant sometimes attended site meetings, but he did so only when the subject matter concerned his role. Also, he did not dispute that the Applicant sometimes used the title General Manager, and he was not concerned about it. However, he stated that the Applicant had assigned the title to himself. He agreed with Mr Knight's statement that the Applicant was involved with a project for the length of the job, but he said that the Applicant's role was limited. He did not undertake any trade work.
5. He stated that the Applicant's involvement on the Miranda site and the Neutral Bay site work was limited to administrative tasks. The Applicant's role was to be a bridge between the company and the site. He was in charge of payments, claims etc. The Applicant would attend sites and take photos so that claims could be assessed.
6. Mr Mearbany said that the Applicant had not worked on the Miranda site. He said that Mr Knight was the construction manager for the site and that he was also there to supervise. Mr Mearbany said that the Applicant might have been involved in an application to council, but he had not undertaken any building work or supervise any trades on the site.
7. Mr Mearbany said that Mr Knight was also the construction manager for the Neutral Bay site. He denied that the Applicant had undertaken any building work or supervise any trades on the site. It was not the Applicant's role.

1. The Respondent contends that it is apparent that there was no meeting between the Applicant and Mr Mearbany at the Ampol service station at Strathfield and that Mr Mearbany did not sign the referee statement. Mr Mearbany denies that the signature on the referee statement is his signature. The Applicant was unable to provide clear and objective evidence that Mr Mearbany signed it.
2. Further Mr Mearbany gave unchallenged evidence that he would never sign a referee statement for the Applicant as the Applicant had no practical onsite building experience, and he had never supervised the Applicant.
3. It is also submitted that the Applicant never supervised trades on site at Miranda or Neutral Bay and that he has no practical experience in a wide range of building construction work over a period of two years as required by the Instrument.
4. The Respondent submits that the Applicant has overstated his experience as follows:

(1) The Applicant did not observe and maintain subcontractor performance onsite, quality assurance and user compliance and reliability. This was the job of the Construction Manager. Once contracted the Applicant would inform Mr Knight of the scope of their work.

(2) Co-ordinating delivery of materials.

(3) Maintaining workflow and programming works. This was the job of the Construction Manager and Site Manager, not the Applicant.

(4) Ensuring compliance under relevant legislation and codes for both safety and quality of work. This was performed by the Site Manager and not the Applicant.

(5) Controlled and maintaining outgoings for pricing. Mr Mearbany would do all the negotiating with respect to pricing as General Manager of Australex and once negotiated would pass information on to the Applicant.

(6) Maintaining and monitoring budgets. The Applicant was only monitoring expenses.

(7) Preparing and updating financial spreadsheets to present to clients. The Applicant would do monthly Project Control Group updates on milestones achieved, subcontractor payments and escalations.

(8) Update building reports for on-site and office, as well as providing to clients monthly.

(9) Overseeing contract administrators and document controls for drawings and consultants. A Design Manager was employed to do that.

(10) Conducting site inspections for defects and oversight of workmanship. The Applicant, in conjunction with Mr Knight, did prepare a defects list which was given to the site team to action. The oversight of workmanship was the job of the Construction Manager and the Site Manager.

(11) Coordinating Stakeholders including communications with Architects, engineers, clients and authorities to keep the project on tract and quickly resolve any issues that may arise on site. This was done by Mr Mearbany, Construction Manager, Project Manager and the Site Manager.

(12) Managing site safety, conducting inspections and enforcing protocols. The Applicant did not do this. This was done by Mr Mearbany, Construction Manager, Project Manager and the Site Manager.

(13) Preparing construction methodology and resolving on-site issues and conflicts. The Applicant was not on site and did none of this. This work was done by Mr Mearbany and the Construction Manager.

1. Further, the Applicant was never supervised by Mr Mearbany or Mr Knight at either the Miranda site or the Neutral Bay site s because he did no on-site work.
2. The Applicant only attended the sites to do walk throughs to take photographs of work done to assess monthly claims submitted by subcontractors and to update on the progress of targets being met for the monthly Project Control Meeting. The photographs were also used to cost variations demanded by clients.
3. If the contractors work was not done properly both Mr Knight and the Applicant would draw up a defects list and provide it to the site team so they could have the sub-contractors fix the defects.
4. The Respondent submits that the taking of photographs and walk throughs are not a wide range of building construction work.
5. The Respondent submits that the Applicant has not done any residential building work; he has not done any trade work; and he has not been supervised in doing residential building work on site at either Miranda or Neutral Bay.
6. In the circumstances, the Applicant has no experience in carrying out the work expected of a contractor in general building work and as such does not have two years relevant industry experience in a wide range of building construction work. For these reasons, the decision to refuse the contractor licence for the category of general building work is the correct and preferable decision.

1. As noted, the Respondent determined that the Applicant did not satisfy the legislative requirement of attaining two years' relevant industry experience in a wide range of building construction work.
2. In my view, it is not necessary to determine whether the referee statement is genuine. That is the case because I am not satisfied that the Applicant has sufficient relevant experience to satisfy the requirements of the Instrument.
3. The Applicant relies on the referee statement as showing that he has relevant industry experience. However, the experience is limited to project management work.
4. In my view, the authorities referred to above suggest that in order to establish that an applicant has relevant industry experience in a wide range of building construction work, the Applicant must show that he has more than project management experience. The Tribunal is required to have regard to the nature and type of construction work undertaken by the applicant.
5. I agree with the view expressed in Price v Commissioner for Fair Trading that both a practical and theoretical experience and understanding is required. The evidence needs to show that the Applicant has had experience in undertaking the kind of work expected of the contractor. The Appeal Panel in Lovich v Commissioner for Fair Trading accepted that building contractors "must have relevant experience that included not only the exercise of basic construction skills, but the relevant administrative skills required in the construction industry".
6. Mr Mearbany's evidence is that the Applicant had performed some work which could possibly be categorised as project management, but that his role was primarily administrative. The Applicant does not claim to have undertaken any trade work. The work that he has identified in his Statutory Declaration dated 12 August 2024 is limited to experience obtained during his employment as a Project Manager with Australex.
7. In my view, in order to satisfy the requirements of the Instrument the Applicant must show that he has relevant experience that includes the exercise of basic construction skills. Without that experience, the application must fail. Project Management experience is not sufficient.
8. In regard to the referee statement, the evidence is clear that Mr Mearbany does not stand by the document. Even if the referee statement is genuine, Mr Mearbany's evidence before the Tribunal was that the information contained in the referee statement is not accurate. The inference can be drawn that the referee statement has been withdrawn either in part or as a whole.
9. Without the referee statement, there is insufficient evidence before the Tribunal to allow a view to be formed as to the extent of the project management experience which could be considered for the purpose of showing relevant industry experience. The project management experience must be supervised as provided for by the Instrument. Neither Mr Mearbany nor Mr Knight has indicated that they have supervised the work. As noted above, an applicant cannot verify their own work.
10. In the circumstances, I agree with the Respondent.
11. I am not satisfied that the Applicant has two years relevant industry experience in a wide range of building construction work. It follows that the decision to refuse the application is the correct and preferable decision. It should be affirmed.

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.