Khalil v Secretary, Department of Customer Service [2026] NSWCATOD 49;

1. The issue to be determined is whether the correct and preferable decision is to grant the Applicant's application for a qualified supervisor certificate under the Act. This requires consideration of whether the Applicant is required to show that he took all reasonable steps to avoid the liquidation and whether the Applicant is a fit and proper person to hold a qualified supervisor certificate.

1. Section 9 of the Administrative Decisions Review Act 1997 ("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.
2. The Tribunal has jurisdiction under section 83B(1) of the Act in relation to applications for review:

(1) 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. Therefore, the Tribunal's jurisdiction includes review of the decision by the Respondent in this matter.
2. Section 63 of the ADR Act provides that in determining an application, the Tribunal is to determine what is the "correct and preferable decision" having regard to the material before it. In reaching the correct and preferable decision, the Tribunal may:

(1) exercise all of the functions that are conferred or imposed by the Act on the Respondent; and

(2) affirm the decision, vary the decision, set aside the decision, and make a decision in substitution of the decision, or set aside the decision and remit the matter for reconsideration by the Respondent.

1. There is no formal onus of proof. In considering the Application, the Tribunal may have regard to any relevant material before it at the time of its review. Its consideration is not limited to material that was before the Respondent at the time it made the decision that is under review.
2. The Tribunal is to make its own decision and there is no presumption that the Respondent's decision is correct. The Tribunal should consider all relevant material and ignore all irrelevant material.
3. The requirements for proof of questions of fact in administrative review proceedings generally were summarised by an Appeal Panel in Meacham v Commissioner of Police [2020] NSWCATAP 107 at paragraphs [54] and [83]:

"[54] Despite not being bound by the rules of evidence, the Tribunal is required to base its findings of fact on "logically probative material", and not on "mere suspicion or speculation", as a corollary of its obligation to act reasonably: Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 44 FLR 41 ("Pochi") at 62, 68 (Deane J); [1980] FCA 85; Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 ("Sullivan") at [5]-[8], [15]-[17] (Logan J). It is an error of law for the Tribunal to make a finding of fact with no evidence, or no probative evidence, to support it.

[83] Proof of matters which are asserted is required in a practical sense, and a party asserting a fact is generally required to provide evidence to substantiate it. As noted above, the Tribunal is required to base its findings of fact on "logically probative material": Pochi at 62, 68; Sullivan at [5]-[8], [15]-[17]."

1. Also, as Principal Member Britton observed in BSR v Office of the Children's Guardian [2015] NSWCATAD 264 at paragraph [17]:

... 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 24 of the Act empowers the Respondent to grant two types of certificates to individuals: a) tradesperson certificates and b) supervisor certificates.
2. Section 25 sets out the mandatory grounds for refusing an application for a certificate. Section 25(1) of the Act provides:

(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.

33B General requirements for issue of certain authorities

(1) An authority (other than an owner-builder permit) must not be issued unless the Secretary is satisfied that-

(a) each relevant person in relation to the application for the authority-

(xv) except in relation to an application for a tradesperson certificate-is not at the time of the application a director of or a person concerned in the management of a Chapter 5 body corporate (other than Chapter 5 body corporate resulting from a members' voluntary winding up of the body corporate), and

(xvi) except in relation to an application for a tradesperson certificate-within 3 years before the date of the application, was not a director of or a person concerned in the management of a body corporate that was a Chapter 5 body corporate at any time within that 3-year period (other than Chapter 5 body corporate resulting from a members' voluntary winding up of the body corporate), and

(xvii) except in relation to an application for a tradesperson certificate-was not a director of or a person concerned in the management of a body corporate that became a Chapter 5 body corporate (other than Chapter 5 body corporate resulting from a members' voluntary winding up of the body corporate) at any time within 12 months after the person ceased to be a director of or a person concerned in the management of the body corporate and within 3 years before the date of the application ...

33D Additional requirements for obtaining supervisor and tradesperson certificates

(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.

1. As noted, the Applicant applied for a QSC in January 2025. The company was put into liquidation in March 2025. Accordingly, at the time of the QSC application the Applicant was not a director of, or a person concerned in the management of a Chapter 5 body corporate.
2. Section 18B of the Act implies statutory warranties into every residential building contract. These warranties are given by the holder of the contractor licence. Section 18B states:

(1) The following warranties by the holder of a contractor licence, or a person required to hold a contractor licence before entering into a contract, are implied in every contract to do residential building work -

(a) a warranty that the work will be done with due care and skill and in accordance with the plans and specifications set out in the contract,

(b) a warranty that all materials supplied by the holder or person will be good and suitable for the purpose for which they are used and that, unless otherwise stated in the contract, those materials will be new,

