Nassif v Commissioner of Fair Trading; Toplace Pty Ltd v Commissioner of Fair Trading

NCAT Occupational|2023-06-29

Reasons for Decision

On 13 December 2022, the Tribunal received two applications for administrative review of two decisions made by the Commissioner for Fair Trading (the Commissioner). Jean Khazen Nassif, the applicant in matter 2022/0375413, is a director and building supervisor of Toplace Pty Ltd, who is the applicant in application 2022/0375423.
Application 2022/00375413 is for administrative review of a decision made by the Commissioner on 2 December 2022, cancelling Mr Nassif's supervisor certificate no. 21450S and disqualifying him from holding an authority or being a member of a partnership or officer of a corporation under the Home Building Act 1989 (NSW) (HB Act) for a period of ten years (the Nassif decision).
Application 2022/0375423 is for administrative review of a decision made by the Commissioner on 1 December 2022 cancelling Toplace Pty Ltd's contractor licence and permanently disqualifying them from being the holder of any authority under the HB Act (the Toplace decision).
On 5 January 2023, pursuant to s 60 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act), I ordered that each of the decisions of the Commissioner be stayed until determination of the administrative review applications, on the condition that the applicants would not enter into further contracts to do residential building work without the consent of the respondent or leave of the Tribunal: Nassif v Commissioner for Fair Trading; Toplace Pty Ltd v Commissioner for Fair Trading [2023] NSWCATOD 4.
On 27 April 2023, the Commissioner made an application for the Tribunal to revoke the stays on the decisions. The parties each provided written and oral submissions in that regard. The Commissioner also provided a statement dated 9 June 2023 from Mitchell Fleming, an officer for NSW Fair Trading (Fair Trading), and a statement dated 11 June 2023 from Detective Senior Constable Wayne Moore. The applicants provided affidavits from Charbel Barakat, Norman Raad, Nilanga Seneviratne and Monica Ebeed, each of them an employee of Toplace Pty Ltd. The affidavits were all sworn on 28 June 2023.

Background

On 24 March 2023, Mr Nassif's supervisor certificate lapsed. The lapsing of Mr Nassif's supervisor certificate resulted in Toplace Pty Ltd not having a current nominated supervisor.
On 3 April 2023, an application was lodged with Fair Trading for Charbel Barakat to be a nominated supervisor for Toplace Pty Ltd. Mr Barakat and Mr Nassif as the director of Toplace Pty Ltd had signed the application.
At the time of making the application to be a qualified supervisor for Toplace Pty Ltd, Mr Barakat was already a nominated supervisor for Cboss Project & Consulting Pty Ltd. Attached to the application was an "Additional Details Form 6" for Mr Barakat to be approved as a nominated supervisor for more than one contractor licence (application for dual nomination).
On 2 May 2023, representatives of Fair Trading conducted an interview with and Mr Barakat and his lawyer regarding the application for dual nomination. Mr Fleming has annexed a transcript of that interview to his statement.
On 31 May 2023, the Secretary determined to refuse the dual nomination. At the hearing, the parties confirmed that an application had been made for internal review of the decision refusing the dual nomination.
On 23 June 2023, Mr Barakat sought to be removed as a nominated supervisor for CBoss Project & Consulting Pty Ltd to allow him to become a nominated supervisor for Toplace Pty Ltd only.

