Lexi Development Australia Pty Ltd v Commissioner for Fair Trading

Jurisdictional issues for determination

1. The Commissioner submitted that the Tribunal does not have jurisdiction to review the cancellation decision and therefore the stay application as well as the substantive administrative review application should be dismissed. Lexi Development on the other hand submitted that the Tribunal does have jurisdiction to review the cancellation decision made on 19 April 2024 under s 22(1)(h) of the Home Building Act.
2. Lexi Development also submitted that the Tribunal has jurisdiction to review a decision made by the Commissioner not to approve the alteration of its contractor licence to allow Mr Burch to be the nominated qualified supervisor for the company based upon the Nominated Qualified Supervisor Form submitted by Lexi Development on 29 April 2024 (the submissions referred to the form being submitted on 19 April 2024 but this appears to be an error as there is no record in the material before me that the form, although dated 19 April 2024, was submitted on that date).
3. Lexi Development made a further submission that the Tribunal has jurisdiction to review a decision which it states has been made by the Commissioner not to restore the company's contractor licence under s 43(2) of the Home Building Act.
4. Before proceeding I note that the application for administrative review makes clear that the decision sought to be reviewed is the decision of 19 April 2024. No mention is made of any decision made by the Commissioner concerning the alteration of the contractor licence held by Lexi Development with regards to its nominated supervisor. The application does refer to s 43(2) of the Home Building Act in the context of stating that Lexi Development had rectified any issue/concern raised by the Commissioner prior to the cancellation taking effect and that, in these circumstances, the Commissioner should have retrospectively restored the licence pursuant to s 43(2).
5. In effect, the applicant in its submissions sought review of three decisions: the decision of 19 April 2024 to cancel the licence, a decision not to approve an amendment to the licence and a decision not to restore the licence under s 43(2) of the Home Building Act. The application for review, apart from the cancellation decision, does not clearly articulate that the applicant is seeking review of the amendment and restoration decisions. The Tribunal has power to amend an application under s 53 of the Civil and Administrative Tribunal Act 2013 (NCAT Act). In order to deal with all three bases raised by Lexi Development the application is amended accordingly to seek review of the three "decisions".

Administrative review jurisdiction generally

1. The Tribunal has jurisdiction to conduct an administrative review of a broad range of decisions made by administrators. That jurisdiction is conferred on the Tribunal by the Administrative Decisions Review Act 1997 (ADR Act) (see s 30 of the NCAT Act). Section 55 of the ADR Act makes plain that the Tribunal only has jurisdiction to review "an administratively reviewable decision". An administratively reviewable decision is defined in s 7 of the ADR Act to be "a decision of an administrator over which the Tribunal has administrative review jurisdiction". Section 9 provides that the Tribunal has administrative review jurisdiction over a decision of an administrator "if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision". It is therefore necessary to firstly identify the decision sought to be reviewed and then identify a provision in enabling legislation which states that a decision of an administrator of the kind sought to be reviewed is a decision about which an application can be made to the Tribunal.

Is the decision made under s 22(1)(h) of the Home Building Act reviewable?

