Khademi v Secretary, Department of Customer Service [2025] NSWCATOD 80

The Instrument clearly requires a referee to have supervised and directed the applicant in doing the work detailed in the onsite building experience forms. However, neither the Instrument nor the HBA specifies that the referee or the applicant's employer must also have been the principal contractor in respect of the sites where the experience was gained.

Mr Khademi has not assuredly demonstrated he has at least two years' relevant industry experience in a wide range of building construction work and therefore does not satisfy the requirements of sections 33D(1)(b)(i) and 33D(1)(b) of the HBA for an endorsed contractor licence in the category of general building work at this time.

Having regard to the information provided in the original decision and internal review submission, I determine the decision is correct in concluding that Mr Khademi has not demonstrated at this time that he has had experience of such a kind and for such a period as the Secretary considers would enable him to do, or to supervise, the work for which the endorsed contractor licence is required. ...

Therefore, I conclude refusal in accordance with sections 33D(1)(a) and 33D(1)(b) of the HBA is incorrect and the application must instead be refused in accordance with section 20(1)(a2).for the issue of a contractor licence in the category of general building work.

1. The Applicant was not satisfied with the outcome of the internal review and lodged an application with the Tribunal for external review of the Respondent's decision.

1. The issue for determination is whether the correct and preferable decision is to grant the application. This requires consideration of whether the Applicant has the requisite experience contemplated by the Instrument.

1. The Applicant held a contractor licence in the category of carpentry between March 2016 and July 2022. That licence was cancelled, and he was disqualified from being the holder of any contractor licence for a period of six months.
2. In May 2016, the Applicant made an application for an individual contractor licence in the category of general building. That application was refused on the basis that the Applicant had not demonstrated the requisite 24 months practical experience.
3. In November 2018, the Applicant made a second application for an individual contractor licence in the category of general building. The Respondent sought further information in relation to the second application and undertook Referee Checks. One of the purported referees indicated that the referee statement for the asserted employment was fraudulent, that he had not signed it (or been approached by the Applicant about it), requested his own copy for investigation and asking for the matter to be investigated as fraud. The purported referee also confirmed that the Applicant had never worked for him.
4. The Respondent refused the second application on the grounds that the Applicant was unable to establish the requisite two years' experience and the Applicant's fitness and propriety to hold a licence.
5. In April 2023, the Applicant made a third application for a contractor licence in the category of general building. He claimed to have been an employee of AUM Construction Pty Ltd from February 2014 and claimed that the type of work performed was "supervisor assistant." He expressed remorse for his previous conduct, and indicated that he was young and vulnerable, that he was fully dependent on the instructions of his father and that his conduct had been at the direction of his father.
6. The Applicant provided a referee statement from Mr Ebrahim Hossein Noori who purported to verify that the Applicant was an employee of AUM Construction Pty Ltd and his supervision of the Applicant over the claimed work performed.
7. The Respondent identified a number of discrepancies in the information that the Applicant had provided and sought further information.
8. In September 2023, the Applicant informed the Respondent that he proposed to withdraw his Application as he was unable to establish the requisite two years' experience.
9. In June 2024, the Applicant made a fourth application for an individual contractor licence in the category of general building. That application is the subject of these proceedings.

1. 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) ("the NCAT Act").
2. The Tribunal stands in the shoes of the Respondent and has the same powers as the Respondent for the purposes of this review.
3. 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) of the HBA relevantly provides that the Secretary must refuse an application for a contractor licence if not satisfied as to the matters specified in sections 33B and 33C of the HBA.
2. Section 33C(1)(b)(i) of the HBA provides that the Secretary cannot issue a contractor licence equivalent to a supervisor certificate unless satisfied the requirements in section 33D of the HBA are met.
3. Section 33D(1) provides:

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. pursuant to section 20(2) of the Act, the qualifications and experience or additional standards or other requirements required to be held or met by the applicant for an endorsed contractor license; and

2. pursuant to section 25(2) of the Act, the qualifications and experience, or additional standards or other requirements, required to be held or met by an applicant for a qualified supervisor or tradesperson certificate to be as follows:

(a) where the application is received by the Secretary on or after the date on which this Instrument is signed ("the Commencement Date"):

(i) the possession of qualifications or the passing of examinations specified in Column 1 of Table A to Schedule 1; and

(ii) the possession of experience specified in Column 2 of Table A opposite the relevant matter in Column 1;...

