Manassa v Commissioner for Fair Trading

NCAT Occupational|2024-06-05

Background

Mr Mario Manassa applied for an owner-builder permit under the Home Building Act 1989 (the HB Act). The reason Mr Manassa applied for the permit was so that he could build a dual occupancy (duplex) for his immediate and extended family. Development consent for the duplex was granted by Cumberland City Council.
The Commissioner for Fair Trading refused Mr Manassa's application on 11 November 2023 because the Commissioner was not satisfied Mr Manassa had demonstrated special circumstances exist to enable a permit to be granted. At Mr Manassa's request the Commissioner conducted an internal review and on 21 November 2023 the Commissioner's decision was affirmed.
Mr Manassa seeks review of the decision not to grant him a permit.

Material before the Tribunal

Mr Manassa provided his application for review to the Tribunal attaching the reasons for the original decision and the internal review (exhibit A1). He also provided submissions and letters from his mother and wife outlining their family circumstances (exhibit A2). Mr Manassa gave oral evidence, was cross examined and made oral submissions at the hearing.
The Commissioner provided a bundle of documents (exhibit R1) and written submissions (exhibit R2) to the Tribunal and Mr Manassa. The Commissioner also made oral submissions at the hearing.

Jurisdiction

The Tribunal has jurisdiction to review an administratively reviewable decision: s 55 of the Administrative Decisions Review Act 1997 (the ADR Act). Section 83B of the HB Act provides that applications may be made to the Tribunal for administrative review under the ADR Act of decisions to refuse authorities under the HB Act. I am satisfied the Tribunal has jurisdiction to hear and determine this application for review.

Administrative Review

When considering an application for review the Tribunal is to decide what is the correct and preferable decision having regard to the material before it (s 63(1) of the ADR Act). In doing so the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision (s 63(2) of the ADR Act).
The time at which the correct and preferable decision is determined is when Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25]. In conducting a review the Tribunal is not restricted to consideration of the material that was before the Commissioner but may have regard to any relevant material before the Tribunal at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31.
The Tribunal may decide to affirm or vary the administratively reviewable decision, or set it aside and either substitute a different decision or remit the matter to the administrator for reconsideration: see s 63(3) of the ADR Act.

Applicant's case

Mr Manassa contends he should be granted a permit because special circumstances apply to him as a result of his personal circumstances and intentions including that he intends to live in one half of the duplex and have his parents, who require significant support, live in the other half. He does not intend to subdivide or sell the duplex and he can only afford to build by relying on family members who are tradespeople giving him discounts and access to trade prices instead of using a builder.

Respondent's case

The Commissioner contends Mr Manassa's circumstances are neither 'unusual, uncommon, nor exceptional' and are therefore not special circumstances because many people make arrangements to support family via a dual occupancy. Further, the Commissioner contends Mr Manassa has not provided sufficient objective evidence to establish financial hardship and that to overcome privacy issues, Mr Manassa could move his immediate family into the house currently occupying the land where the duplex is intended to be built. The Commissioner also challenges Mr Manassa's intentions to stay in the duplex as a retirement property because he is decades away from retirement.

Legislation

The HB Act provides for owner-builder permits allowing unlicenced people to do certain home building work as defined under the HB Act (ss 29, 30, 32 and cl 2 of Schedule 1 to the HB Act).
Section 32(1A) of the HB Act provides a limit on the issue of owner-builder permits: An owner-builder permit must not be issued to authorise its holder to do residential building work that relates to a dual occupancy unless the Secretary is satisfied that special circumstances exist that justify the owner-builder permit authorising its holder to do that work. The Secretary may issue guidelines as to the circumstances that will be considered to be special circumstances for the purposes of this subsection.
No guidelines have been issued under s 32(1A) of the HB Act.

Issue for resolution

The key issue for resolution in this review is whether special circumstances exist that justify Mr Manassa being granted an owner-builder permit to construct a duplex on his land in Merrylands.

Applicant's Evidence

Mr Manassa lives with his wife, children and parents at his parent's home in Merrylands. His intention is to build a duplex on land he owns nearby in Merrylands as his family's 'dream home'. He, his wife, a young child, a newborn and any future children would live in one half of the duplex and his parents, who require significant support, would live in the other half. He does not intend to sell any part of the duplex nor to subdivide the land.
Mr Manassa's evidence was that the house currently on the land he owns does not suit this family and their preferred and needed living arrangements, in part because is not big enough for them to live together with appropriate privacy.
Mr Manassa has qualifications in building design. He has family members who are tradespeople who would give him discounts and access to trade prices, which is why he thinks being an owner-builder would be more affordable for him than using a builder. When questioned Mr Manassa, who was self represented, explained he did not have a financial plan for the proposed construction because he considered the first step to be obtaining a permit. He then intended to approach a bank for financing and may require family assistance to pay for construction. The $600,000 estimate for the cost of construction of the duplex was obtained for the purposes of the development application by using a calculator based on averages for square meterage on the relevant Council website.
I find Mr Manassa to be an honest and reliable witness, he answered questions openly as best he could.
Further, Mr Manassa provided unchallenged letters from his wife and mother detailing their current living arrangements, their challenges and difficulties and their intention to live side by side in the duplex to support each other, consistent with the evidence of Mr Manassa.
The Commissioner sought to raise 'concerns' as to Mr Manassa's intentions in part because he had not disclosed to the Commissioner that the house currently on his land in Merrylands is rented to a third party. I do not find Mr Manassa and his family currently living with his parents instead of living in a house he intends to demolish to be relevant to the issue for resolution in this review, particularly given the evidence of the need for mutual support between Mr Manassa, his immediate family and his parents.

