Mack Electrical Pty Ltd v Secretary, Department of Customer Service

Cases Cited: Goodman v Commissioner for Fair Trading [2023] NSWCATAP 260
McDonald v Director-General of Social Security (1984) 1 FCR 354
Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10
New Energy Technology Solutions Pty Ltd (ACN 677931323) v Secretary, Department of Customer Service [2025] NSWCATOD 22
Poytress v Director General, NSW Fair Trading [2015] NSWCATOD 100
Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31
Veselinovic v Secretary, Department of Customer Service [2025] NSWCATOD 36

Category: Principal judgment

Parties: Mack Electrical Pty Ltd (Applicant)
Secretary, Department of Customer Service (Respondent)

Representation: Counsel:
J R Bennett (Applicant)
Solicitors:
CCS Legal (Applicant)
Department of Customer Service (Respondent)

File Number(s): 2025/00415172

Publication restriction: Nil

REASONS FOR DECISION

1. This is an application by Mack Electrical Pty Ltd (ACN 678 848 023) (the Applicant) for administrative review of the decision by the Secretary, Department of Customer Service (the Respondent) to refuse to issue it with a contractor licence in the category of electrical wiring under the Home Building Act 1989 (NSW) (the HBA).

Background

2. Mack Electrical Services Pty Ltd (ACN 613 699 791) (Deregistered) (MES) was registered on 16 July 2016. At all relevant times, Mr Barry John McEvoy (Mr McEvoy) was the sole director and sole shareholder of MES.

3. MES held a contractor licence in the category of electrical wiring issued under the HBA from 18 October 2016 until it expired on 4 June 2025.

4. The Applicant is a body corporate registered under the Corporations Act 2001 (Cth) (Corporations Act) on 4 July 2024. Mr McEvoy is the Applicant’s sole director and sole shareholder.

5. On 15 May 2025, Mr McEvoy, in his capacity as the director of the Applicant, applied for a contractor licence in the name of the Applicant in the category of electrical wiring (the Application).

6. On 19 May 2025, MES was placed into liquidation following a creditors’ voluntary winding up and a liquidator being appointed.

7. On 25 July 2025, the Respondent issued a notice under s 14(1) of the Licensing and Registration (Uniform Procedures) Act 2002 (NSW) (the Notice) seeking that the Applicant provide additional information about MES, including further information about the external administration and the reasons why the external administration was not disclosed in the Application. On 28 July 2025, the Applicant provided a response to the Notice.

8. On 11 August 2025, the liquidator for MES issued a Liquidator’s Report to Creditors (Liquidator’s Report).

9. On 29 August 2025, the Application was refused by the Respondent pursuant to s 20(1) of the HBA.

10. On 16 September 2025, the Applicant sought internal review of the original decision and on 1 October 2025, the decision of the Respondent to refuse the Application was affirmed (the Decision).

11. On 28 October 2025, the Applicant applied to this Tribunal for administrative review of the Decision (application for review).

12. MES was deregistered on 14 January 2026.

13. This matter was heard on 18 March 2026. No issues were raised by the parties in relation to the Tribunal’s jurisdiction in the application for review and I am satisfied that the Tribunal has jurisdiction in this matter.

Legislation

14. The HBA offers protection to consumers in New South Wales by providing for the licensing and regulation of those engaged in residential building work and specialist work. Section 3D of the HBA provides:

In its application to specialist work, this Act is not limited to specialist work that is residential building work and extends to specialist work that is not residential building work (for example, commercial and industrial specialist work).

15. Schedule 1 of the HBA defines “specialist work” to mean work and includes “electrical wiring work” whether or not done in connection with a dwelling. The “Note” to the definition indicates that specialist work can include work done in connection with commercial or industrial work.

16. Division 1 of Part 3 of the HBA regulates contractor licences. The Respondent is empowered to grant contractor licences pursuant to s 19 of the HBA, in accordance with Part 2 (other than s 10) of the Licensing and Registration (Uniform Procedures) Act. A contractor licence is defined in Schedule 1 as an “authority” under the HBA.

17. Section 20(1)(a1) of the HBA states that the Respondent must refuse an application for a contractor licence if not satisfied as to the matters of which the Respondent is required to be satisfied by s 33B. Section 20(1)(a2) of the HBA states that the Respondent must refuse an application for a contractor licence if, after considering evidence supplied by the applicant, is not satisfied as to the matters of which the Respondent is required to be satisfied by s 33C.

18. Unlike supervisor and tradesperson certificates (to which Division 2 applies), s 21 of the HBA, authorises the holder of a contractor licence to contract with the public to carry out certain residential building work, do any specialist work described in the licence, and to supply necessary building components.

19. Section 33B(1)(a)(xv) of the HBA relevantly provides:

(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

…

20. “Chapter 5 body corporate” is defined in the HBA to have the same meaning as in the Corporations Act, which defines “Chapter 5 body corporate” to include a body corporate that is being wound up or is under administration.

21. Section 33B(2)(c) of the HBA provides that for the purposes of section 33B, if the applicant is a corporation – every director of the applicant in relation to an application for an authority is a “relevant person”.

22. Section 33B(5) of the HBA states:

(5) Subsection (1)(a)(xv) does not prevent the issuing of an authority if, on the basis of information provided to the Secretary by each relevant person, the Secretary considers it is appropriate to issue the authority.

23. Section 33C(2) of the HBA relevantly provides:

33C Additional requirements for obtaining contractor licences

…

(2) Despite section 33B(1)(a)(xiii) and (xv), a contractor licence may be issued if—

(a) the licence does not authorise its holder to do general building work or swimming pool building, and

(b) the Secretary is of the opinion that there is no evident risk to the public that the applicant will be unable to complete contracts entered into in the future to do residential building work or specialist work, and

(c) the Secretary is of the opinion that the relevant person concerned took all reasonable steps to avoid the bankruptcy, liquidation or appointment of a controller or administrator, and

(d) the licence is subject to a condition that the holder must not enter into a contract to do work if the contract price exceeds $20,000 (inclusive of GST) or (if the contract price is not known) the reasonable cost of the labour and materials involved in the work exceeds $20,000 (inclusive of GST).

…

Applicant’s evidence

24. In addition to the material contained in the application for review and the material in the Respondent’s s 58 documents, the Applicant relied on the affidavit of Mr McEvoy dated 20 January 2026 (January 2026 affidavit) and the attachments in exhibit “BM-3” (collectively tendered as exhibit A1) together with an affidavit of Mr McEvoy dated 10 March 2026 (exhibit A2). A number of documents were included in both the Respondent’s s 58 documents and in the Applicant’s documentary evidence. At the hearing, the Applicant tendered three further documents, without objection, being a letter from Angle Auto Finance to Mr McEvoy dated 30 June 2025 (exhibit A3), a document from Specialist Equipment Leasing Finance Company Pty Ltd to Mr McEvoy of MES dated 16 June 2025 with an attached copy of a submitted payment (exhibit A4) and a letter from the Plenti Team addressed to “Barry” dated 2 July 2025 (exhibit A5).

25. Mr McEvoy gave oral evidence and was cross-examined by Ms Sierra Gordillo, the legal representative for the Respondent. I also asked Mr McEvoy a number of questions, and both parties were provided with opportunities to put further questions to him.

Respondent’s evidence

26. The Respondent relied on the s 58 documents (exhibit R1) and did not call any oral evidence.

Submissions

27. The Applicant relied on written submissions and written submissions in reply prepared by Mr Bennett of counsel. The Respondent relied on written submissions dated 17 February 2026. The legal representatives for both parties made oral submissions at the hearing.

28. Following the hearing, the parties were given the opportunity to provide the Tribunal with any relevant decisions in relation to s 33B(5) of the HBA and to make limited submissions in relation to those decisions. The parties were also given the opportunity to provide limited submissions on any potential conditions that could be imposed in the event that a contractor licence was to be granted to the Applicant. The Tribunal has had regard to the written submissions filed on 26 March 2026 by both parties.

Role of the Tribunal

29. Section 83B(1) of the HBA confers jurisdiction on the Tribunal for administrative review of the Respondent’s Decision pursuant to s 9 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act). Section 63 of the ADR Act provides that in determining an application for review, the Tribunal is to make the correct and preferable decision having regard to the material then before it, and any applicable written or unwritten law. The Tribunal makes its own decision in place of that of the Respondent and there is no presumption that the decision of the Respondent is correct: McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357. In doing so it may exercise all of the functions conferred or imposed by any relevant enactment. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[30], [34].

30. In an application for review, the Tribunal is not restricted to a consideration of the material that was before the decision maker but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31

Matters agreed to by the parties

Section 33B(1)(a)(xv)

31. In the Decision, the Respondent relied upon the provisions of s 33B(1)(a)(xv) of the HBA in relation to the refusal of the Application and the Respondent contended in written submissions and at the hearing that the circumstances of this matter fell within s 33B(1)(a)(xv) of the HBA.

32. Whilst the Applicant initially submitted that there were additional pathways in s 33B(1)(a) of the HBA that could apply in this matter and made submissions in relation to them, it was ultimately conceded in the Applicant’s oral submissions that s 33B(1)(a)(xv) is the appropriate provision in this matter. I am satisfied that this is the case and give no further consideration to the other subsections of s 33B(1)(a) referred to in the Applicant’s written submissions or the submissions relating to them.

Other matters

33. The Applicant’s initial written submissions also made reference to s 20(1)(a) of the HBA. In the written submissions for the Respondent, it was clarified that the Respondent had not raised this issue and that fitness and propriety did not form part of the basis of the Decision for the purpose of this application for review.