(c) a warranty that the work will be done in accordance with, and will comply with, this or any other law,

(d) a warranty that the work will be done with due diligence and within the time stipulated in the contract, or if no time is stipulated, within a reasonable time,

(e) a warranty that, if the work consists of the construction of a dwelling, the making of alterations or additions to a dwelling or the repairing, renovation, decoration or protective treatment of a dwelling, the work will result, to the extent of the work conducted, in a dwelling that is reasonably fit for occupation as a dwelling,

(f) a warranty that the work and any materials used in doing the work will be reasonably fit for the specified purpose or result, if the person for whom the work is done expressly makes known to the holder of the contractor licence or person required to hold a contractor licence, or another person with express or apparent authority to enter into or vary contractual arrangements on behalf of the holder or person, the particular purpose for which the work is required or the result that the owner desires the work to achieve, so as to show that the owner relies on the holder's or person's skill and judgment.

(2) The statutory warranties implied by this section are not limited to a contract to do residential building work for an owner of land and are also implied in a contract under which a person (the principal contractor) who has contracted to do residential building work contracts with another person (a subcontractor to the principal contractor) for the subcontractor to do the work (or any part of the work) for the principal contractor.

1. The Respondent contends that the Applicant is not a fit and proper person to hold a QSC under the Act. The expression 'fit and proper' has been considered by this Tribunal and in other jurisdictions in numerous cases.
2. In Hughes and Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127 at 156-7, the High Court said that fitness and propriety involve three things: honesty, knowledge and ability. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J at paragraph [40] said:

In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails.

1. It is generally accepted that what is fit and proper needs to be determined by reference to the activities in issue and is to be gauged in light of the nature and purpose of the activities that the person will undertake. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380; [1990] HCA 33; (1990) 94 ALR 11 at 65; [1990] HCA 33, Toohey and Gaudron JJ explained that:

The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, or whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive, but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.

1. A person's fitness and propriety for a particular role is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184 at paragraph [40].
2. In Poytress v Director General, NSW Fair Trading [2015] NSWCATOD 100, in the context of an application under the Act, I stated at paragraph [82]:

The issue of whether a person is fit and proper due to past conduct is a matter of judgement. In considering that issue the Tribunal is required to take into account the nature and seriousness of the original conduct, any events relevant to an assessment of the Applicant's fitness which have occurred since then, the candour with which the Applicant has approached the issue of past conduct, the Applicant's explanation of the conduct, the impact of the effluxion of time, and the Applicant's present circumstances and reputation.

1. The assessment of fitness and propriety must be viewed in light of:

(a) the activities in which the person is or will be engaged": Re Percival and Australian Securities Commission [1993] AATA 196; (1993) 30 ALD 280 at 290; and

(b) The role the person is to undertake: Taouk v Director General, NSW Fair Trading [2016] NSWCATOD 41 at paragraph [46].

1. In Trombetta v Commissioner for Fair Trading [2018] NSWCATOD 167, the Tribunal noted at paragraph [67], that:

... The licensing requirements of the Act are not imposed by way of punishment for those convicted of crimes. They are imposed for the protection of the public.

1. Public interest considerations may also play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65 at paragraph [37].

1. The Applicant provided several character references that attest to his honesty, integrity, professionalism, technical competence, community contribution, and cooperation during the company's liquidation. The Applicant gave evidence and was cross-examined. He provided both written and oral submissions.
2. The Respondent relies on material lodged pursuant to section 58 of the Act. The Respondent relies on the Liquidator's statutory report with respect to the trading position of the company since 2023, ATO tax liabilities and an outstanding NCAT consumer order. The Respondent's solicitor also provided written and oral submissions. The Respondent also relies on alleged inconsistencies in the Applicant's evidence.