1. The first decision which Lexi Development sought to be reviewed is the decision made under s 22(1)(h) of the Home Building Act to cancel the licence. Section 83B of the Home Building Act sets out the circumstances in which a person may seek administrative review of decisions of the Secretary. Section 83B(1) of the Act states: "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."
2. Of particular relevance is s 83B(2) which provides: "The holder of an authority aggrieved by any decision of the Secretary to alter an authority or to cancel a provisional authority may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision."
3. An authority includes a contractor licence (s 83A).
4. The Tribunal also has administrative review jurisdiction over decisions made by the Secretary under Part 4 of the Home Building Act concerning the taking of disciplinary action against a licence holder, including the cancellation of a licence (s 83B(3)). I note, however, that the decision to cancel was not made in the exercise of the Secretary's disciplinary powers under s 62 of the Home Building Act. Rather, as set out above, the decision was made under s 22(1)(h).
5. Whether the Tribunal has administrative review jurisdiction in relation to the cancellation decision therefore depends on s 83B(1) and (2) of the Home Building Act. The position of both parties appears to be that s 83B(2) is not relevant in the current circumstances. Section 83B(2) refers to two circumstances in which administrative review by the Tribunal is available to the holder of an authority. These are firstly a decision to alter an authority and secondly a decision to cancel a provisional authority. Lexi Development's licence was not a provisional licence so that portion of s 83B(2) is not relevant. I have previously made a decision in Opperman v Commissioner for Fair Trading (unreported 8 May 2024) in which I held that the term "alter" does not include cancel and that, if it was intended that a holder of an authority could seek administrative review of a decision to cancel an authority the Home Building Act would have said so as it plainly has in relation to a provisional licence. In my view the Tribunal does not have administrative review jurisdiction where an authority (apart from a provisional authority) is cancelled otherwise than as part of disciplinary action taken against the licence holder. This view is supported by the decisions in Commissioner for Fair Trading v Awadallah [2006] NSWADTAP 31, MJB Contracting Pty Ltd v Commissioner for Fair Trading, New South Wales Office for Fair Trading [2008] NSWADT 97 and Hamdan v Commissioner for Fair Trading [2015] NSWCATOD 114.
6. The only relevant provision in s 83B is therefore s 83B(1) relating to the "issue, alteration, renewal or restoration of an authority". Lexi Development argues that s 22(1)(h) must be read in conjunction with s 83B(1). The company notes that other paragraphs in s 22(1) refer to matters which could only occur after a licence had been issued, for example, a licence holder which is a corporation has become the subject of a winding up order under the Corporations Act 2001 (s22(1)(d)), or the holder of the licence fails to maintain certain insurances (s 22(1)(g)). The company submits that the words that "the Secretary would be required to refuse an application for a contractor licence by the person" in s 22(1)(h) mean that, through non-compliance with another provision or requirement of the Home Building Act, the licence would be required to, and therefore has, been refused. This, the company submits, brings the matter within s 83B(1) as it relates to an application for the issue of a licence.
7. The Commissioner argues that s 83B(1) has no relevance in the current circumstances as Lexi Development is not an applicant for a licence. The Commissioner states that Lexi Development is the holder of a licence and not an applicant and, as such, the only relevant provision in the current circumstances is s 83B(2).
8. Both parties referred to the decision of the Appeal Panel of the Administrative Decisions Tribunal in Awadallah cited above. In that matter the Appeal Panel dealt with a decision to cancel Mr Awadallah's supervisor certificate under s 43(1)(b) of the Home Building Act. Section 43B provides: 43 Cancellation because of fraud etc (1) The Director-General may, by serving on the holder of the authority a written notice setting out the reason for the cancellation, cancel an authority if - (a) the authority was issued, renewed or restored because of a misrepresentation (whether fraudulent or not), or (b) the authority was issued, renewed or restored in error (whether as a result of such a misrepresentation or not). (2) The Director-General may, by a further notice served on the holder of an authority cancelled under this section, retrospectively restore the authority if the Secretary is satisfied - (a) that the error concerned has been rectified, and (b) that the holder acted in good faith.