34. In the Applicant’s further written submissions, the Applicant did not cavil with this position. It was submitted however that the matters raised in the initial written submissions in relation to fitness and property would be relevant as a peripheral matter in considering the matters that the Respondent accepts are in issue, principally the risk that the Applicant will be unable to complete contracts. I am satisfied that the Respondent has not raised any issue in these proceedings in relation to s 20(1)(a) of the HBA and give no further consideration to this provision.

Provisions of s 33B(1)(a)(xv)

35. It was not in dispute between the parties that the provisions of s 33B(1)(a)(xv) of the HBA were made out on the evidence before the Tribunal.

36. Whilst the written submissions from the parties referred to “the relevant time of the application” for the purpose of s 33B(1)(a)(xv) of the HBA, the issue was not further raised during the hearing. In any event, I agree with the view expressed by the Tribunal on this issue in the decision of Veselinovic v Secretary, Department of Customer Service [2025] NSWCATOD 36 (Veselinovic*)* at [85] that:

…”at the time of the application” in s 33B(1)(a)(xv) refers to the time of the application process, which begins on the date the application is made and includes the period up to a decision being made in respect of that application.

Consideration

37. I am satisfied that s 33B(1)(a)(xv) of the HBA applies in this matter and that all elements have been made out. It follows that the contractor licence the subject of the Application must not be issued to the Applicant. I accept however, that despite this provision, a contractor licence may be issued to the Applicant if each of the factors in s 33C(2) can be satisfied or if the Tribunal considers it appropriate to do so pursuant so s 33B(5) of the HBA.

Issues for determination

38. The parties agreed that the requirements in s 33C(2)(a) of the HBA are made out as the contractor licence the subject of the Application does not authorise the Applicant to do general building work or swimming pool building work. The parties also agreed that the requirement in s 33C(2)(d) of the HBA would only be relevant if the other three requirements of s 33C(2) were met and that if the Tribunal exercised the discretion under that section, the condition set out in (d) would have to be imposed. I am satisfied in relation to both of these issues.

39. Accordingly, the issues for determination in relation to this application for review are as follows:

40. Whether there is no evident risk to the public that the Applicant will be unable to complete contracts entered into in the future to do specialist work: s 33C(2)(b) of the HBA; and

41. Whether Mr McEvoy, as the director of MES, took all reasonable steps to avoid the liquidation of MES: s 33C(2)(c) of the HBA.

42. Alternatively to Issues 1 and 2 , whether it is appropriate for the Tribunal to issue a contractor licence to the Applicant pursuant to the provisions of s 33B(5) of the HBA.

Issue 1 - No evident risk to the public- s 33C(2)(b) of the HBA

Applicant’s position

40. It was submitted on behalf of the Applicant that there is no evident risk that it will be unable to complete contracts entered into in the future and that consumers would be protected if the contractor licence was issued to the Applicant.

41. In support of this contention, the Applicant primarily relied on the following matters:

(i) The Applicant has a projected annual income of $1,430,000 and projected expenditure of $868,000, resulting in significant positive cash flow; (ii) Greenline Accounting Pty Limited (Greenline Accounting) has provided a favourable financial viability statement confirming the Applicant has capacity to complete contracts; (iii) The Applicant has implemented robust financial management practises to prevent a recurrence of the difficulties experienced by MES; (iv) Mr McEvoy has over 20 years of experience in the electrical industry and has consistently maintained his technical qualifications and supervisor licence. (v) The Applicant has received positive testimonials from customers including National Shopfitting Services.

42. The Applicant submitted that concerns regarding risk do not arise from the general quality of the work of Mr McEvoy or his associates; any outstanding applications or judgments, any other concern with Mr McEvoy’s business affairs other than those relating to the Decision and in particular there is no suggestion of any failure to complete works.

43. It was submitted that the relevant inquiry is whether there is an evident risk that the Applicant will be unable to complete future contracts, not whether the predecessor company experienced financial difficulties. It was said that the evidence before the Tribunal demonstrates the Applicant is financially viable and well positioned to meet its contractual obligations, and in any event, there is no material from any source to suggest it would not do so.

44. In response to the Respondent’s submission that “MES…was managed in a manner that created significant risks of being unable to complete future contracts”, the Applicant submitted that this “over-emphasises the contribution of the “manner” in which MES was “managed” without giving any weight or significance to the matters outside the management of the company that caused the liquidation of that company.” It was also submitted that the Applicant is a new company, with a different projection than the former.

45. In response to the Respondent’s further submission that “owing to the prior liquidation of MES with substantial estimated liabilities and allegation of insolvent trading*, the Tribunal would have serious concerns about Mr McEvoy’s personal financial circumstances*”, the Applicant submitted that the risk in the overall approach of the Respondent is that it may invert the statutory question from:

(a) Risk that contracts will be incomplete, to (b) Treating insolvency as the end itself rather than the indicator for risk of non-completion of contracts.

46. It was also submitted that it is “unfair” to place weight on the Liquidator’s preliminary view that the business of MES is transferred to the Applicant for no consideration, and the concern about “phoenixing”, because:

(a) The report is preliminary only; (b) Is ignorant of the $300,000 loan taken out specifically to purchase assets from the prior entity; (c) It therefore cannot be wholly viewed as “for no consideration”; (d) It ignores the fact that this legislative regime implicitly contemplates new entities operating after insolvency – the mere existence of a successor company is not the be all and end all, nor is it evidence of phoenixing, particularly where the main services of the company are personal services and there are little assets to transfer; (e) It misunderstands the nature of goodwill in this context.

47. It was also submitted that the insolvent trading claim has not been established; is not the subject of any proceeding; and that it is a speculative preliminary estimate by an unfunded liquidator, expressly described as such and cannot rationally constitute an evident risk. Even if the claim were pressed to judgment, it was submitted that Mr McEvoy is not without personal assets and has a family home of sufficient value to support a $300,0000 secured loan; a matter that simultaneously demonstrates his ongoing creditworthiness and his willingness to commit personal capital to the business.

48. During his oral submissions, counsel for the Applicant reinforced that the Liquidator’s Report was preliminary only and that there were a number of “curious” aspects to the report which suggest that it may not be the most reliable instrument, particularly in relation to what portion of the unsecured debt of MES referred to in that report could be attributed to a debt owed by MES to the Australian Taxation Office (ATO).

Respondent’s position

49. It was the Respondent’s position that the evidence established an evident risk to the public that the Applicant may be unable to complete contracts entered into in the future.

50. The Respondent submitted that MES, of which Mr McEvoy was the sole director, had been managed in a manner that created significant risks of not being able to complete future contracts. Whilst it was acknowledged by the Respondent that there are no reasonable number of consumer complaints against MES, it was submitted that the manner in which MES was managed by Mr McEvoy, together with its financial position, particularly the substantial estimated liabilities and the potential claim for insolvent trading, raise serious concerns about Mr McEvoy’s personal financial circumstances and indicates a potential risk to the public, that as the director of the Applicant, Mr McEvoy may be unable to complete future contractual obligations.

51. It was also submitted that if Mr McEvoy was to be subject to a significant personal liability that he is unable to meet, there is a real risk that this may negatively affect the Applicant’s financial position. It was said that this is directly relevant to the Applicant’s capacity to enter into future contracts in a reliable and sustainable manner and that it gives rise to a legitimate concern as to the protection of consumers and the public.

52. The Respondent acknowledged that the Liquidator’s findings are expressed on a preliminary basis but submitted that they raise serious concerns regarding Mr McEvoy’s conduct as a director and the manner in which MES was managed prior to external administration. With Mr McEvoy having been the sole director of MES and also the director of the Applicant, it was submitted that the unresolved concerns identified by the Liquidator remain directly relevant to the Respondent’s assessment and that it is appropriate for the Tribunal to have regard to these matters in considering whether the Applicant satisfies the relevant statutory requirements and whether the grant of a contractor licence would pose a risk to the public.

53. In oral submissions, it was submitted on behalf of the Respondent that in this matter it was not so much that MES had been placed into liquidation but the way in which Mr McEvoy, as the director of MES, had managed the company, and that since the liquidation, Mr McEvoy has not undertaken any further training.

54. Concerns were also raised about the Applicant and the strong connection between Mr McEvoy’s personal finances and the loan to the Applicant, resulting in the Applicant, having a $200,000 debt, even before trading. It was submitted that this affects the assessment of the risk in relation to completing the Applicant’s future contracts.

Consideration

55. I am satisfied that there are no reasonable number of consumer complaints against MES and no evidence that MES did not complete contracts. I accept however that in circumstances where MES has been placed into external administration, liquidated and subsequently deregistered, the manner in which it was managed by Mr McEvoy is relevant to the issue of whether the Tribunal can be satisfied that there is no evident risk to the public that the Applicant will be unable to complete contracts entered into in the future. This is particularly so where Mr McEvoy was the sole director of MES and is also the sole director of the Applicant. I also accept that in the circumstances of this matter that Mr McEvoy’s personal financial circumstances are also relevant.

Financial issues and liquidation of MES

56. The Applicant provided information and material to the Respondent in relation to the Application and internal review request and this material forms part of the Respondent’s s 58 documents (exhibit R1).

57. The s 58 documents include an Additional Details Form 5 relating to the external administration of MES completed by Mr McEvoy on 28 July 2025 and an accompanying letter from him, together with copies of tax returns and Activity Statements for MES. In his letter, Mr McEvoy said that at the time he completed the Application, MES was not yet in liquidation and this is why it was not noted. As previously referred to, the Application was dated 15 May 2025 and MES was placed into liquidation on 19 May 2025.

58. The documents also include a letter from Mr Afteem Fanous of Greenline Accounting dated 28 July 2025 in relation to the financial viability of the Applicant (Financial Viability Statement). Mr Afteem Fanous did not give oral evidence before the Tribunal.