1. The Applicant contends that the Tribunal should find that sections 33B(1)(a)(xv) and 33B(l)(a)(xvi) of the Act do not bar his application. He submits that the statutory provisions must be applied at the moment of that he made the application and cannot retroactively capture later events. It is not in dispute that the company's liquidation followed a Tribunal order in February 2025 and that it was after his application was lodged on 30 January 2025.
2. Nevertheless, he submits that if any statutory bar is triggered, discretion should be exercised in his favour. He submits that the liquidation was caused by external financial pressures, including a costly legal matter and unexpected tax liabilities. The legal matter commenced in about 2023 and extended over a long period. He finalised existing projects throughout 2024. He had received legal advice and was concerned that if he commenced new projects they might be affected if action was taken against his licence.
3. With respect to the legal proceedings, he noted that those proceedings related to a plumbing issue. He stated that the owner hired and paid the plumber. He did not hire the plumber, but he was engaged to oversee the work that was being done. He stated that he is not a plumber and has limited understanding of plumbing. He considered that his responsibility was to ensure that the plumber was onsite and doing the work. He stated that a builder cannot be responsible for all the trades working on a site. He claimed that the damage was not his responsibility.
4. He stated that the ATO debt concerns fringe benefits tax related to personal use of vehicles. He is negotiating with the ATO in relation to that debt and is on a payment plan.
5. He does not dispute the Tribunal order or the ATO debts. He stated that if he were able to work, he would have some prospects of paying those debts. However, until he knows where he stands in regard to his ability to earn income, he is unable to determine his capacity to pay.
6. He said that, with the exception of these matters, he has never had any issues with respect to payments. He has always been able to pay contractors and suppliers.
7. The Applicant submits that he acted prudently by seeking accounting advice when financial stress emerged, ceasing to take new contracts, completing existing projects, injecting personal funds, seeking family assistance, and only pursuing insolvency as a last resort. He relies on a number of references in support of this position.
8. With respect to the liquidator's suggestion that the company may have been trading while insolvent since at least 2023, the Applicant stated that the business had experienced difficulties since the COVID-19 impact. He had been borrowing funds and paying them back slowly. He was able to enter new contracts and no longer entered fixed price contracts. Once he was back on his feet, the legal matter started.
9. He asserts that he did not behave dishonestly and that consumer protection would not be served by refusing the application.
10. As noted, the Respondent contends that the Applicant is not a fit and proper person to hold a QSC under the Act. In answer to that contention the Applicant argues that the Tribunal should find that he is a fit and proper person to hold a QSC when consideration is given to his long-standing industry experience, strong character references, community work, and the absence of any findings of dishonesty, misconduct, or breaches of licensing obligations. In support of that contention, the Applicant relies on references from industry and other professionals, and community groups. He points to a number of references:
    • Adam Abdo of Vega Partners, the Applicant's accountants and registered tax agents, who confirms that the Applicant sought their advice prior to the company's liquidation. He has known the Applicant for over 15 years and have never had reason to doubt his honesty, integrity, or good character.
    • Richard Albarran of Hall Chadwick the company's liquidators who confirms that the Applicant fully cooperated during the liquidation process. He reported that there were no claims against the Applicant and that ASIC did not intend to investigate or ban him. He noted that the Applicant acted responsibly and professionally throughout.
    • Tom Zreika of Sterling Legal who has had a 20-year professional relationship with the Applicant. He describes the Applicant as honest, diligent, courteous, and responsible, and emphasised that financial pressures - not misconduct - led to the company's collapse.
    • Richard Wilkinson of Sydney Registered Surveyors who confirmed a 13-year working relationship with the Applicant, noting strong technical competence, leadership, professionalism, and ethical conduct. He also highlighted the Applicant's role in mentoring apprentices and students.
    • Nicole Chesworth, Team Leader with the MWLP work placement program who confirmed that the company had hosted 539 year 11 and 12 students since 2016, demonstrating a major contribution to youth development and vocational education. She highlighted the Applicant's commitment to training the next generation of tradespeople.
    • Sam Kayellou who has known the Applicant since 2002. He attests to the Applicant's technical expertise, strong communication skills, reliability, and significant community involvement, including mentoring apprentices.
    • Mohamed Charchouh, UMA General Manager/Director who emphasised the Applicant's 25 years of community involvement, his honesty and trustworthiness, and the significant voluntary building contributions he has made to community facilities.
    • Mohammed Harris, Head Coach with the Lakemba Sports Recreation Club who confirmed that the Applicant has volunteered for years as a coach and manager, describing him as reliable, trustworthy, and of good fame and character.
11. The Applicant relies on these references to demonstrate that he is a fit and proper person, with long-standing community ties, strong professional ethics, and a history of responsible conduct.
12. The Applicant submits that he satisfies the 'fit and proper person' requirement under section 25(1)(a) of the Act. He therefore submits that the correct and preferable decision is to grant the Qualified Supervisor Certificate.