9. I note that the section now refers to the Secretary rather than the Director-General, but is otherwise identical.
10. The Appeal Panel set aside a decision of the Tribunal in which the Tribunal had held that the decision to cancel an authority under s 43(1)(b) was also a decision that relates to the application for that authority and is therefore a decision which comes within s 83B(1). The Appeal Panel held at [52] that the holder of an authority that has been cancelled under s 43(1) should not be deemed to be also, for the purposes of s 83B(1), an "applicant for the issue" of the relevant licence.
11. Lexi Development submits that the conclusions drawn by the Appeal Panel in Awadallah in relation to the interplay between s 43(1) and s 83B(1) are not determinative in relation to the interplay between s 22(1)(h) and s 83B(1). The company states that the decision in Awadallah was strictly in respect of cancellation of an authority under s 43(1). It also states that the decision in Commissioner for Fair Trading v Cruz [2009] NSWADTAP 51 at [25] - [27] confirms this position.
12. That the Appeal Panel addressed its reasoning in Awadallah to the particular provisions of s 43(1) is not surprising, as that was the issue before Appeal Panel. Nothing more than that can be drawn from the Appeal Panel's references to that section. That does not mean that the Appeal Panel's reasoning in respect of s 43(1) may not have resonance to similar arguments made in respect of other sections in the Home Building Act. That also is not surprising as the Appeal Panel was applying well known principles of statutory construction which are of general application. Indeed, the paragraphs in Cruz (which dealt with whether the term "penalty" in s 83B(3)(a) concerning reviews of disciplinary decision taken under Part 4 of the Home Building Act includes a "reprimand"), referred to by Lexi Development relate to those very principles applied by the Appeal Panel in Awadallah. That is made clear in [43] of the decision in Cruz where the Appeal Panel in that case said: 43 In our view, the approach adopted by the Appeal Panel (Chesterman DP) in Awadallah is applicable also to this case. The approach to be adopted is essentially a literal one with the meaning to be derived from the context in which the expression under notice appears. It is not possible, as we see it, to discern any alternative, broader purposive basis for approaching the question under notice in this case.
13. Nevertheless, Lexi Development submits that the decision in Awadallah can be distinguished from the present case. This is because the words "the Secretary would be required to refuse an application for a contractor licence by the person" are not used in s 43. It is submitted that these words read in conjunction with s 83B(1) which provides that an "applicant for the issue…of an authority aggrieved by any decision of the Secretary relating to the application may apply to the Tribunal" for review (emphasis added).
14. Lexi Development states that it is an applicant for the issue of an authority within the meaning of s 83B(1) having applied for the contractor licence. The decision to cancel, being a decision made under s 22(1)(h), is also a decision to refuse the licence, given the wording of s 22(1)(h). Lexi Development submits that the fact that the refusal of its application for a licence has been effected after it was previously approved does not preclude the company being able to rely upon the jurisdiction of the Tribunal under s 83B(1). Hence, it is argued, the use of the words "any decision of the Secretary relating to the application" necessarily means that a decision of the Secretary to cancel the licence and refuse the application at a later date falls within the Tribunal's jurisdiction under s 83B(1).
15. Furthermore, it is submitted that the use of the words "any decision of the Secretary relating to the application" must be viewed in light of the deliberate wording in s 22(1)(h) which provides that "the Secretary would be required to refuse an application for a contractor licence by the person". Thus, the decision of the Secretary made in relation to the licence was, in effect, a refusal of the application for a licence.