Meaning of special circumstances

The term special circumstances in this context has been considered by this Tribunal in Hammoudi v Commissioner for Fair Trading [2016] NSWCATOD 57 (Hammoudi), McGufficke v Commissioner for Fair Trading [2022] NSWCATOD 84 (McGufficke), Oslear v Commissioner for Fair Trading [2022] NSWCATOD 110 (Oslear) and Khouri v Commissioner for Fair Trading [2023] NSWCATOD 135 (Khouri).
As set out in Hammoudi (at [64]) relevant considerations include: …The Tribunal refers to a number of factors in interpreting the meaning of special circumstances: • An understanding of the term "special circumstances" generally; • the purposes of the Home Building Act 1989; • the purposes of an owner-builder permit in the context of the HBA; • the legislative purpose behind the amendment to the HBA in section 32(1A) against the issue of owner builder permits for dual occupancies; • the scope of special circumstances as set out in the Minister's Second Reading Speech in May 2014; and • the Applicant's claim for special circumstances in the context of the permit sought.
In Hammoudi (at [66]-[67]) the Tribunal also discussed Beadle v Director General of Social Security [1984] AATA 176 and Topp and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 99 at [21] and [38]-[40] concluding that special circumstances could exist if something 'unfair, unintended or unjust' had occurred which was 'out of the ordinary' and that the decision maker's discretion in this regard was broad.
The cases cited (at [22] above) all noted the Parliament's intention in imposing the special circumstances limitation on owner-builder permits for dual occupancies was to ensure appropriate controls on building and construction work and to avoid development of dual occupancies for commercial purposes and/or financial advantage by owner-builders. In McGufficke, the Tribunal noted the intention to protect consumers who might purchase these properties (at [48]) and that the burden of demonstrating special circumstances exist lies with an applicant (at [55]).
In the Second Reading Speech in May 2014, the Minister stated: Owner-builders will not be able to obtain a permit for work on a dual occupancy unless the commissioner is satisfied that special circumstances exist, such as where a family could demonstrate legitimate non-commercial reasons for the work or where refusing the permit could cause family hardship.
As stated in Oslear (at [40]), also cited in Khouri: The fact that an applicant intends to live in the principal dwelling of the dual occupancy does not constitute a special circumstance. To be eligible to be issued with an owner builder permit with respect to a dual occupancy s 81(2)(c) requires that an applicant must intend to live there. For special circumstances to exist, something beyond a non-commercial objective and continued residence must be shown to exist. What that something may be will depend on each case. It would be unwise to seek to anticipate such circumstances before they arise. In this case, beyond his insistence that no commercial purpose underlies the application, and that he will live in the new dwelling with his family, the applicant has not pointed to any other factor that amounts to a special circumstance.
On the material before the Tribunal, I am satisfied Mr Manassa does not have a commercial objective for building the duplex. Further, his intention, based on his family arrangements and demonstrated need for mutual support, is for the other side of the duplex to be a residence for his parents and is not to sell either part of the duplex nor to subdivide.
At the hearing and in submissions, the Commissioner focussed particularly on Mr Manassa's retirement plans, I infer with Hammoudi in mind, noting retirement was decades away for both Mr Manassa and his wife. In my view, the length of working life left for Mr Manassa does not detract from his and his family's current stated intention to build a 'dream home' and live in the duplex together well into the future.
Noting the facts of the cases cited (at [22] above) and the submissions of the Commissioner, while more fulsome personal financial information from Mr Manassa could have assisted the Tribunal in considering financial hardship, it is not the only type of evidence that can address this consideration.
I am satisfied Mr Manassa's personal circumstances give him an opportunity to build using his family that should enable savings and that refusal of the owner-builder permit will cause unfair financial hardship to Mr Manassa if he cannot access those discounts and savings.
On the material before the Tribunal, I am therefore satisfied special circumstances under s 32(1A) of the HB Act apply to Mr Manassa in this matter.
It follows the decision under review should be set aside and instead the correct and preferable decision is that Mr Manassa be granted an owner-builder permit.

Orders 1. The decision under review is set aside. 2. An owner-builder permit under the Home Building Act 1989 is to be granted to the Applicant.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 June 2024

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Judgment (12 paragraphs)

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