1. The Respondent relies on the liquidator's statutory report and the administrative timeline. It has argued that the Tribunal must determine the correct and preferable decision at the time of its determination.
2. The Respondent submitted that the subsequent liquidation of the company is relevant to enliven the statutory bars. The Respondent argues that the Applicant did not take reasonable steps to avoid the liquidation and that he has not provided sufficient material to support his evidence of the measures he claims to have taken. The Respondent argues that no meaningful attempts were made to avoid the ATO debt and NCAT order liabilities.
3. Respondent relies on the Liquidator's report which estimates that the company had been trading whilst insolvent since at least 2023. The Respondent contends that the Tribunal should not exercise its discretion to grant the certificate because of the Applicant's financial mismanagement, the insolvency of the company, and the failure to satisfy the debts. The Respondent submits that these demonstrate ongoing risks to consumers.
4. Further, the Respondent asserts that the Applicant is not a fit and proper person to hold a QSC. In support of its position, it relies on the company's insolvency, the outstanding debts, the failure to satisfy the Tribunal orders, the Applicant's inadequate supervision of work, and his failure to provide consistent, transparent evidence.
5. The Respondent submits that the issues in this matter require the Tribunal to assess the application of sections 33B and 33D of the Act, the reasonableness of the Applicant's actions before insolvency, the scope of discretionary relief, and the Applicant's overall fitness and propriety in light of competing evidence. In the circumstances, the decision to refuse the Applicant's application for a Qualified Supervisor Certificate should be affirmed.

1. This is an application for the grant of a Qualified Supervisor Certificate under the Act. The Tribunal is required to determine whether the Applicant satisfies the statutory eligibility requirements and whether he is a fit and proper person to hold the certificate.
2. As noted, the Respondent contends that the provisions in sections 25(1)(a1)(xv) and (xvi) of the Act are applicable. I do not agree.
3. The evidence establishes that, at the date the application was lodged, the Applicant was not a director of, nor involved in the management of, a body corporate that was in external administration. At that time, the company was not in liquidation. Similarly, he had not been a director of, nor involved in the management of, a body corporate that was in external administration within the preceding ten years.
4. In my view, the disqualifying criteria in sections 25(1)(a1)(xv) and (xvi) were not engaged at the date the application was made. The clear words of the section cannot be displaced by the fact that the company was in liquidation subsequent to the application. The liquidation of the company occurred after the application had been made. On the proper construction of the Act, later events cannot be engaged retrospectively to disentitle the Applicant.
5. However, the Respondent has also raised the issue of the Applicant's fitness and propriety to hold a QSC. In my view, the timing of the application, in proximity to the later liquidation, has the potential to bear adversely upon the Applicant's fitness and propriety. In my view it is likely that the Applicant would have anticipated the possibility of an order against the company in the matter that was then before the Tribunal. If that were the case, it is plausible that it would have influenced the timing of the application.
6. However, no evidence has been presented to suggest that the application was dishonest, contrived, or made with knowledge that liquidation was inevitable.
7. In my view, of greater relevance is the Applicant's misunderstanding of his obligations under the Act. The question of an individual's fitness and propriety is not confined to questions of honesty. It encompasses knowledge, competence, and an adequate understanding of fundamental statutory obligations.
8. It was clear from his evidence that the Applicant did not accept that he was responsible for the work performed by the plumber engaged on the relevant project. In this regard, section 18B of the Act is relevant. In Macquarie Grove Homes Pty Ltd v Tony Aylott & Glen Aylott t/as T&G Bricklaying; Tony Aylott & Glen Aylott t/as T&G Bricklaying v Macquarie Grove Homes Pty Ltd [2016] NSWCATAP 142 at paragraph [44] the Appeal Panel accepted that the warranties in section 18B of the Act are implied into contracts between head contractors and sub-contractors.
9. Section 18B renders a licence holder responsible for the work of subcontractors, including licensed trade contractors engaged to carry out specialist work. The holder of the contractor licence remains responsible for the due performance of the residential building work, regardless of whether the work is carried out personally or by others.
10. In my view, a person who lacks such knowledge, or who disavows responsibility plainly imposed by statute, demonstrates a misunderstanding of obligations that go to the core of consumer protection under the Act. That misunderstanding raises serious concerns as to the Applicant's capacity to comply with regulatory requirements in the future.
11. I note that the Applicant has provided several character references that attest to his honesty, integrity, professionalism, technical competence, and community contribution. These references are impressive, but they do not address the issue that is of most concern to me in reaching my decision.
12. In my view, before the Applicant should be permitted to obtain the certificate that he is seeking, he must show that he "is possessed of a requisite knowledge of the duties and responsibilities evolving upon him" as a person to be entrusted with the sort of work which the QSC entails. Without that knowledge, the risk of further issues arising would be exacerbated if the certificate is granted.
13. It is a matter for the Applicant to determine whether he wants to obtain that knowledge and whether he wishes to reapply for the certificate in the future. However, at this time I am not satisfied that he is able to meet the requirements of section 25(1)(a) of the Act. It follows that the application for a Qualified Supervisor Certificate ("QSC") under the Act must be refused.
14. Accordingly, it is my view that the Respondent's decision to refuse the application is the correct and preferable decision. Therefore, 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.