16. The primary difficulty with the submissions made by Lexi Development is that they require a convoluted interpretation of the legislation which runs counter to the text and which is not in conformity with relevant authority. As was said in Cruz of the approach to the construction of provisions of the Home Building Act followed in Awadallah, it is a literal one with the meaning to be derived from the context in which the relevant expression appears.
17. The conclusions drawn by the Appeal Panel in Awadallah are, in my opinion, of direct relevance to the facts of this matter even though cancellation of the licence was under a different provision of the Home Building Act. As was accepted in Awadallah, cancellation of an authority does not operate retrospectively. An authority remains valid from the date of issue until cancellation and the validity of the decision to issue the authority, a decision made pursuant to an application by a person who at that time was an applicant, is not affected (see [53]). This was the case even though the decision to issue the licence to Mr Awadallah was made in error (and therefore cancelled under s 43(1)(b) of the Home Building Act).
18. Importantly, the Appeal Panel stated that a distinction is made in the Home Building Act between and "applicant" for a licence and a "holder" of a licence (at [53] -[55]). Once an application for a licence by an "applicant" is approved and a licence issued, the person becomes a "holder" of the licence. Awadallah makes clear that it is not possible for the holder of an authority to be an applicant for that authority at the same time. There is a clear distinction between persons whose applications are under consideration and those whose status as an applicant has been superseded by their status as a holder of an authority (Awadallah at [55]). I agree with the statement made at [54] that the relevant provisions of the Home Building Act manifest a practice of designating the relevant person by reference to the status that he or she held immediately before the relevant decision was made. The Appeal Panel found no basis for treating a person who was a "holder" of an authority up to the moment of cancellation as also being (or becoming) an "applicant" even if the decision to cancel can properly be regarded as a decision relating to the application.
19. In my view the wording used in s 22(1)(h) does not affect this conclusion. Lexi Development makes much of the fact that the other paragraphs in s 22(1) refer to circumstances which have occurred after the issue of the authority, while s 22(1)(h) refers to "an application for a contractor licence". I agree that paragraphs (a), (b) and (d) to (g) (paragraph (c) having been repealed), refer to specific circumstances occurring after the issue of the authority. Paragraph (h) is more general in nature. It does not refer to specific occurrences which can lead to cancellation but provides a more general basis which can be described as non-compliance with various requirements which, if there was an application for an authority on foot, that application must be refused by the Secretary (emphasis added). In some ways, paragraph (h) provides for a hypothetical situation: if, what is now known was known at the time of the application for the licence, the licence must have been refused. In this way, as Lexi Development submits, the decision to cancel is a decision "relating to an application", but this does not make the company an applicant for a licence.
20. There is also nothing in s 22(1)(h) or s 83B(1) which could lead to a conclusion that, by cancelling the licence the Commissioner is also refusing to issue the licence. Lexi Development was not an applicant for a licence at the time the cancellation decision was made and its original licence application was not retrospectively refused as it remained valid up to the time of its cancellation. Indeed, during the period after approval Lexi Development was a holder, not an applicant. The application for review made by Lexi Development cannot therefore be made under s 83B(1) of the Home Building
21. As no review rights are afforded Lexi Development under s 83B in relation to the decision made on 19 April 2024, the Tribunal has no jurisdiction to review the decision to cancel Lexi Development's licence under s 22(1)(h) of the Home Building Act. As the Tribunal lacks jurisdiction, it cannot determine the substantive application for review of the cancellation decision and there is no utility in granting a stay of the cancellation decision.