59. The s 58 documents also contain material relating to MES that was produced by Mr Ozem Kassem, the liquidator appointed for MES on 19 May 2025 (the Liquidator). Included in this material is an ASIC Report on Company Activities and Property (ROCAP) and the Liquidator’s Report dated 11 August 2025.

60. The section 58 material also contained the request for internal review that was made by the Applicant’s then legal representative on 16 September 2025 and includes a statutory declaration from Mr McEvoy dated 16 September 2025 (with attachments) and a statement from Ms Erin McEvoy, the wife of Mr McEvoy, dated 14 September 2025. Also included is a reference from Mr Ben Taylor of National Shopfitting Services which is dated 15 September 2025 together with a letter from Mr Tim Fanous, Director of Greenline Accounting which is also dated 15 September 2025 and headed “Response to Contractor Licence Application Matters – [MES] *–[*Mr McEvoy].”

Applicant’s reasons for liquidation of MES

61. In the ROCAP, a number of questions in both Part A and Part B were required to be completed by the director of MES. The ROCAP includes signed declarations from Mr McEvoy dated 19 May 2025. Part B of the ROCAP indicates that MES commenced trading on 26 July 2016 and ceased trading on 8 May 2025. In section B14, the “Yes” box has been ticked indicating that the business had failed. The reasons given by Mr McEvoy were “Have just not been able to catch up after covid and having to go to court for a builder not paying & paying court costs”. It was said that the reasons became apparent in “12 2019”. In response to section B15, Mr McEvoy stated that the reason that MES ceased trading on 8 May 2025 was “company debt has become unmanageable”.

62. In the Additional Details Form 5 provided to the Respondent on 28 July 2025, Mr McEvoy indicated that he first became aware that MES was experiencing financial difficulties in December “2019 – 2020”. He said that at the end of 2019, “we” completed some new homes for a building company who refused to pay $62,000 in invoices for work completed and that the issue ended up in court and MES lost a lot more money in legal fees. He said they also lost a majority of work due to Covid. Mr McEvoy stated that he then shifted the focus of MES to commercial maintenance and fit out work to steady cashflow and obtain more reliable sources of income.

63. Mr McEvoy said however, that he could not seem to catch up with the existing tax debts and that in March 2025, he began to pay outstanding superannuation so as to seek a Small Business Restructure (SBR). He also said that he had begun to prepare his home to sell to pay the remaining tax debts and moved to new accountants as he did not feel that he was receiving the best advice and guidance.

64. In the accompanying letter from Mr McEvoy on the letterhead of “Mack Electrical”, he referred to his perseverance with MES and stated (sic), “I am now able to run a profitable business it is just that the legacy debt could not be managed and to move forward the company needed to be liquidated, please note that the main debt of the business was ATO related, and they were not really open to us making payment arrangements”.

Material from Liquidator

65. The Liquidator provided the Respondent with the Liquidator’s Report which relevantly noted the following:

(i) Based on preliminary investigations, the business of MES may have been transferred to the related entity, the Applicant, for no consideration. (ii) The realisable assets of MES were estimated at $24,000 and the estimated total liabilities at $679,874. The $24,00 was the result of the Applicant purchasing two vehicles from MES. (iii) The Liquidator’s preliminary view was that MES was likely insolvent as of 30 June 2021 and remained insolvent at all times to the date of the Liquidator’s appointment on 19 May 2025. (iv) Based on the estimated date of insolvency, the Liquidator calculated the potential claim for insolvent trading to amount to $545,479. (v) Mr McEvoy may have breached his duties/contravened the Act regarding the Corporations Act, including s 588G relating to insolvent trading; and ss 180 and 181 in relation to director’s duties. (vi) That on 19 May 2025, the date of liquidation, MES held three bank accounts, each with a nil balance; (vii) That the Liquidator had identified a loan to the Director totalling $569,590 which was asserted by Mr McEvoy to have been incorrectly recorded wages. The Liquidator stated that he was unfunded to conduct further investigations and/or recovery action in respect to the loan: (viii) Subsequent to MES being placed into liquidation, the ATO lodged a claim in respect of superannuation guarantee charges totalling $70,384. The Liquidator stated that Mr McEvoy had provided correspondence indicating that all of the MES employees and associated entitlements were transferred to the Applicant on 1 April 2025. (ix) MES had secured creditor claims totalling $142,959. It had unsecured creditor claims totalling $582,360, which consisted of trade creditors in the amount of $40,665 and statutory creditors in the amount of $541,695. (x) The ATO advised that there were further outstanding lodgements relating to MES which may result in additional claims; (xi) The Liquidator indicated that, based on the information available at the time of reporting, Mr McEvoy did not appear to have the financial capacity to satisfy the estimated claim for insolvent trading. (xii) MES’ management accounts record plant and equipment totalling $10,114 and that Mr McEvoy asserted that MES did not own any plant or equipment. (xiii) MES’ management accounts recorded goodwill totalling $80,745 which he considered attributable to the intellectual property of the Company including data base and company lists. The Liquidator issued a demand on Mr McEvoy/the Applicant and was unfunded to conduct further investigations.

66. The report indicated that in the absence of funding from creditors and/or ASIC, the Liquidator did not propose to send any further reports or updates and estimated that the liquidation of MES would be completed within three months. In written submissions, the Respondent contended that the Applicant had not provided the Liquidator’s final report which was said to have been lodged on 13 October 2025. I am satisfied from the affidavit of Mr McEvoy dated 10 March 2026 (exhibit A2) that no final report was lodged by the Liquidator on 13 October 2025. I am satisfied that on that day the Liquidator lodged an end of administration return and a notice of “Cease an administration of a specified company”. Both documents were before the Tribunal.

ATO debt

67. Counsel for the Applicant submitted that the suggestion of insolvent trading in the Liquidator’s Report was at risk of inflation for a number of reasons and that the conclusion appeared to rest primarily on the existence of an ATO debt. It was submitted that the debt alone does not establish insolvency and is at least a matter that requires careful consideration in these proceedings, particularly given that the Liquidator’s Report provided no cash flow analysis, no detailed examination of the balance sheet at the alleged date of insolvent trading having started.

68. It was also submitted on behalf of the Applicant that it was unclear what part of the amount of $541,695 referred to in the Liquidator’s Report as statutory creditors was attributable to the ATO debt.

69. Mr McEvoy gave evidence that the financial records of his previous accountants were not transferred to Greenline Accounting and consequently they were not fully familiar with the accounts of MES. He also said that since the Liquidators took control of the Xero accounts, they had been uncooperative and largely failed to respond to requests for information relating to the company’s previous accounts. Mr McEvoy stated that due to the liquidation of MES, he was unable to get access to his invoices to customers from about 2018 onwards, copies of invoices issued by One Point Accounting and his old emails, including those relating to proceedings against the building company that were taken in the NSW Civil and Administrative Tribunal (NCAT). He also referred to having to withdraw the proceedings due to the poor performance of the solicitor he had engaged.

70. The Applicant did not provide any evidence of these requests to the Liquidator and no statements or letters from the accountants for MES were before the Tribunal, other than some limited documentary material from Greenline Accounting. There was no indication of any attempts made by the Applicant to obtain material from other sources, particularly from the ATO or from NCAT.

Mr McEvoy’s evidence - statutory declaration

71. In his statutory declaration, Mr McEvoy states that during the Covid period in early 2020, his tax debts began to grow significantly. He said that in 2022, the business began to recover strongly and along with the extra income, came more ATO debts. He said that within the space of about 12 months, the ATO debt increased from around $90,000 to over $300,000, eventually reaching about $350,000 or similar. Mr McEvoy did not provide any reasons for the initial tax debt or for the increase of the debt, other than stating that “the debt appeared to have been from bad accounting practices, causing it to accrue*.*”

72. Mr McEvoy stated that as the tax debts escalated, he began to receive increasingly threatening letters from the ATO and in response he paid $10,000 to the ATO to demonstrate good faith. He then asked One Point Accounting to contact the ATO and arrange a payment plan but was informed by the accountants that a payment plan was not an option in that case. He said that he believed the accountants were wrong and that payment plans were a normal part of managing ATO debt especially for small businesses.

73. Mr McEvoy went on to say in his statutory declaration that at the time, his accountant at One Point Accounting also warned him of the ATO’s increasing aggression and that it had started “issuing Director Penalty Notices (DPNs), creating personal liability for company debts.” Mr McEvoy stated that despite making multiple requests, all attempts to negotiate a payment plan through One Point Accounting were rejected by the ATO.

Mr McEvoy’s evidence - affidavits

74. In his January 2026 affidavit, Mr McEvoy stated that around “that time”, he became aware that MES had a tax debt of approximately $105,000 owing to the ATO and that he recalled “receiving an email with an overdue invoice notification” but that he no longer had access to MES’ records and emails. Mr McEvoy stated that he spoke to his accountant about the ATO tax debt and enquired about obtaining a reduction of the debt through a Covid debt assistance scheme but was told that MES was not eligible.

75. The Applicant did not provide a specific date as to when he became aware of the tax debt of approximately $105,000. However in the previous paragraph of his affidavit he referred to the period of approximately six months from March 2020. On this basis, I am satisfied that the relevant time being referred to by Mr McEvoy is sometime between March and September 2020 and that this time is prior to the engagement of One Point Accounting, which he says later in the same affidavit, took place sometime in 2021.

76. Mr McEvoy says that in or around early 2022, some eight to ten months after engaging One Point Accounting, they informed him that this ATO debt had increased to approximately $350,000 which surprised him as the company was not carrying out many projects and had limited cash flow. He met with his accountant and was told that the accountants had gone back over what his previous accountant had done and “fixed” it up and that it had become $350,000. Mr McEvoy said that the answer was vague and whilst he was not satisfied with it, he accepted that the ATO debt had increased to $350,000.