1. Table A prescribes qualifications and experience that an applicant must hold or meet. The necessary experience is stated to be:

At least two years' relevant industry Experience in a wide range of building construction work, where the majority of that Experience was obtained within 10 years of the date on which the application is made;

"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; or

(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. Section 20(5) of the HBA provides that a decision of the Secretary relating to the specification of qualifications and experience, or additional standards or other requirements under section 20(2) cannot be reviewed by this Tribunal in an application for an administrative review.
2. In Commissioner for Fair Trading, NSW Department of Customer Service v Kalkan [2022] NSWCATAP 112 the Appeal Panel stated at paragraph [34]:

The Instrument is a "notice published in the Gazette", which specifies "qualifications and experience ... required to be held or met by an applicant for a contractor licence". It follows that if the Tribunal was required to apply the version of the Home Building Act in force from 5 July 2021, ss 20(2) and 20(3) in combination would require the Tribunal to refuse to grant a contractor licence to Mr Kalkan because he did not meet the experience requirement stipulated by the Instrument.

1. The Tribunal has given effect to the requirements of the Instrument in various cases. In Meharg -v- Director-General, Department of Fair Trading [2000] NSWADT 39, the Tribunal observed at paragraph [24]:

24 The regulatory scheme is based on the notion that those persons who attain licences have the particular skills and qualifications which the licence represents. The public is entitled to have faith in the regulatory scheme and for this reason it is important that applicants for particular licences where the requirements are clear, understand that those are the requirements that must be met. ...

1. In Briggs v Commissioner for Fair Trading Department of Finance, Services and Innovation [2018] NSWCATOD 175, Senior Member Scahill stated:

[107] The Second Reading Speech to the HBA set out that the main objectives of the HBA are "to promote and protect the interests of owners and purchasers of dwellings and to set standards for competence within the industry".

1. In Thukral v Commissioner for Fair Trading [2006] NSWADT 356 Judicial Member Molony noted that the HBA focuses on consumer protection:

6 The Home Building Act 1989 is essentially a consumer protection Act which regulates residential building work in NSW. It provides for the licensing and regulation of those engaging in residential building work, and makes provision as to their competence, fitness and solvency, and for their discipline. ... By issuing contractor licences and certificates the Commissioner represents to members of the public that the contractor meets the fitness, competency and solvency requirements of the Act and is authorised to do the work specified in his or her licence.

1. The requirement for referees to provide evidence about the work that an applicant had undertaken, and the standard of that work, ensures that those who are licensed meet the fitness, competency and solvency requirements of the HBA. This is consistent with the purposes of the HBA.

1. The Applicant provided a statement annexing a bundle of documents related to a project on which he worked. He also provided statements from Mr Ebrahim Hossein Noori, the director of Prime View Group Pty Ltd and Mr Amin Khademi, the director of AUM Construction Pty Ltd. Mr Noori attended the hearing and was cross-examined. The Applicant also attended the hearing, gave evidence and made oral submissions.
2. The Respondent provided a bundle of material filed under section 58 of the ADR Act, as well as written and oral submissions.

1. The Applicant's evidence is that he has worked in the building and construction industry for over 11 years, gaining experience in constructing residential homes. He gained site supervision skills under the direct supervision of Mr Noori. The Applicant's father, Mr Amin Khademi, is a builder. The Applicant's evidence is that he gained experience under his father's building business.
2. The Applicant relies on a contract between Ebrahim Hossein Noori - Prime View Group Pty Ltd ("Prime") and Amin Khademi - AUM Construction Pty Ltd ("AUM Construction") for the construction of 2 x separate duplex in Blenheim Place Glenfield NSW ("the Glenfield site"). The contract appears to be signed by Mr Noori as contractor and Mr Amin Khademi as sub-contractor.
3. The Applicant's evidence is that he gained 7 months experience on the Glenfield site. He stated that this experience was with a family run business and this arrangement assisted him to gain the relevant industry knowledge, skills and experience to become a licence builder.
4. The Applicant also provided a series of photographs which he contends demonstrate the work being undertaken on the Glenfield site. He also provided a number of documents that appear to be invoices addressed to AUM Construction Pty Ltd and related to the items delivered to that site. The Applicant contends these documents are further evidence of the work being carried out at the site.
5. The Applicant agreed that he had typed both his father's statutory declaration and Mr Noori's statutory declaration. He read the statutory declarations to each of them who then signed them. He agreed that his father's statutory declaration indicates that he is a builder, but the Applicant acknowledged that his father is not a licensed builder. He stated that he has worked in his father's construction business for a while. The business mostly constructs residential building with some commercial building work.
6. With respect to the Glenfield site, he said that there were 5 - 6 people working on the site at times, plus various trades. He agreed that Mr Noori would spend about 20 minutes with him each day. He was able to learn from Mr Noori, from the information on the plans, and from experience obtained on the job.