Is there a reviewable decision in relation to an application to alter an authority?

1. Lexi Development submits that the email sent by Ms Ghazala on 29 April 2024 attaching a new Nominated Qualified Supervisor Form was an application for the alteration of an authority. The company further submits that the response sent on 1 May 2024 by the officer dealing with the application that, as the licence had been cancelled, a new application would need to be made, was a decision to refuse to amend the licence and therefore reviewable under s 83B(1) of the Home Building Act. The Commissioner submits that there was no application to alter or amend and no decision was made by the Commissioner.
2. As at 29 April 2024 when Ms Ghazala sent the email the contractor licence held by Lexi Development had been cancelled but the company was permitted to undertake building work until the decision took effect on 19 May 2024. It is conceivable that Lexi Development could have sought to alter its licence during this period, although, as the licence had been cancelled, any alteration, if approved, could only have been effective up to 19 May 2024.
3. There are, however, several problems in treating the email sent by Ms Ghazala on 29 April 2024 as an application to alter the licence. The subject line of the email refers to the Notice of Cancellation. It does not refer to any request to alter or amend the licence and nor does the body of the email refer to any alteration. Indeed, the email itself is brief and its intent is unclear and contains no request or application. It simply attaches some documents and asks if any further action is required. Furthermore, the update on the nominated qualified supervisor form signed by Ms Ghazala on 19 April 2024 does not in fact provide details of a change in nominated qualified supervisor as Mr Burch remains the nominated qualified supervisor, albeit under a new contract.
4. It is therefore very difficult to ascertain the purpose behind the email and the attached documents, particularly in circumstances where the period which the company had been given to respond to the Notice of Intent to Cancel had passed and the Notice of Cancellation had been provided to the company. Indeed, the documents provided in the 29 April 2024 email appear to be a response to the Notice of Intent to Cancel issued on 19 March 2024 which invited Lexi Development to provide an appropriately employed nominated qualified supervisor. In her affidavit provided in these proceedings Ms Ghazala states: On 29 April 2024, I sent an email to NSW Fair Trading providing them with a new employment contract between Lexi Development and Mr Burch, as NSW Fair Trading's primary issue/concern appeared to be that Mr Burch was a Nominated Supervisor for more than one company. In that same email, I advised that Mr Burch had withdrawn his application to be the Nominated Supervisor for another company, Simply Pools, and so he was now the Nominated Supervisor for Lexi Development only and no other company or companies.
5. The statement in the affidavit demonstrates a misunderstanding of the basis for the cancellation which concerned Mr Burch's employment status with Lexi Development as a temporary employee and not the dual nomination with Simply Pools. The statement also tends to support a view that her email was a belated response to the Notice of Intent to Cancel. I draw no firm conclusion in that respect, however, as Ms Ghazala was not called to give evidence about the email or any other matter.
6. In any event, by the time the email was received the licence had been cancelled. The email reply sent by the Commissioner on 1 May 2024 was therefore factually correct in that the licence had been cancelled and a new application would need to be made. It is clear from the email that the Commissioner did not regard the email of 29 April 2024 as an application to alter the cancelled licence. I also do not consider that the email of 29 April 2024 can properly be regarded as an application to alter the licence.
7. I therefore find that there was no application to alter the licence made by Ms Ghazala and no decision was made in respect of such an application. There being no such decision there is no reviewable decision and the Tribunal lacks jurisdiction.