77. Mr McEvoy then had a further conversation with the same accountant and after indicating that he wanted to re-finance his home to clear the debt, he said that he was told it was not a good idea to use the equity in his house to pay off a business debt. The accountant advised that a payment plan with the ATO could be applied for and subsequently did so. Mr McEvoy was told by the accountants that a payment plan was not an option.

78. Between around 2023 to 2024, to demonstrate good faith and the intention to pay the debts to the ATO (and to assist in obtaining a payment plan), Mr McEvoy said that MES made four payments of $5,000 plus a $10,000 payment, totalling $30,000 towards the debt. Mr McEvoy said he could not recall the dates of the payment but was aware the payments were made.

79. Mr McEvoy appointed Greenline Accounting in around April 2025 to take over the accounting for MES from One Point Accounting. He said he did so because he was dissatisfied with One Point Accounting’s management of MES’ finances, particularly the rapid increase of the ATO debt and lack of progress in negotiating payment plans. Mr McEvoy said he discussed with Greenline Accounting, the possibility of refinancing his family home to obtain approximately $350,000 to repay the ATO debt and that Greenline Accounting was open to this strategy to assist MES. Around that time, he said that Mr Tim Fanous of Greenline Accounting advised him to seek advice from a business consultant and referred him to Wisdom Business Consultants (Wisdom Consultants), an Australian business consultancy providing specialised advice to companies facing financial distress. Mr Tim Fanous recommended getting a particular consultant from Wisdom Consultants (the Consultant) involved as “it’s [her] expertise”.

80. Mr McEvoy said in around May 2025, he sought advice from the Consultant due to the “**$350,000 tax debt” and on the recommendation of Greenline Accounting. Mr McEvoy said that when he spoke with the Consultant on around 15 May 2025, he told her about the “$300k tax debt” that MES had incurred and “which has not been able to be paid”.

Mr McEvoy’s oral evidence

81. In cross-examination at the hearing, Mr McEvoy gave evidence that he first became aware of the tax debt owed by MES in 2020 and that he was aware in around 2023/2023 that it had substantially increased. In response to my questions, Mr McEvoy acknowledged that he would have seen the quarterly BAS returns and annual statements prepared by the accountants between around 2016 and 2025. He also said that there was a period where the accountants had not lodged “quarterlies” for quite some time. He said that when they caught back up with what was owed, the debt escalated and it increased to quite a large amount “overnigh**t.”

Consideration

82. Whilst there is no detailed evidence before the Tribunal as to when MES first accrued a tax debt to the ATO, the quantum of that initial debt or the reasons for that debt, it appears from Mr McEvoy’s evidence that he was aware of MES having a tax debt prior to the Covid period in early 2020 as he states that “during the [Covid] period in early 2020” the tax debts “grew significantly”.

83. I am satisfied from Mr McEvoy’s oral evidence that he saw the quarterly returns and annual statements prepared on behalf of MES from 2016 to 2025. Whilst there were some inconsistencies in Mr McEvoys’s account, I accept that from some time prior to March 2020, he was aware that MES owed a tax debt to the ATO and that he was aware at various times from 2020 that the debt had increased to $90,000, to $105,000 and ultimately to $350,000 by around early 2022.

84. I accept that during this period, Mr McEvoy received an email with an overdue invoice notification for the ATO debt, and that as the tax debt escalated, he began to “receive increasingly threatening letters from the ATO” and was warned by One Point Accounting of the ATO’s “increasing aggression” and that it had started issuing Director Penalty Notices. It is not apparent from Mr McEvoy’s evidence whether his reference to this warning was a general comment or a specific reference to him having been issued with a Director Penalty Notice. I make no finding on the issue of a Director Penalty Notice, but if it was the latter, it is evident that Mr McEvoy would be personally liable for the MES tax debt.

85. I am satisfied that Mr McEvoy was also told by the accountants for MES that MES was ineligible for a reduction of that debt through a Covid debt assistance scheme and that in around 2022 he was told that the request for a payment plan had been rejected by the ATO and was not an option.

86. I accept that no payment plan by MES was agreed to by the ATO at any time and that it was not until April 2025 that MES engaged Greenline Accounting. Mr McEvoy gave conflicting accounts about the amounts paid by MES to the ATO in relation to the tax debt. In his statutory declaration, he refers to having paid a total of $10,000 to the ATO and in his affidavit he refers to having made a $10,000 payment as well as four additional payments of $5,000 each, with a total of $30,000 having been paid. No supporting evidence of these payments, including from the ATO, was adduced. In the absence of any supporting evidence I am not able to be satisfied that MES made any payments toward the ATO tax debt.

87. In my view, even if payments were made by MES towards the ATO debt of between $10,000 and $30,000, it would reasonably be expected that the debt would nonetheless have increased by April 2025 from the amount of $350,000 that was owed in 2022/2023. No evidence was adduced as to any enquiries about the ATO debt at the time that Greenline Accounting was appointed in April 2025 but given that Mr McEvoy continued to see the quarterly returns and annual statements throughout this period and had been receiving increasingly threatening correspondence from the ATO, I am satisfied that Mr McEvoy would have been aware of any increase to the tax debt. Even if this was not the case, it is apparent that Mr McEvoy or Greenline Accounting could have obtained this information from the ATO.

88. Whilst Mr McEvoy blamed the increase in the ATO debt on poor accounting practices, no supporting evidence was adduced in relation to this contention. I have had regard to Mr McEvoy’s oral evidence and am satisfied that the then accountants for MES did not lodge quarterly reports on behalf of MES for “quite some time”. In circumstances where Mr McEvoy, as the sole director of MES was aware that this was occurring and did not provide any evidence as to why the returns were not being lodged, I cannot be satisfied that this was due to bad accounting practices by the accountants. I am also satisfied that the tax debt owed by MES to the ATO substantially increased once the accountants lodged the returns, and that Mr McEvoy was of the view that the late lodgement of these returns was a significant factor in the sudden increase of the ATO debt.

89. As referred to above, counsel for the Applicant made submissions about the Liquidator’s Report and that the Tribunal should be cautious about the report, particularly as it did not specifically refer to the quantum of the ATO debt. Counsel for the Applicant appropriately referred to the Creditor List–70-30 Report (Creditor List Report) contained in the s 58 documents which appears to have been provided to the Respondent by the Liquidator as an attachment to a form headed “Presentation of summary of affairs of a company” which was lodged with ASIC on 29 May 2025 and with the date that the summary of assets and liabilities was made up being 19 May 2025.

90. Under the heading “Unsecured Creditors” the Creditor List Report, there is a list of eight named creditors. Included in this list is the Deputy Commissioner of Taxation, with the relevant address being “via ATO Portal” and the relevant amount being “$537,081.66”.

91. The Liquidator’s Report, which is dated 11 August 2025 refers to unsecured creditor claims totalling $582,360 which includes trade creditors in the amount of $40,665 and statutory creditors in the amount of $541,695. This is consistent with the amount owed to unsecured creditors in the Liquidator’s End of administration return lodged with ASIC on 13 October 2025.

92. Having regard to the evidence, and in the absence of any evidence adduced to dispute the amount of the ATO debt in the Creditor List Report, I am satisfied that as of 19 May 2025, the date of liquidation, MES owed a tax debt of $537,081.66 to the ATO. It is apparent that this debt had increased from the previous amounts of $90,000, $105,000, and $350,000 that were acknowledged by Mr McEvoy.

93. It is evident that this amount is a significant portion of the total amount of $582,360 owed by MES to unsecured creditors as referred to in the Liquidator’s Report. In reaching this view, I have had regard to Mr McEvoy’s reference in his letter to the Respondent that accompanied the Additional Details Form 5 in which he said, “please note that the main debt of the business [MES] was ATO related, and they were not really open to us making payment arrangements.” There is no evidence before the Tribunal that any payments were made by Mr McEvoy or by the Applicant in relation to the unsecured creditors of MES.

Outstanding superannuation contributions

Evidence

94. It was not in dispute that after MES went into liquidation, the ATO lodged a claim with the Liquidator in respect of superannuation guarantee charges totalling $70,384 and that this amount was included in both the Liquidator’s Report and the end of administration return lodged by the Liquidator on 13 October 2025.

95. It was also not in dispute that Mr McEvoy was aware of outstanding superannuation contributions owed to MES employees prior to the liquidation. In his statutory declaration, Mr McEvoy said that in around 2024, he approached One Point Accounting to initiate a SBR and he began “catching up” on all outstanding superannuation obligations. He said that he did so, even though it turned out that MES was not eligible for an SBR due to repeated refusals of payment plans with the ATO.

96. No documentary evidence was adduced to show that any outstanding superannuation payments were made to the employees of MES in 2024, either by MES or by McEvoy and I am not able to be satisfied that such payments were made.

97. In his January 2026 affidavit, Mr McEvoy makes no reference to MES catching up on superannuation payments in 2024 or to these discussions with One Point Accounting. He does however refer to the Consultant telling him on 15 May 2025 that any superannuation owed to employees “can go down with the company”, to which Mr McEvoy indicated that he was not going to burn his “people” and that he would pay them their “super”. He said that he subsequently paid all his staff’s superannuation entitlements, other than his own and this was paid by his new company, namely the Applicant, as a director’s loan from his personal funds.

98. Mr McEvoy went on to say that from mid-2025, he began to pay outstanding superannuation contributions as he understood that having no superannuation debts was a requirement for an SBR. He said that he was told by his accountant that an SBR would not be an option due to repeated refusal of payment plans by the ATO. Despite this, he said that he made significant payments towards superannuation debts, and between about May and August 2025 arranged for payments towards superannuation totalling at least $60,520.19. Mr McEvoy said that out of the $70,384 in superannuation shown in the ROCA, he had paid $60,520.91. He confirmed these payments in oral evidence and said that he still intended to pay the remaining amount of $10,000.

