Jit Builder Pty Limited v Secretary, Department of Customer Service [2025] NSWCATOD 161;

1. For the following reasons, I have found that the Reviewable Decision should be affirmed. That is because the Applicant has not demonstrated there are 'special circumstances' as required by s 33C(8) of the Act.
2. For the Applicant to succeed in his application, he must demonstrate that there are 'special circumstances' to satisfy s33(8)C(a), that is the Respondent must be "satisfied that special circumstances exist that will ensure that the individual, either alone or in conjunction with one or more other nominated supervisors, will supervise all work done under contracts for which each contractor licence is required" before the licence can be issued. If I am not satisfied that there are special circumstances, the issue of giving written permission (s33C(8)b)) is irrelevant.
3. The meaning of 'Special Circumstances' and requirement of obtaining permission for 'a nominated supervisor' have attracted little judicial or Tribunal consideration.
4. In Nassif v Commissioner of Fair Trading; Toplace Pty Ltd v Commissioner of Fair Trading (No 2) [2023] NSWCATOD 98 ("Nassif") at [52], Simon PM, as she then was, explained the purpose of those provisions:

Those provisions demonstrate that the regulatory scheme is concerned with ensuring that a suitably qualified nominated supervisor supervises residential building work. The fact that the nomination of an individual to be a nominated supervisor for more than one contractor licence requires the permission of the Secretary demonstrates that the legislation is concerned with ensuring that nominated supervisors have the capacity and are available to supervise residential home building works.

1. I am not aware of any other consideration by this Tribunal or any court about the operation of s 33C(8).
2. The term "special circumstances" has been considered in the context of other provisions of the Act. In Hammoudi v Commissioner for Fair Trading [2016] NSWCATOD 57 ("Hammoudi"), the Tribunal considered whether special circumstances existed in the context of s 32(1A) of the Act, which relates to the issue of an owner builder permit on a dual occupancy.
3. In Hammoudi, the applicants had been refused an owner builder permit to build their dream, retirement home as a dual occupancy, on a site where there was an existing cottage. In the long term it would be occupied by their son. The cottage was being rented at the time. There was evidence that the applicants could not afford to engage a builder, and would have to build the dwelling in stages. They had purchased the block and planned their new home in the expectation that their existing home would be used solely for business purposes. They argued that there was no commercial purpose for the proposed construction and that their circumstances were 'special circumstances." Senior Member Scahill said, at [64 - 66]:

64 There are no guidelines issued as to the definition of special circumstances in the HBA context. The Tribunal refers to a number of factors in interpreting the meaning of special circumstances:

• An understanding of the term "special circumstances" generally;

• the purposes of the Home Building Act 1989;

• the purposes of an owner-builder permit in the context of the HBA;

• the legislative purpose behind the amendment to the HBA in section 32(1A) against the issue of owner builder permits for dual occupancies;

• the scope of special circumstances as set out in the Minister's Second Reading Speech in May 2014; and

• the Applicant's claim for special circumstances in the context of the permit sought.

Meaning of special circumstances

65 A scan of case law shows that the concept of 'special circumstances" is known in the areas of criminal law, professional disciplinary matters in relation to costs, applications for security of costs and in the social security arena concerning beneficial exercise of a discretion.

66 In Topp's case, the AAT considered the meaning of the term "special circumstances" in relation to its use in section 1184K of the Social Security Act. Section 1184 allowed for the Secretary of the Department of Social Security to exercise a beneficial discretion "if it is appropriate to do so in the special circumstances of the case." Relying on a Full Federal Court decision in Beadle v Director General of Social Security [1984] AATA 176, the AAT considered that if something unfair, unintended or unjust had occurred which was out of the ordinary, (this Tribunal's bolding) this might constitute special circumstances justifying the exercise of the discretion - see Topp and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 99 paragraphs 21 and 38-40.

67 The AAT's analysis in Topp's case also indicates that the determination of the existence of "special circumstances" vested a broad discretion in the decision maker.