1. Mr Amin Khademi provided a statutory declaration in which he stated:
   • he is the director of AUM Construction.
   • AUM Construction has an agreement with Prime to work together for the construction of residential dwellings.
   • The Applicant has been working for both AUM Construction and Prime. He was primarily renumerated by AUM Construction.
   • The Applicant carried out site supervision works, and Mr Amin Khademi validate the Applicant's skills and experience to manage a building project from start to finish.
   • The Applicant worked for AUM Construction and Prime on a full-time basis.
2. The referee statement does not provide any further details of the work undertaken by the Applicant at the Glenfield site. However, an unsigned document dated 28 February 2023 on the letterhead of AUM Construction and addressed "To whom it may concern" states:

I am writing this letter to inform that Omid Khademi is working with me as a supervisor assistant handling following roles and responsibilities.

· Scheduled the project in logical steps and budget time required to meet deadlines.

· Excavation work for all plumbing works before concrete is poured.

· Erect sub - floor brickwork, dwarf walls and piers.

· determine what termite treatment is required to protect structural members.

· Before concrete slab is done - ensure the formwork and steel fixing. Is completed.

· Installation of the floor frames by the carpenter.

· Installation of wall frames, roof trusses, windows and external door frames by the carpenter.

· Installation of roof and guttering by the plumber.

· Completion of roof depending on what materials are used.

· Completion of all brick works for external and structural works according to specifications.

· All electrical wiring completed by the electrician.

· Carpenter then finally completes all fit outs and joinery works for internal doors, bath, shower, kitchen cupboards etc.

· If tiling is required, the tiler lays the wall and floor tiles in nominated areas.

· Painter completes all painting works either internal and external areas.

· Final touches are then completed by the plumber and electrician.

· External landscaping is the final stage of the lock - up stage.

1. Mr Amin Khademi was not called to give evidence in the Tribunal.

1. Mr Noori provided a statutory declaration in which he stated:
   • He is the director of Prime.
   • Prime has an agreement with AUM Construction to work together for the construction of residential dwellings.
   • The Applicant has been working for both AUM Construction and Prime. He was primarily renumerated by AUM Construction.
   • The Applicant has gained over two years' experience in a wide range of building work under the supervision and care of both companies.
   • Mr Noori is the Nominated Supervisor for both Prime and AUM Construction Pty Ltd.
   • The Applicant worked for AUM Construction and Prime on a full-time basis.
   • Mr Noori believes the Applicant is a competent builder to be granted a contractor licence.
2. A referee statement signed by Mr Noori on 13 March 2023 stated that the Applicant had worked at the Glenfield site as "supervisor assistant" from 7 July 2021 to 16 June 2022.
3. Mr Noori attended the hearing and was cross-examined. He stated that the Glenfield site was his own house. He had lived there for 20 years. It is dual occupancy. He has known the Applicant's father for 25 years and he asked him for help with the project.
4. Mr Noori said that someone else typed his statutory declaration. He said that he told the Applicant to type it up and that he would sign it.
5. In relation to the Glenfield site, Mr Noori said that he contracted out the job because he was too busy to undertake it himself. At the time he was working all over Sydney, mostly at Ryde. He got a quote for the work from AUM Construction and accepted it. He agreed that he would not enter a sub-contracting arrangement with someone who was not a licenced builder. However, he agreed that he paid AUM Construction a weekly fee of $1,200 for managing the work and supervision. He said that he undertook some of the work himself including plumbing and landscaping and that the Applicant's father and the Applicant did the rest. He agreed that the Applicant was paid by AUM Construction.
6. In relation to the supervisory role on the Glenfield site, he said that he would start at 7 am and go to the site. He would check on what had been done, check materials and give instructions. He would explain what was needed, and why it was needed, and then go to other sites. He would visit 7 - 8 sites per day.
7. He stated that he would spend about 20 minutes with the Applicant each morning. He would sometimes attend in the afternoon and at times he would also speak with the Applicant by phone. He stated that in those 20 minutes he was able to explain the basics to the Applicant and that the rest of the job involves gaining experience. He understood that the Applicant's father was teaching the Applicant. He said that he has known the Applicant's father for a long time, and he also agreed that he showed a lot of faith in the Applicant.
8. He said that the Applicant was undertaking the work on the site, along with 4 - 5 others. The Applicant was supervising the other workers.

1. The Respondent relies on bundles of material filed pursuant to section 58 of the ADR Act. This material comprises over 800 pages of documents relating to the various applications lodged by the Applicant. The Respondent also relies on both oral and written submissions.
2. The Respondent accepts that the Applicant has the necessary formal qualifications and some relevant experience as required by the Instrument. However, the Respondent contends that the experience gained at the Glenfield site cannot be accepted and without that experience the Applicant does not satisfy the experience requirements set out in the Instrument.
3. As noted above, the contract between Ebrahim Hossein Noori - Prime View Group Pty Ltd and Amin Khademi - AUM Construction Pty Ltd is in relation to the Glenfield site. The Respondent contends that the contract is not a building contract, but a subcontractor contract.
4. Clause 2 of the contract provides:

The Contractor hereby agrees to engage the Sub-Contractor to provide the Contractor with the following services (the "Services"):

All General Building Work for Residential Building ...