99. Mr McEvoy produced four pages of documents, which he said related to these payments, as attachments to his January 2026 affidavit. It appears that at least some of these documents relate to the Westpac ‘QuickSuper’ service and none appear to have been provided by the ATO. No further evidence was provided as to the source of these documents or to explain their contents.

Consideration

100. There are some confusing aspects to these documents. The first three pages, which appear to come from two separate sources appear to relate to superannuation contributions made to a named person with a date of birth showing to be 31 January 2025. The document appears to indicate payments made by MES to this person in two tranches on 28 April and 22 September 2025 which relate to contribution periods from November 2016 to June 2023. The fourth page appears to relate to a one off payment of almost $21,000 to a person with the same surname as Mr McEvoy, for the period 15 April to 8 May 2025, with the employer being named as the Applicant. In the absence of further evidence relating to these documents, they are of limited weight in my consideration of the outstanding superannuation contributions.

101. In circumstances where Mr McEvoy’s acknowledged that he was aware of the outstanding superannuation contributions prior to the liquidation of MES and asserts that he had made payments towards them, both before and after the liquidation of MES, it follows that he must have had access to the details of the required contributions and that evidence of this material could have been adduced on behalf of the Applicant. However, no such evidence was before the Tribunal.

102. Without such further evidence, and without any evidence from the ATO acknowledging that the payments referred to by Mr McEvoy relate to the $70,384 claimed by the ATO, I am not able to be satisfied to the relevant standard that the payments referred to Mr McEvoy were made, or even if they were made, that they represent payments by the Applicant or Mr McEvoy towards the outstanding superannuation guarantee charge claimed by the ATO following the liquidation of MES. Accordingly, it follows that I am not able to be satisfied on the available evidence that there has been any reduction to the amount of $70,384 claimed by the ATO or that there is only an amount of $10,000 still owing in relation to these contributions.

Financial position of the Applicant

Financial Viability Statement

103. As previously referred to, the Applicant relied on a Financial Viability Statement from Mr Afteem Fanous of Greenline Accounting dated 28 July 2025. which stated that it was based on the information provided to Greenline Accounting and their understanding of the Applicant’s financial position. Mr Afteem Fanous said that the total assets of the Applicant as of 28 July 2025 amounted to $306,280, which was made up of the following:

104. Cash at Bank: $35,859

105. Accounts receivable: $110,649

106. Tools and equipment: $2,088

107. Motor vehicles: $157, 684

108. The total liabilities of the Applicant as at that date were said to be $242,486, consisting of the following:

109. Trade creditors: $9,549

110. Credit cards/loans$201,917

111. ATO Liabilities: $31,020

112. Other liabilities: $0

113. As a result, the net assets (Equity) of the Applicant were said to be $63,794.

114. For the 12 months ending 28 July 2026, the Applicant was said to be projecting contract revenue of $1,430,000 with projected expenses of $868,000, including expenses for subcontractors and wages, with a projected net profit (before tax) of $562,000.

115. Under the heading “Accountant’s statement of Opinion”, Mr Afteem Fanous wrote:

In our opinion, based on the [Applicant’s] current financial position and projected income and expenditure, [the Applicant] is financially viable and has the capacity to complete contracts into the foreseeable future for the scope of specialist electrical work for which a contractor licence is sought.

This opinion is provided based on the information made available to us and is not an audit or assurance engagement.

108. Mr Afteem Fanous did not set out the details of the information made available to Greenline Accounting in relation to the Applicant and upon which he relied on for his opinion. No statement from Mr Afteem Fanous was adduced in evidence before the Tribunal and he did not give oral evidence in the proceedings.

Other evidence

109. In his January 2026 affidavit, Mr McEvoy referred to a $300,000 loan that he had obtained from Capseed Investments Pty Ltd (Capseed) which contained a condition that his home would need to be sold to repay the loan. Mr McEvoy said that the funds from this loan were used to purchase vehicles and other assets from MES through the liquidator and for the operation of the Applicant. Mr McEvoy produced a letter from Capseed dated 27 June 2025 confirming the loan which was repayable on or before 27 June 2026. This letter was addressed to Mr McEvoy and his wife, followed by the name of the Applicant. A further letter from Greenline Legal Services dated 27 June 2025 and signed by a solicitor from Greenline Legal was also adduced. This letter was addressed to the Applicant and confirmed settlement of a short term loan.

110. In his oral evidence, Mr McEvoy confirmed that the purpose of this loan was for the purchase of five vehicles from MES. This included the payment of $24,000 to the Liquidator for two vehicles owned by MES and the pay out the monies owed to three financiers for another three MES vehicles. In cross-examination, Mr McEvoy confirmed that of the $300,000, $100,000 was interest on the loan and that the remainder was used to purchase the five vehicles and “that’s it”. He also confirmed that the amount shown under Liabilities in the Financial Viability Statement related to this loan and that it was “just missing the interest”. In re-examination, Mr McEvoy indicated that the Capseed loan was a loan to the Applicant but that he was personally paying it by selling his home. He indicated that his home had been sold prior to the hearing and that the sale was due to settle by the end of March. He said that the full amount of the loan would be repaid at that time.

111. I am satisfied on the evidence before the Tribunal that following the liquidation of MES, the Applicant purchased two vehicles from MES in the amount of $24,000 and that this purchase was acknowledged in the Liquidator’s Report. I am satisfied that the Applicant also took ownership of three further vehicles from MES after paying out the remaining finance using funds from the Capseed loan. The finance for these three vehicles had been included in the amounts for secured creditors set out in the Liquidator’s Report.

112. As referred to previously, the Financial Viability Statement suggests that the Applicant was operating as of 28 July 2025, showing amounts for cash at bank, together with an amount of $110, 649 for accounts receivable as of 28 July 2025, with a projected contract revenue of $1,430.000 for the 12 months ending 28 July 2026.

113. The letter dated 15 September 2025 from Mr Tim Fanous of Greenline Accounting, supports the suggestion that the Applicant was operating at that time. Mr Tim Fanous indicates that since the engagement of Greenline Accounting, “significant improvements have been made in the accounting proce**sses of [the Applicant]”. He refers to multiple training sessions attended by both Mr McEvoy and his “admin staff*”* and that these changes “have” enabled the business to handle its workload more efficiently and ensure compliance is monitored on a timely basis.

114. Under the heading “My Employees” in Mr McEvoy’s statutory declaration, which is dated 16 September 2025, he states that his wife works in his business and that he, his wife and four children all rely on his business for their livelihood. He states that he employs two apprentice electrician and a tradesman and uses a lot of subcontractors for electrical and general labour, “as the volume of work exceeds the capacity” of their “core team”.

115. Mr McEvoy also refers to the steps taken to improve his business practices, including the following:

(b) established a consistent and reliable stream of regular work with valued customers, ensuing steady cash flow to meet wages, invoices, and other relevant expenses. We have a full calendar of work for the foreseeable future and will obtain references from long-term clients and subcontractors;

(c) separated personal and business finances more clearly by setting up formal wages for myself and my wife, who also works in the business…

116. The request for internal review, which is dated 16 September 2025, includes various certificates of currency for the Applicant, including Workers Insurance for five workers from icare dated 6 June 2025. The material also includes a personal statement from the Applicant’s wife dated 14 September 2025 which refers to “Admin Manager” and the name of the Applicant in the heading of the statement. Ms McEvoy states that she is writing as “an employee of the company, as well as the wife of the Director”. This statement suggests that at that time, Ms McEvoy was an employee of the Applicant and she refers to her work in the present tense, including in the statement “**…I maintain clear boundaries between my personal and professional life and hold myself to the same expectations as any other team member”.

117. Mr McEvoy’s January 2026 affidavit refers to being the director of 4B Projects and being actively involved in its day to day management. Mr McEvoy stated that this company does not undertake electrical work. He also referred to the incorporation of the Applicant in around mid-2024. Later in the affidavit, Mr McEvoy states that his wife, “works for my business. The income we receive from the business is our only source of income. We depend entirely on this income to support ourselves and our four children financially”.

118. Under the heading “Improved financial practices”, Mr McEvoy refers to the practices instituted at both 4B Projects and the Applicant. He then indicates that all ATO debts have been paid ahead of time, and that “the last bill of about $40,000 was paid to the ATO”. The bill referred to appears to be a payment request from the ATO showing the Agent as Greenline Accounting and the Client as the Applicant. The Account indicates “Activity statement 2” for the Applicant in the sum of $44,829. A payment receipt indicates this amount was paid by the Applicant to the ATO on 25 November 2025.

119. Also attached to Mr McEvoy’s affidavit is what appears to be a payslip to Mr McEvoy for payments made to him by the Applicant. The payslip refers to the pay period 19 December 2025 to 1 January 2026 and shows total earnings for this period, including ordinary hours, as well as payments for public holidays such as Christmas Day, Boxing Day, and New Years Day. It indicated the year to date payments relating to salary and wages for Mr McEvoy as well as year to date superannuation contributions for him.

120. In cross-examination, Mr McEvoy was asked about what business the Applicant was doing “now” and Mr McEvoy responded, “nothing essentially”. Mr McEvoy asked if the Applicant was doing any commercial projects and he responded “No”. He was then asked, to the best of his knowledge, whether he knew how the estimate for the Applicant in the Financial Viability Statement had been reached if the Applicant was not doing any business and does not have any income. Mr McEvoy responded that it showed what he would be able to generate with the “proper licence”.

121. In re-examination, Mr McEvoy indicated that when had been referring to his improved financial practices, namely “invoicing forward” he was referring to the business of 4B Projects. He said his work in this company was something he had wanted to do in the past but never really got to. He said that when all of this came about, he had set up that business as he needed to survive and that it involves him managing jobs for other people.