Is there a reviewable decision in relation to an application to restore the licence?

1. Lexi Development also states that a decision has been made to refuse its application to restore the licence. That application was contained in the letter sent by the company's solicitor to the Commissioner on 2 May 2024. The submissions by the solicitor also state that such an application was contained in the 29 April 2024 email from Ms Ghazala. The 2 May 2024 letter refers to the power of the Commissioner under s 43(2) of the Home Building Act to retrospectively restore a licence.
2. I accept that the 2 May 2024 letter may constitute a request or application by Lexi Development for the restoration of the licence. I do not consider that the email of 29 April 2024 is also such a request or application as, as set out above, the purpose of the email is very unclear. Indeed, my conclusions that the email was not an application to alter the licence are bolstered by the claim that the email also sought to do something else, namely restore the licence, even though the email does not specifically make such a request. This reinforces the fact that the email is very unclear and, in my view, does not constitute and application.
3. The request as set out in the 2 May 2024 letter is that the Commissioner use the power under s 43(2) to restore the licence. A decision to refuse to restore a licence under s 43(2) is a reviewable decision: Hamdan v Commissioner for Fair Trading [2015] NSWCATOD 114. Lexi Development seems to be arguing that, because there has been no response from the Commissioner to the request of 2 May 2024, there is a deemed decision under s 43(2) to refuse to restore the licence.
4. There are several problems for Lexi Development with these submissions. First, s 43(2) gives the Commissioner the ability to restore an authority that was cancelled under s 43(1) on the basis that (a) the authority was issued because of a misrepresentation or (b) the authority was issued in error. An authority cancelled under s 43(1) can be restored under s 43(2) where the Secretary is satisfied that the error has been rectified and the holder acted in good faith. Lexi Development makes the request for restoration on the basis that Mr Burch is now the sole nominated qualified supervisor for the company and thus the basis of the notice to cancel is no longer applicable. The company further states that the cancellation is based on an error or misapprehension which has been remedied in good faith. While I note that this submission misunderstands the basis upon which the licence was cancelled in that the cancellation was based on Mr Burch's status as a temporary employee, not the dual nomination, the problem is more fundamental as the decision to cancel the licence was not made under s 43(1) and the power under s 43(2) to restore the licence therefore does not arise.
5. Nevertheless, I have considered whether there are other ways in which a licence may be restored. Although not referred to by Lexi Development, the provisions of the Licensing and Registration (Uniform Procedures) Act 2002 are relevant. In this context s 19 of the Home Building Act provides:
6. Section 19 of the Home Building Act provides: 19 Application to contractor licences of Licensing and Registration (Uniform Procedures) Act 2002 (1) The Secretary may grant contractor licences for the purposes of this Act. (2) Part 2 of the Licensing and Registration (Uniform Procedures) Act 2002 (the applied Act) applies to and in respect of a contractor licence, subject to the modifications and limitations prescribed by or under this Act. (3) For the purpose of applying Part 2 of the applied Act to a contractor licence: (a) the licence may be amended under that Act, and (b) the references to 2 weeks, 4 weeks and 8 weeks in section 9 (1) (a), (b) and (c) of that Act are each to be read as references to 6 weeks, and (c) an application for restoration of a licence under section 10 of that Act may not be made more than 3 months after the date on which the licence expires, and (d) the reference to 14 days in section 24 (1) of that Act (as to the period within which changed particulars must be notified) is to be read as a reference to 7 days. (4) Subject to this section, the regulations may make provision for or with respect to such matters concerning a contractor licence as are relevant to the operation of Part 2 of the applied Act."
7. Section 10 of the Licensing and Registration (Uniform Procedures) Act provides: 10 Applications for restoration of licences (1) An application for the restoration of a licence may be made to the relevant licensing authority by the licensee at any time after the licence expires or is cancelled. (2) If in the case of a fixed-term licence the relevant licensing legislation provides for the issuing of licences for varying terms, the application must specify the term of licence sought by the applicant.
8. Section 39(1) of the Home Building Act sets out the time period within which an application for restoration of a licence must be made. This is the same period of 3 months as set out in s 19(3)(c) as set out above, although the time can be extended. Section 40 of the Home Building Act deals with the Secretary's powers in relation to the renewal or restoration of an authority. In essence, the section sets out the circumstances in which an application to renew or restore an authority may be refused. These include if "the authority is surrendered or cancelled before it is due to expire": s 40(2)(a). While the meaning of s 40(2)(a) is not entirely clear, it does appear to bestow upon the Secretary a discretionary power to refuse to restore an authority that has been cancelled and, by implication therefore, a discretionary power to restore an authority in those circumstances. However, s 39(3) of the Home Building Act provides that an authority "that has been surrendered or cancelled must not be restored".
9. It is a general principle of statutory interpretation that general provisions do not override specific ones: see, for example, Smith v The Queen (1994) 181 CLR 338; 69 ALJR 24; 125 ALR 385, Mason CJ, Dawson, Gaudron and McHugh JJ at 348 (CLR). The discussion by the Tribunal in Hamdan v Commissioner for Fair Trading [2016] NSWCATOD with respect to s 43(2) of the Home Building Act sets out a useful summary of the relevant principles concerning general and specific provisions within the context of the Home Building Act: at [58] - [61]. It is likely, in my view, that the correct position under the Home Building Act is that s 43(2) provides the only circumstance in which an authority that has been cancelled can be restored. If that is so, neither the Secretary nor the Tribunal have the power to restore a licence cancelled under s 22(1)(h) of the Home Building Act.
10. In any event, a significant problem for the company in seeking review of a decision to refuse to restore its licence is that the Commissioner has not made a decision on the request even if it could be said that such a decision can be made under s 43 or another provision of the Home Building Act in conjunction with the provisions of the Licensing and Registration (Uniform Procedures) Act, nor is there a deemed decision to refuse the request. Section 83B(4) provides that, for the purposes of s 83B, an application is taken to be refused if a notice of the decision on the application has not been served on the applicant within 40 days of its being lodged or such longer period as agreed. As at the date of the hearing before me, only some 15 days had passed since the letter was sent to the Commissioner on 2 May 2024.
11. There is therefore no decision made by the Commissioner, deemed or otherwise, which is capable of review by the Tribunal.

Conclusions

1. As the Tribunal lacks jurisdiction on the three bases put forward by Lexi Development, it cannot determine the substantive application for review. There is also therefore no utility in granting a stay of the decision to cancel the licence.

Orders 1. The request by Lexi Development Australia Pty Ltd to stay the decision made on 19 April 2024 to cancel the applicant's contractor licence is refused. 2. The substantive review application is dismissed because the Tribunal has no jurisdiction to deal with it.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 May 2024