Site Supervision of construction site under a licenced Builder

2(a) The Services will also include any other tasks which the Parties may agree on. The Sub-Contractor hereby agrees to provide such Services to the Contractor in line with his contractor licence.

20. Except as otherwise provided in this Contract, the Sub-Contractor will have full control over working time, methods, and decision making in relation to provision of the Services in accordance with the Contract. The Sub-Contractor will work autonomously and not at the direction of the Contractor. However, the Sub-Contractor will be responsive to the reasonable needs and concerns of the Contractor.

1. The Respondent submits that under the contract the sub-contractor, Mr Amin Khademi, would have full control over the site. It is not in dispute that Mr Amin Khademi does not hold and has never held a contractor licence in the category of general building.
2. As noted, Mr Noori signed a referee statement and declaration claiming that he supervised the Applicant's work in relation to the Glenfield site. The Respondent submits that the totality of the evidence shows that the Applicant was supervised by his father and not by Mr Noori. Therefore, the Respondent contends that Mr Noori's declaration is untrue.
3. The Respondent submits that the Tribunal should exclude the claimed Glenfield site experience. In the circumstances, the Tribunal should find that without the of 7 months experience claimed in relation to the Glenfield site, the Applicant has failed to establish the requisite 24 months experience and the Respondent's refusal of the Application should be affirmed.
4. The Respondent further submits that if the Tribunal finds differently on that issue, the evidence clearly establishes that any experience that the Applicant has in the building and construction industry was obtained as a comparative lowly paid "labourer". That being the case, the Tribunal should find that the Applicant has not demonstrated that the experience that he does have is in a wide range of building construction work as is required by the Instrument. The Tribunal should refuse the application on that basis.
5. If, however, the Tribunal disagrees, it should still not grant the licence without fully exploring and satisfying itself that the Applicant is a fit and proper person to be granted a licence. In this regard, the Respondent points to the Applicant's conduct in relation to the earlier applications. The Respondent contends that the Applicant created false documentation to claim experience in respect of an application for the same licence that he is seeking through this application. The Respondent submits that the Applicant's prior conduct was both serious and entirely deliberate. The Tribunal should refuse the application on that basis.

1. I agree with the Respondent that the Applicant's experience at the Glenfield site should not be taken into account in determining whether the Applicant satisfies the experience requirements of the Instrument.
2. The evidence suggests that when the Applicant was working at the Glenfield site he was working as an employee of AUM Construction Pty Ltd. The evidence also suggests that AUM Construction Pty Ltd is not a licensed contractor authorised to perform residential building work.
3. I do not accept the evidence that Mr Noori supervised the Applicant's work on that site. In my view it is implausible that Mr Noori could have provided the necessarily level of supervision in the limited time that he spent on the site each day.
4. In my view, the contract between Ebrahim Hossein Noori - Prime View Group Pty Ltd and Amin Khademi - AUM Construction Pty Ltd sets out the true arrangement in relation to the work at the Glenfield site. Mr Noori was the contractor and Mr Amin Khademi was the sub-contractor.
5. As provided for by clause 20 of the contract, Mr Amin Khademi as the sub-contractor was to have full control over the site. In my view, it is probable that either Mr Amin Khademi supervised the Applicant's work on that site, or, in the alternative, the Applicant's work was not supervised at all.
6. It is not in dispute that Mr Amin Khademi does not hold and has never held a contractor licence in the category of general building.
7. As noted above, the Applicant must establish that he has gained two years relevant experience. Further, that the experience must have been supervised by an appropriately authorised person who directed the doing of the work. Mr Amin Khademi is not authorised to supervise the Applicant's experience or to direct the doing of the work.
8. In contrast, Mr Noori is an appropriately authorised person who could have supervised the Applicant's work on the Glenfield site. However, I am not satisfied that he did so.
9. Therefore, I am not satisfied that the Applicant's work on the Glenfield site can be taken into account for the purposes of satisfying the requirements of the Instrument.
10. In the circumstances, it is not necessary that I consider the other issues that the Respondent has raised.
11. If the Applicant's experience at the Glenfield site is excluded from consideration, the Applicant has failed to establish the requisite 24 months experience. It follows that the Applicant's application for a contractor licence in "general building work" under the HBA must fail.
12. The correct and preferable decision is to refuse to grant the application. Therefore, the Respondent's decision 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.