122. In response to my questions, Mr McEvoy confirmed that the Applicant had not been operating since it was set up and that he had been using 4B Projects. He then clarified that “briefly”; while transitioning to 4B Projects, he had used the Applicant in the project management work he was doing. He said that he had “now” moved back completely to operating from 4B Projects.

123. Following further questioning from me, Mr McEvoy indicated that he was the only person employed in the business of 4B Projects. In response to a question from the Respondent about his documentary evidence that his wife worked for his business, he said that this was in relation to MES and the Applicant, which is not operating at the moment. He said that his wife only worked for the Applicant and not for 4B Projects.

Commencement of the Applicant’s business

124. The Liquidator’s Report refers to Mr McEvoy providing correspondence to them that “indicating that all employees and associated entitlements were transferred to [the Applicant] on 1 April 2025.” The correspondence referred to by the Liquidator was not in evidence before the Tribunal and no evidence was adduced to dispute that the transfer of staff from MES to the Applicant occurred on 1 April 2025 or to establish that the transfer took place on a different date. Whilst it was not in issue that the Applicant was registered on 4 July 2024, no other evidence was adduced as to the specific date that staff were transferred to the Applicant.

125. As referred to previously, the documentary evidence relied upon by the Applicant to establish superannuation payments includes one page showing a payment of some $21,000 made to an employee of the Applicant for the contribution period 15 April 2025 to 8 May 2025 with a Report date of 6 August 2025.

126. It would appear from the documentary evidence, particularly the section headed “My Employees” in Mr McEvoy’s statutory declaration that is expressed in the present tense, that he, his wife, two apprentice electricians and a tradesman all worked for the Applicant at that time, namely in September 2025. The number of staff referred to by Mr McEvoy is consistent with the Certificate of Currency for Workers Insurance from icare that was previously referred to and is dated 6 June 2025. This is addressed to the Applicant, and to Mr McEvoy’s wife, and refers to “5” workers under that insurance cover.

Consideration

127. The evidence relating to the operation of the Applicant and the financial viability of that company is somewhat confusing. The documentary evidence adduced, including from Mr McEvoy and Greenline Accounting, suggests that the Applicant was operating from at least June 2025 until January 2026, whereas the Liquidator’s Report suggests that Mr McEvoy provided him with correspondence indicating that staff were transferred from MES to the Applicant on 1 April 2025. This date of transfer appears to be consistent with the superannuation payment reported on 6 August 2025. Mr McEvoy’s oral evidence was to the effect that the Applicant only “briefly” operated and that for a period of time he used the Applicant to run his project management business, 4B Projects.

128. There is no clear evidence before the Tribunal as to when the Applicant commenced operating, the period of time during which it employed staff, including Mr McEvoy’s wife and the other staff transferred from MES or the dates of the “brief” period it operated, including the period during which Mr McEvoy said he used the Applicant for his project management work. Given the undisputed reference in the Liquidator’s Report that Mr McEvoy provide correspondence indicating that all employees and associated were transferred to the Applicant on 1 April 2025, I accept that this is the most likely date that this occurred.

129. The Applicant placed great weight on the Financial Viability Statement from Greenline Accounting. Of note however, the statement is dated 28 July 2025, almost eight months prior to the hearing of this matter, with no further material being provided by Greenline Accounting, other than the letter from Mr Tim Fanous dated 15 September 2025. No further information from Greenline Accounting, or any other accountant was adduced on behalf of the Applicant about the Financial Viability of the Applicant after that date, and in particular as at the date of the hearing.

130. Whilst the Financial Viability Statement refers to total assets of $306,280, the only evidence before the Tribunal of assets held by the Applicant relates to those vehicles purchased from MES using funds from the Capseed loan. Mr McEvoy gave evidence that he believed that the Financial Viability Statement was based on what he would be able to generate if he had the proper licence but the Financial Viability Statement does not itself refer to this assumption. It is also apparent that the Applicant has never held a contractor licence in electrical wiring.

131. Whilst a reference from National Shopfitting Services was produced, it does not refer to either MES or to the Applicant and makes no reference to the Application or to these proceedings and does not refer to any future contracts with the Applicant. On this basis, I give this reference extremely limited weight in my determination.

132. In light of the inconsistencies around the operation of the Applicant and in the absence of supporting evidence relating to the information made available to Greenline Accounting about the Applicant’s financial position as at 28 July 2025, or its projected income and expenditure, it is not clear how Mr Afteem Fanous reached his opinion that the Applicant is financially viable and has the capacity to complete contracts into the foreseeable future for the scope of specialist electrical work for which a contractor licence is sought. No up to date information was provided by Greenline Accounting as to the financial viability of the Applicant as at the date of the hearing. On this basis, I give no weight to the Financial Viability Statement or the opinion reached in it by Mr Afteem Fanous.

133. Whilst Mr McEvoy gave evidence that the Capseed loan would be paid out by the end of March 2026, no supporting evidence was provided in relation to this and no detailed evidence given as to the current financial position of Mr McEvoy or the Applicant. In the circumstances I am not able to form a view as to the current financial viability of the Applicant or the current financial position of the Applicant’s sole director, Mr McEvoy.

134. The Applicant relied on the letter from Mr Tim Fanous of Greenline Accounting dated 15 September 2025 to demonstrate that since the engagement of Greenline Accounting, significant improvements had been made in the Applicant’s accounting practices and that both Mr McEvoy and his ‘admin’ staff had attended multiple training sessions in Xero and had implemented new systems, with the “before and after” being notable. Mr McEvoy also refers in his documentary evidence to the improved accounting practices that have been implemented in the Applicant and gave oral evidence of the informal training and lessons that he had learned. He acknowledged in evidence that he had not undertaken any formal courses that may assist in being a director of the Applicant

135. In the absence of detailed evidence relating to the operation of the Applicant and having regard to Mr McEvoy’s evidence that it only operated “briefly”, including as a vehicle for his project management business, it is not clear how or when the practices and training that Mr Tim Fanous refers to in his letter, took place. In the absence of any evidence from Mr Tim Fanous on these issues, I give no weight to his letter dated 15 September 2025. Similarly, in the absence of further detailed evidence relating to the operation of the Applicant, it is difficult to evaluate the ‘informal’ learnings and new practices that Mr McEvoy asserts he has put into place in the Applicant company.

136. Accordingly, whilst I accept from Mr McEvoy’s oral evidence that he has gained new learnings following his experience with MES and the subsequent liquidation, I am not able to make a finding as to the extent of those learnings, any improvements to the Applicant’s accounting practices or of Mr McEvoy’s understanding of his duties as a director.

Claims by Liquidator

137. I have previously found that as at the date of liquidation, MES owed a tax debt to the ATO in an amount of 537,081.66. It was not in dispute that the ATO had lodged a claim with the Liquidator in respect of superannuation guarantee charges totalling $70,384 claimed from MES and that the ATO also advised that there were further outstanding lodgements which may result in additional claims. The Liquidator’s Report expressed the following preliminary views:

(i) MES was likely insolvent as of 30 June 2021 and always remained insolvent as to the date of appointment on 19 May 2025. Based on the estimated date of insolvency, the Liquidator calculated the potential claim for insolvent trading to be $545,479; (ii) The business of MES may have been transferred to the related entity, the Applicant for no consideration and that correspondence had been provided indicating that all employees and entitlements were transferred to the Applicant on 1 April 2025; (iii) The management accounts for MES record plant and equipment totalling $10, 114 and that Mr McEvoy asserts that MES does not own any plant and equipment; (iv) All Employees and associated entitlements were transferred to the Applicant on 1 April 2025, however SGC debts of $70,385 remain in the company;. (v) The management accounts for MES record goodwill totalling $80,745 which the Liquidator considered attributable to the intellectual property of MES, including data base and customer lists; (vi) The Liquidator identified a loan to Mr McEvoy totalling $569,590 and that Mr McAvoy asserts that the negative liabilities appearing in the books are incorrectly recorded loans. (vii) Based on the information available at the time of reporting, Mr McEvoy did not appear to have the financial capacity to satisfy the estimated claim for insolvent trading; and (viii) Mr McEvoy may have contravened the Corporations Act, including s 588G relating to insolvent trading; and ss 180 and 181 in relation to director’s duties.

Consideration

138. I take into account the findings that I have made above and accept Mr McEvoy’s oral evidence that the Capseed loan was used to purchase the five vehicles previously referred to and nothing else.

139. Counsel for the Applicant asserted that the Liquidator had misunderstood the nature of the goodwill payment in the context of this liquidation and that the goodwill referred to in the MES records was the result of an accounting entry and was not paid as the company was not purchased. Whilst I have had regard to the evidence and submissions on this point, I am not of the view that it is necessary for the Tribunal to determine this issue in the context of this matter. Even if it were necessary for the Tribunal to do so, in my view there is insufficient evidence before the Tribunal to be able to make a finding. I take a similar view in relation to the preliminary view expressed by the Liquidator regarding the Director’s Loan and make no finding on that issue.

140. I accept the Applicant’s submission that the views expressed by the Liquidator are preliminary only and this is clearly reflected in the Liquidator’s Report itself. I also accept that due to the lack of funding, the Liquidator did not conduct further investigations and/or recovery action with respect to the matters raised in the Liquidator’s Report and that no final report was lodged by the Liquidator in this matter.

141. I have regard to Mr McEvoy’s oral evidence at the hearing that he had not been contacted by the ATO in the previous couple of months in relation to the outstanding debts of MES and that in the same timeframe he had not been issued with any claims from the ATO or the Liquidator in relation to outstanding tax debts of MES. However, no evidence was adduced from the ATO in relation to the ATO tax debt or in relation to the statements and returns relating to MES and which had not been lodged at the time of liquidation. No evidence from ASIC was adduced, other than from company searches and documents lodged by the Liquidator.