1. Similar considerations have been given to the same question in Oslear v Commissioner for Fair Trading [2022] NSWCATOD 110 ("Oslear") , where the Tribunal found and applied the same reasoning from McGufficke v Commissioner for Fair Trading [2022] NSWCATOD 84 ("McGufficke"). In McGufficke, I was considering a refusal of an owner builder permit with respect to a dual occupancy, where the applicant was a licenced builder who undertook sub-contract work only. There was an existing cottage on the property concerned which was rented out. He said he wanted to build a retirement home.
2. In considering the meaning "special circumstances ", I distinguished the facts in McGufficke from those in Hammoudi and found there was no objective similarity between the two. I also found that the Act was aimed at consumer protection.
3. I adopt and apply the same considerations as found in the above authorities when determining if there are special circumstances in this application.
4. The Applicant advanced the following matters which he asserts amount to special circumstances.
5. Firstly, Mr Zhang's qualifications to supervise home building work. While I accept there was some inconsistency in the amount of work Mr Zhang was involved in and completed, in my view his experience and qualifications are not relevant to the question of special circumstances. This is because s 33D of the Act provides the additional requirements for a supervisor certificate, which relevantly provides:

(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. I accept the Respondent's submissions and I find that s 33C(8) is concerned with the persons capacity to supervise as the nominated supervisor for more than one contractor licence, not the persons experience or qualifications. The Respondent does not dispute that Mr Zhang is qualified to be a nominated supervisor. However, this is not the issue to be determined and does not go to the question of whether 'special circumstances' have been established.
2. I find that the fact that Mr Zhang has previously worked on a number of projects or has certain qualifications does not establish that he has the capacity to be the nominated supervisor for multiple contractor licences. This is not a ground for special circumstances.
3. Secondly, the Applicant relies upon arrangements that it has made with NHY and with its director, a Mr Weihua Wu. In that regard, Mr Zhang said he will use a phone and WeChat to communicate with Mr Wu and help Mr Zhang supervise work, or be a back-up for emergencies. They will also use cameras as part of their supervision practices. He also in oral submissions said he can subcontract out all the small jobs.
4. I acknowledge and accept the Applicant's submissions that a supervisor does not need to be at the site continuously or all the time.
5. However, I am not satisfied that s 33C(8) contemplates that special circumstances might be established through cooperation with one or more other nominated supervisors. I am not satisfied that by engaging subcontractors to do small jobs, or using communication and relying upon another supervisor, amounts to special circumstances. It suggests the alternative that Mr Zhang may not have the capacity to do the work and will rely upon others to undertake the supervisory role. The degree of overall supervision expected of a nominated supervisor may be eroded by this practice. For these reasons alone, Mr Zhang's contention that this amounts to a special circumstance is rejected.
6. I also have concerns that the practice would be insufficient for reasons which include, but are not limited to the following.
7. It is unclear the amount of time Mr Zhang will effectively divide between his other work and the requirement to meet his obligations to NHY. There is no evidence that Mr Wu holds an authority to supervise building work. If Mr Zhang requires support or relies upon Mr Wu to carry out his supervisory role, I infer and find that he does not have the capacity to undertake the role himself. This weights against finding special circumstances.
8. Thirdly, Mr Zhang has in the past and could in the future undertake work as a sole trader. The fact that he is seeking to rely upon carrying out construction work as a nominated supervisor for his own company does not in itself amount to a special circumstances. While I have taken into considerations the benefits and liability advantages of undertaking building work as a company versus a sole trader, I am not satisfied that by carrying on business as a company is in itself a ground for finding there are special circumstances.
9. Fourthly, the Applicant asserts there are different policies which apply to his application. Regardless, the policies require the Respondent to consider each application on its merits. The Applicant also raises concerns about how his application and the internal review was processed by the Respondent. This review is not to consider the conduct of the Respondent, but rather, the correct and preferable decision and if there are special circumstances which require the granting of the contractor licence. The Applicant's contention in this regard do not amount to special circumstances.
10. There is no suggestion and I make no finding that Mr Zhang has not acted in good faith. There is also no suggestion that he is unqualified to be a supervisor. Mr Zhang presented in a professional manner. He engaged in the hearing process with respect and was polite and courteous. In making my findings and deciding to affirm the Reviewable Decision, I do so by applying the law. I pause to note that my decision should in no way be interpreted to suggest that Mr Zhang is not competent in his work in the construction industry, nor that his application was incompetent. It was not.
11. However, in considering all of the evidence, I find that there is nothing "unfair, unintended or unjust to have occurred which was out of the ordinary" that might constitute special circumstances. The application is framed more as one of convenience, rather than a case of there being special circumstances.
12. In the result, the Reviewable Decision is affirmed.

(1) The Respondent's decision made on 5 November 2024 is 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.