142. I am satisfied that as at the date of hearing, there is no evidence that any further contact or demands had been made to Mr McEvoy in relation to any claims on MES or on debts owed by MES and that no action had been initiated against Mr McEvoy by the ATO or ASIC. However, I also have regard to the relatively limited time between MES entering into liquidation on 19 May 2025, the Liquidator’s Report being issued on 11 August 2025, the end of administration return being lodged on 13 October 2025 and the hearing of this matter on 18 March 2026.

143. I have already found that the quantum of the debt owed by MES to the ATO as at the date of liquidation is $537,061.66 which is clearly a significant amount. Whilst I was not able to make a finding as to whether Mr McEvoy had previously been issued with Director Penalty Notices, I accept that on the available evidence, it remains open for the ATO to seek to take action against Mr McEvoy personally for the recovery of any outstanding debts, claims and unlodged statements and returns relating to MES. Without making any determination as to the merits of the preliminary views expressed by the Liquidator in the Liquidator’s Report, it also remains open for ASIC to take action against Mr McEvoy in relation to those matters referred to in the Liquidator’s Report.

144. I accept the submission on behalf of the Applicant that the insolvent trading claim, for example, has not been made, established, or the subject of any proceeding and accept that the other claims have not been made out. I do not accept however, that such claims cannot rationally constitute an evident risk in the current matter, particularly given the circumstances of this matter and the findings that I have made.

145. In circumstances where no evidence was adduced as to Mr McEvoy’s current financial circumstances, I am unable to accept the Applicant’s submission that Mr McEvoy has the personal assets to meet any claim for insolvent trading, if pressed to judgment, or to meet any other claim that may be pressed to judgment. This is particularly so, where Mr McEvoy’s evidence is that the Applicant is not currently trading, and he has recently sold the family home to repay the Capseed loan.

CONCLUSION

146. I accept that whilst MES suffered some financial difficulties as the result of Mr McEvoy’s personal circumstances, the debt owed by the building company and the unsuccessful attempt to recover it through the NCAT proceedings, it is apparent from Mr McEvoy’s evidence that from around mid-2021, after the second lockdown, MES began to financially recover as it began to undertake more projects and that by June 2022, the business income was higher than pre-Covid levels.

147. I am satisfied that the primary reason for MES entering into liquidation on 19 May 2025 related to the tax debt of $537,081.66 that was owed to the ATO by MES. This is consistent with the explanation given by Mr McEvoy in his letter to the Respondent accompanying the Additional Details Form 5 dated 28 July 2025 that was previously referred to.

148. It is clear that Mr McEvoy was aware of the ATO debt prior to March 2020 and was aware that the debt continued to increase after that time and that by 2022 it had increased to $350,000. Mr McEvoy took no steps to address this debt other than to request that his accountant seek a repayment plan which was rejected by the ATO. It was not until some years later in 2025 that Mr McEvoy changed accountants and sought professional advice.

149. I accept that Mr McEvoy drew money out of his own superannuation during Covid to help MES pay staff and later told the Consultant that he did not want to “burn” his staff. However, it is apparent from Mr McEvoy’s evidence that MES did not pay staff all superannuation contributions due to them at the relevant time, and that Mr McEvoy was aware of this, from at least 2024. The Applicant did not dispute the quantum of the claim from the ATO for the superannuation guarantee charges of $70,384 owed by MES.

150. I accept the Respondent’s submission that the concern in this matter is not so much about MES having been put into liquidation but the way in which Mr McEvoy, as the sole director of MES, had managed the company, particularly in relation to the ATO debt. It was acknowledged by Mr McEvoy in his January 2026 affidavit that he had managed his company finances in a manner similar to that of a “sole trader” without fully appreciating the distinctions required for a proprietary limited company.

151. In the absence of detailed and up to date evidence about the operation of the Applicant and its current financial viability, it is not possible to be satisfied that the management of the Applicant company has significantly improved. Moreover, given that only a relatively limited time has passed since MES was liquidated and deregistered, and given the preliminary findings made by the Liquidator about Mr McEvoy’s conduct as the director of MES, it is not possible to be satisfied that there is no evident risk that Mr McEvoy will not be personally liable for the substantial liabilities and potential claims relating to MES in the future.

152. In the absence of evidence as to Mr McEvoy’s financial position, it is not possible to be satisfied that there is not an evident risk to his ability to meet 1 is a real risk that this may negatively affect the Applicant’s financial position and ability to complete future contracts.

153. In all of the circumstances of this matter and having regard to the protective nature of the HBA, I am not able to be satisfied that there is no evident risk to the public that the Applicant will be unable to complete contracts entered into the future to do specialist work.

ISSUE 2 - All reasonable steps to avoid liquidation - s 33B(2)(c) of the HBA

154. Whether an individual “took all reasonable steps” to avoid bankruptcy, insolvency, administration or liquidation was considered by the Tribunal’s Appeal Panel in Goodman v Commissioner for Fair Trading [2023] NSWCATAP 260. The Appeal Panel at [20]-[22] adopted the views expressed by Senior Member Montgomery in Poytress v Director General, NSW Fair Trading [2015] NSWCATOD 100, saying:

20. The appellant said he had taken all reasonable steps to avoid the placement of BCM into external administration.

21. In Poytress v Director General, NSW Fair Trading [2015] NSWCATOD 100 the Tribunal held:

Did Mr Poytress take all reasonable steps to avoid the liquidation of Site Construction?

39 In examining the question of whether a licence holder took 'reasonable steps' to avoid a bankruptcy or insolvency has been considered in a number of decisions of this Tribunal and the former Administrative Decisions Tribunal.

40 In Clarke v Commissioner of Fair Trading, Office of Fair Trading [2004] NSWADT 273 the Tribunal's President referred to a number of earlier decisions under comparable provisions in the Property, Stock and Business Agents 2002 and concluded at paragraphs [9] - [10]:

9 The Tribunal has already dealt with three applications for review arising under the new provisions: McDonald v Commissioner for Fair Trading [2004] NSWADT 124, Smith v Commissioner for Fair Trading [2004] NSWADT 182 and Davidson v Commissioner for Fair Trading [2004] NSWADT 200.

10 It has expressed the following views as to the approach to be taken in examining the question of whether the licence holder took 'reasonable steps' to avoid the bankruptcy or insolvency:

(i) A general inquiry into the wisdom or otherwise of the original financial dealings that ultimately ended in bankruptcy or insolvency is not contemplated by the Act. The point at which the inquiry commences is when the applicant was 'faced with the possibility' of bankruptcy or insolvency (Davidson at [20]) or was 'aware' or 'should have been aware' (McDonald at [21]) of that possibility. The focus is the steps taken to avoid the relevant event (see Smith at [17]) - in cases of the present kind, administration, and later liquidation.

(ii) Subject to (i), in assessing reasonableness the Tribunal must examine all the relevant facts and circumstances. (McDonald at [25]),

(iii) The steps taken by the applicant must be objectively reasonable in the sense that they would be those taken by a 'reasonable person endowed with the knowledge and experience of the [applicant]'. (McDonald at [26-27])

11 To these should probably be added a fourth, though it is obvious enough from the provision:

(iv) The person under notice has the task of satisfying the Commissioner that he or she took all reasonable steps to avoid the insolvency.

155. Having regard to the evidence before the Tribunal, I am not satisfied that Mr McEvoy, as a relevant person in MES, took all reasonable steps to avoid MES being liquidated.

156. In reaching this view, I have had regard to the debts incurred by MES, particularly the substantial ATO debt that started to accrue some time prior to March 2020 and grew significantly up until the date of liquidation. As referred to above, I am satisfied that Mr McEvoy was aware of the debt owed by MES to the ATO, and at the date of liquidation had been aware for more than four years that the debt was increasing and acknowledged having received an email with the overdue invoice attached, together with increasingly threatening emails from the ATO as well as a warning from One Point Accounting, including in relation to Director Penalty Notices.

157. Other than instructing One Point Accounting to seek a payment plan with the ATO which was rejected for unknown reasons, and asserting that he had paid an amount towards the debt which he stated was between $10,0000 and $30,000 Mr McEvoy as the sole director of MES, failed to take any further steps to address this debt, to seek alternative professional advice or to change accountants between 2022 and April 2025 when MES moved to Greenline Accounting.

158. I accept that Mr McEvoy took steps to recoup the debt owed to MES by a building company and engaged a solicitor and barrister to initiate proceedings before NCAT. On the limited evidence before the Tribunal, it is not possible for me to be satisfied that Mr McEvoy took all reasonable steps to recover the outstanding debt, including seeking alternative legal representation in the NCAT proceedings. However, in my view, the debt owed by the building company and the subsequent loss of work from that building company, was at most a contributing factor, rather than the primary cause of, MES being placed into liquidation.

159. There is conflicting evidence in relation to Mr McEvoy’s knowledge as to the solvency of MES prior to liquidation. The ROCAP signed by Mr McEvoy on 19 May 2025, indicates that MES ceased trading one week before that date, namely on 8 May 2025 as company debt had become “unmanageable” and the letter to the Respondent accompanying the Additional Details Form 5 indicated that it “is just that the legacy debt could not be managed and to move forward the company needed to be liquidated”.

160. This contrasts with Mr McEvoys’s statement in his January 2026 affidavit that at the time of making the Application on 15 May 2025, he understood MES to be “solvent*”* based on the MES’ profit and loss statements, which showed the business was making an overall profit.

161. I accept that when Mr McEvoy engaged Greenline Accounting in April 2025, he was advised of the seriousness of MES’s position and that selling his family home to reduce the ATO debt was considered by Greenline Accounting to be a genuine option. However, the evidence as to the next steps taken by Mr McEvoy appears to differ.

162. In his statutory declaration, Mr McEvoy said that shortly after engaging Greenline Accounting, they advised him that his business debt had become unmanageable and recommended that “we liquidate the current business and start fresh with a new business*.*” Greenline Accounting then referred him to the Consultant and formally engaged her. Mr McEvoy says that he was “initially” introduced to the Consultant on or around 15 May 2025.

163. Mr McEvoy stated that on that day, he was provided by the Consultant with a detailed checklist of tasks to complete, which he believed he received on the same day that he made the Application, namely 15 May 2025. He said that he was assured by the Consultant of her ability to resolve their issues and that he met with her in person on or around 16 May 2025 and that this was his only meeting with her. He said that they agreed that voluntary administration was the “best path forward”.

164. In his January 2026 affidavit, Mr McEvoy does not refer to Greenline Accounting recommending the liquidation of MES. Instead he states that he was advised by Greenline Accounting to seek advice from a business consultant and that they recommended the Consultant to him, as it was her “expertise”. He stated that on or around 15 May 2025, he met with the Consultant in person and that whilst he wanted to refinance his own home to pay off the tax debt “so the company can continue operating”, the Consultant advised that the “best thing” to do was to liquidate MES. Mr McEvoy said that based on the Consultant’s advice he then decided to proceed with liquidating MES.

165. In that affidavit, Mr McEvoy said that on reflection, he should have scrutinised the Consultant’s advice more carefully as he could have remedied MES’s finances by using the equity in his home. He also said that he would have preferred to have continued operating MES.

166. The evidence about when Mr McEvoy first considered the possibility of liquidating MES is very unclear, as is the exact date when he or Greenline Accounting first engaged the Consultant or what the basis of that initial engagement was. No specific evidence on these matters was adduced from Greenline Accounting and no evidence at all was called from any person from Wisdom Consulting, including the Consultant.

167. There is no evidence before the Tribunal as to what steps Mr McEvoy took to review the financial position of MES or his own position around the time of the liquidation, including prior to or after his meeting with the Consultant. There is no evidence of any enquiries made by him, or on his behalf with the ATO to ascertain the quantum of the tax debt and there is no evidence of any enquiries made by him, or on his behalf in relation to his own financial position, including what amount of equity was held in the family home or the potential sale price of that home. There is no detailed evidence of the consideration that was given by Mr McEvoy prior to making the decision to liquidate MES and when this occurred.

168. It was not contested that Mr McEvoy lodged the Application with the Respondent on 15 May 2025 and that on 19 May 2025, MES was placed into external administration and a Liquidator appointed. The Applicant’s case was that the decision to liquidate MES did not take place until after the meeting with the Consultant and Mr McEvoy’s evidence largely supports this position. There is, however, other evidence that appears to conflict with this position.

169. As referred to previously, I have accepted that it is most likely that staff were transferred from MES to the Applicant on 1 April 2025. No explanation was provided by the Applicant as to why this occurred, it appears not to have been discussed with the Consultant and it appears to conflict with Mr McEvoy’s evidence that he told the Consultant on around 15 May 2025 that he would need to check if the Applicant was still “active” at that time. It Is also not apparent why staff would be transferred from MES to the Applicant at a time when Mr McEvoy: believed that MES was still solvent; was considering selling his house to pay the ATO debt; and did not make the decision to liquidate MES until after meeting with the Consultant.

170. Mr McEvoy gave slightly conflicting accounts of when he first met the Consultant, including that it was around 15 May 2025 and around 16 May 2025. Included in the material provided to the Respondent by the Liquidator is a document seemingly headed “Remuneration Approval Report”, to the effect that the appointment of the Liquidator was the result of a referral from Wisdom Consultants who are referred to in that document as the “Referrer”. The document states that on 15 May 2025, the Liquidator received a phone call from the Referrer and engaged in email correspondence with the Referrer between 15 May 2025 to the date of his appointment on 19 May 2025. Accordingly, the decision to liquidate MES must have been made by Mr McEvoy on or before 15 May 2025.

171. Mr McEvoy’s evidence of an in person meeting with the Consultant on around 15 May 2025 appears to be at odds with other evidence before the Tribunal, including the emails from the Consultant which are attached to Mr McEvoy’s statutory declaration. The first of these emails is dated 15 May 2025 at 7.57 am and was sent by the Consultant to Mr McEvoy using an email address which included “@mackelectrical”.

172. The email commences “Please find a copy of our cost agreement and invoice to assist you through the liquidation process*.**”* The invoice attached to that email is dated 15 May 2025 with the reference “Liquidation”. The description on the invoice states “Assistance with Liquidation of [MES]” in the sum of $33,000 with the deposit of $10,000 to be paid that day, and the remainder by weekly instalments. It also refers to meeting with Mr McEvoy the following day at “Tim’s office” to sign “the documents”. This email suggests that Mr McEvoy had already made the decision to liquidate MES prior to 15 May 2025.

173. Also attached to the statutory declaration is a copy of the checklist that was emailed to him by the Consultant at 2.16 pm on 15 May 2025, headed “New Company Set Up”. The attachment to the email includes a “few task**s to keep in mind when setting up new companies” and includes providing staff with new staff contracts, updating email addresses and footers in the new company name, discussing the transfer of “Motor Vehicle/Plant & Equipment” with Wisdom Consulting and not to “forget to Transfer rego’s”.

174. Whilst there was no evidence of the email address used by MES, it is noted that the email address used for Mr McEvoy by the Consultant on 15 May 2025 was “@mackelectrical”.

175. Attached to Mr McEvoy’s statutory declaration is a Valuation Report relating to Plant and Equipment undertaken by Hymans that was sent to him by the Consultant on 27 May 2025. The Valuation Report states that it was prepared on behalf of the Consultant. It is evident that whilst the “valuation effective date*”* is 21 May 2025 and the intended use and purpose is “Restructuring”, the Valuation Report indicates that the vehicles were inspected on 15 May 2025.This is the same day that the checklist was emailed to Mr McEvoy at 2.16 pm.

176. The evidence before the Tribunal, especially that adduced on behalf of the Applicant in relation to Mr McEvoy’s decision to liquidate MES, leads to a confusing, and sometimes contradictory, account of what occurred, particularly from around 1 April 2025 up until the date of liquidation of MES on 19 May 2025.

177. As a result, it is not possible for me to be satisfied as to the exact time that Mr McEvoy made the decision to liquidate MES, what steps were taken by Mr McEvoy leading up to that decision and the reasons for that decision. In the circumstances and having regard to the evidence before the Tribunal, it follows that I am not able to be satisfied that Mr McEvoy took all reasonable steps to avoid the liquidation of MES.

Conclusion

178. Section 33C(2) of the HBA requires the decision maker to be satisfied in relation to each of the four matters set out in that section. It follows from the findings that I have made that I am not satisfied in relation to the matters set out in either s 33C(2)(b) or s 33C(2)(c) of the HBA and accordingly that a contractor licence cannot be issued to the Applicant.

Issue 3 - Discretion under s 33B(5) of the HBA

179. I have had regard to the additional submissions and caselaw referred to by the parties in relation to the discretion under s 33B(5) of the HBA and accept that the discretion under s 33B(5) of the Act is separate to the discretion imposed by s 33C(2) of the HBA and this reflects the view taken by the Tribunal in Veselinovic at [97].

180. On the facts of this matter, I have not been satisfied on the evidence before the Tribunal that the factors in 33C(2) of the HBA have been made out and am satisfied that a contractor licence cannot be issued to the Applicant under this section. In considering the discretion under s 33B(5) of the HBA, I am of the view that it is appropriate to have regard to these findings and the supporting evidence and I give them significant weight in my exercise of the discretion.

181. I have also had regard to whether there is any further information provided by Mr McEvoy that would be sufficient to outweigh these factors, such that it would be it appropriate for the Tribunal to exercise the discretion to issue the contractor licence to the Applicant. In so doing, I have considered all of the information provided by Mr McEvoy in these proceedings and to the submissions made by Counsel for the Applicant for the exercise of this discretion These submissions included that Mr McEvoy has good instincts, has been subject to bad fortune, which is unlikely to occur again, and that he now has a better understanding of financial matters and his obligations as a director.

182. I accept that Mr McEvoy experienced significant emotional distress following the death of his brother and through the subsequent criminal proceedings, and that this impacted on MES during the period from 2016 to 2019. In my consideration of s 33C(2) which is set out above, I have had regard to the often confusing and at times contradictory accounts provided by Mr McEvoy about the financial issues affecting MES, the circumstances leading to the liquidation of MES and the operation of the Applicant.

183. In my view, this consideration is also relevant to my consideration of the s 33B(5) discretion. On the information provided by Mr McEvoy in these proceedings, I am not able to be satisfied that Mr McEvoy has demonstrated that he has good instincts, or that he has acted on them. As previously referred to, whilst I accept that Mr McEvoy has gained new learnings following his experience with MES and the subsequent liquidation, I am not able to make a finding as to the extent of those learnings or to be satisfied that he now has a better understanding of financial matters and his obligations as a director.

184. In my view, the limited weight that I accord to these further matters is not sufficient to allow me to make a finding that it would be appropriate to exercise the discretion under s 33B(5) of the HBA and to issue the contractor licence to the Applicant, especially given that the HBA is consumer protection legislation.

185. In reaching this view, I have considered the imposition of conditions but I am not satisfied on the evidence before the Tribunal, that the imposition of any form of condition or conditions would make it appropriate to issue a contractor licence to the Applicant.

Conclusion

186. It follows from my findings above that the correct and preferable decision in this matter is to affirm the Decision of the Respondent and to refuse the Application pursuant to s 20 of the HBA.

Order

187. The Decision under review 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. Registrar