Principles in relation to a stay and the decision to grant the stays

The Tribunal has power to make an order "staying or otherwise affecting the operation of the decision under review": ADR Act, s 60(2). Section 60(3) of the ADR Act empowers the Tribunal to make orders, if it considers that it is desirable to do so after considering: 60 Operation and implementation of decisions pending applications for administrative review (3) … (a) the interests of any persons who may be affected by the determination of the application, and (b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and (c) the public interest.
In QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAP 113, the Appeal Panel of this Tribunal summarised the considerations which should be applied when considering a stay in matters such as this as including (at [32]): "(1) whether the order is appropriate to secure the effectiveness of the determination of the application for review: ADR Act, s 60(2); (2) whether the order is desirable taking into account: (a) the interests of any persons who may be affected by the determination of the application for review: ADR Act, s 60(3); [Loveday v Commissioner for Fair Trading [2018] NSWCATAD 80 (Loveday)] at [10]; Re Scott and Australian Securities and Investments Commission [2009] AATA 798 (Re Scott) at [4]; (b) any submission made by or on behalf of the administrator who made the decision to which the application relates: ADR Act, s 60(3)(b); Loveday at [10]; Re Scott at [4]; (c) the public interest: s 60(3)(c), ADR Act, Loveday at [10], Re Scott at [4]; (3) the applicant's prospects of success on the application for review: AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 (AVS Group) at [129]; Loveday at [10] and [11], Re Scott at [4]."
Under s 60(4) of the ADR Act, the Tribunal may vary or revoke the order by another order.
In my reasons for the decision to initially grant the stays (Nassif v Commissioner for Fair Trading; Toplace Pty Ltd v Commissioner for Fair Trading [2023] NSWCATOD 4), I made the following relevant findings (at [55]-[60]): "55. Having considered the matters referred to in s 60(3) of the Administrative Decisions Review Act, I consider it desirable to make the orders staying the Toplace and Nassif decisions, to secure the effectiveness of the determination of the applications. I have considered the submissions made by the parties and have found that the decisions will affect the interest of: (1) The applicants, specifically arising out of breach of present finance facilities, purchase contracts and deeds and arrangement which Toplace Pty Ltd or its associated special purpose vehicles have entered. If the decisions take effect, it will have a detrimental financial effect on Toplace Pty Ltd and its ability to continue to operate. (2) Parties to contracts presently exchanged in relation to the current developments and those who are parties to deeds and arrangements for rectification works on past projects. (3) Employees of Toplace Pty Ltd and subcontractors presently engaged on current projects and for rectification works. 56. I am also mindful of the size and scope of the developments presently on foot and the number of people that the Toplace and Nassif decisions will affect. 57. The Tribunal proceedings are administrative review proceedings, where the Tribunal's power is that conferred by s 63 of the Administrative Decisions Review Act and the task of the Tribunal will be to decide what is the 'correct and preferable decision' having regard to any relevant factual material and the applicable law. 58. This is only an interim application, the evidence in relation to the Nassif and Toplace decision has not yet been provided, challenged or conclusively examined by the Tribunal. There will need to be in this case, an evaluation of the seriousness of the alleged breaches and the evidence overall. At this stage of the proceedings, it is not possible to conclusively determine whether there is a proper basis for findings that the breaches occurred or whether the applicants are guilty of improper conduct or not fit and proper persons to hold a licence. 59. In relation to the public interest, I am satisfied that the powers under the RAB Act, to some degree, counterbalance any potential harm that may be done to prospective purchasers for the current projects. I accept the submission of the applicants, that the applicants remain under some scrutiny in relation to the building works and the RAB Act provides a range of powers to ensure the building work is done to standard. 60. However, to further limit any potential damage to the wider public interest, I have decided to impose a condition on the stay orders. The applicants submitted that while [a] condition was not necessary, it was open to the Tribunal to stay the decisions on condition that the applicants do not enter new contracts to undertake building works. Given the extent of the defects that are alleged against the applicants, the time that it may take for these matters to be finalised and the possibility that the applicant may be ultimately unsuccessful in these review applications, I am of the view that such a condition should be imposed to protect the public interest."
The Commissioner submits that the determination about whether to revoke the stays requires the same considerations as the decision to grant the stay. The applicants submit that the more typical revocation application is where there has been a breach of a condition of a stay. The applicants refer to the decision in Miller v SafeWork NSW [2016] NSWCATAD 238 where the application for revocation of the stay was solely on the basis that a condition of the stay had not been complied with. The Tribunal "decided not to revoke the stay because even though non-compliance with the condition is a serious matter, there is no suggestion that there is any risk to public safety if he continues to hold the licence" (at [1]). The applicants submit that in contrast, in this case, the Commissioner does not allege any breach of the conditions imposed under the stays made on the Toplace decision and Nassif decision.
The applicants also refer to a Commonwealth Administrative Appeals Tribunal decision of Australian Institute of Technical Training Pty Ltd and Minister for Education and Training [2018] AATA 5392. Those proceedings involved a consideration of s 41(3) of the Administrative Appeals Tribunal Act 1975 (Cth) which contains a similar power to s 60(4) of the ADR Act. It was determined that a Tribunal should be reluctant to become involved in a re-run of the stay application. The Tribunal stated at [59]-[60]: "59. There are several reasons for adopting this approach to applications for variation or revocation of a stay order. Firstly, if [an approach that stays can simply be re-run] is adopted in all cases there is a risk that parties may be minded to make further applications for such orders without any restriction. This could be undertaken for a variety of reasons including tactical considerations or to simply attempt to wear one party to the application down. Tactical considerations might also include on occasion an approach to test the other side's evidence or engage in a 'fishing expedition' for some greater or limited extent. This could be to bolster a party's case or see just what the strength of the opponent's case really is. Secondly, as in this case there is the risk that significant resources and time of both the Tribunal and the parties may be devoted to the application rather than the final hearing and determination of the proceeding. ... 60. For these reasons there should not be in this case a complete rehearing and consideration of the issues applicable to a stay. That has already been done. The appropriate approach to adopt is to identify whether there have been facts or circumstances established that enliven the jurisdiction to make an order of the type contemplated by s 41(3) justifying a variation or revocation of the stay. Those facts or circumstances will of course vary between each case. However, it should generally be confined to post stay order conduct or other matters that have arisen since they were made. They could include as alleged by the Respondent continuing non-compliance with terms of an existing stay. It may involve changed circumstances in the functioning or day-to-day operation of a Registered Training Organisation such as the Applicant in that the existing orders affect its capacity to adhere to the objectives of the both the NVR Act and the ESOS Act. There may be a continuing or subsequent impracticality with respect to the application of the terms of the stay that justify revocation or variation."
The applicants submit that the revocation should be determined on the basis that the Commissioner has the onus to demonstrate why it is in the public interest to revoke the stay on the Nassif decision and Toplace decisions.
I reject the submission that the Tribunal should only revoke a stay order in circumstances in which there is a breach of conditions of the stay. A breach of a stay condition may be one circumstance that may constitute a reason to revoke a stay. However, s 60(4) of the ADR Act does not limit revocation of a stay only for breach of a condition of a stay. There may be other circumstances that arise after the decision is impose the stay. A revocation of a stay application should not simply be a re-run of the stay application. To bring an application for the revocation of a stay, simply repeating the same matters that a party raised at the time of making the stay, would amount to an abuse of process. However, that is different to bringing an application for revocation of the stay in circumstances where conduct or other matters have arisen, since the making of the stay, which were not in existence or known at the time the Tribunal imposed the stay.
The Commissioner has applied for revocation of the stay on the basis that new evidence has emerged including:

Mr Nassif's supervisor certificate has lapsed.
A bench warrant has been issued for Mr Nassif's arrest in respect of an offence of dishonestly obtaining a financial advantage in the amount of a $150 million loan relating to contracts of the sale of land for the Skyview development.

Further, the nomination of Mr Barakat as the nominated supervisor of Toplace Pty Ltd was not a consideration that was before the Tribunal at the time of making the stays orders on the decisions. Those matters all occurred after the Tribunal imposed the stay on the decisions.
Therefore, new matters have arisen since the Tribunal imposed the stays, which were not before the Tribunal at the time of determining the stay application. Therefore, in determining whether to revoke the stay, I must continue to consider:

whether the stay remains appropriate to secure the effectiveness of the determination of the application for review, and
whether it remains desirable for the stay to remain, taking into account the interests of any persons who may be affected by the determination of the application for review, any submission made by or on behalf of the administrator who made the decision to which the application relates, the public interest ,and the applicant's prospects of success on the application for review.

Consideration

The Commissioner submits that the Tribunal should revoke the stays in respect of both proceedings because Mr Nassif has been overseas since 22 December 2022 and continues to be overseas, without any return date pending. There is also a bench warrant for Mr Nassif's arrest. Mr Nassif no longer holds a supervisor certificate and Toplace Pty Ltd has been without a nominated supervisor for its contractor licence since 24 March 2023. The Commissioner submits, in the alternative, if the Tribunal decides to revoke the stay on the Nassif decision, then the stay should continue on the Toplace decision, on the condition that Mr Barakat be directed to be the nominated supervisor of Toplace Pty Ltd.
The Tribunal has listed the final hearing of the substantive administrative review application to commence on 16 October 2023. The applicants oppose the application for the revocation of both stays. The applicants submit that there are no allegations of any breach of the stay condition, the final hearing is imminent, and the reasons for which the Tribunal granted the stay in the first place still apply. In relation to Mr Nassif's lapsed supervisor certificate, the applicants submit Mr Nassif presents no danger to the public because he does not have a nominated supervisor license. They submit that the stays should remain in force to avoid the reputational consequences that might follow to each of the applicants and because the applicants should have the benefit of an administrative review of the decisions. The applicants submit that Mr Barakat is now the nominated supervisor for Toplace Pty Ltd.

Is Mr Barakat the Nominated Supervisor for Toplace Pty Ltd?

In her affidavit, Monica Ebeed, a human resources manager employed by Toplace Pty Ltd, states that the two forms associated with the nomination of Mr Barakat as the nominated supervisor were lodged both electronically and physically at Service NSW Burwood on 23 June 2023.
The cover sheet for the application forms includes the following words in the comments section: "Removing nominated supervisor from licence"
However, in the form itself, the following box has been checked and the details in bold have been inserted: "I am already nominated as the supervisor for an existing company or partnership contractor licence and WISH TO RESIGN as the nominated supervisor for Charbel Barakat (insert licensee's name) which holds licence number 305817C (insert licence number)."
Licence number 305817C does not belong to CBoss Project & Consulting Pty Ltd; it is the licence number for Mr Barakat. I accept that the incorrect naming and license number on the form was an inadvertence.
Handwritten on top of the front page of the form is the number 319334C, which is the licence number for Cboss Project & Consulting Pty Ltd.
Counsel for the Commissioner submitted at the hearing that the form did not constitute a resignation by Mr Barakat from CBoss Project & Consulting Pty Ltd because the details on the form were incorrect. Counsel for the applicant submitted that given the comments on the cover sheet and the correct licence number handwritten on the top of the form, the correct details could be inferred and that the form does constitute a resignation by Mr Barakat from Cboss Project & Consulting Pty Ltd.
Section 7 of the Licensing and Registration (Uniform Procedures) Act 2002 (NSW) (Licensing Act) provides as follows: 7 Applications for amendment of licences (1) This section applies to any licence that, pursuant to the relevant licensing legislation, may be amended. (2) An application for the amendment of a licence may be made to the relevant licensing authority by the licensee at any time while the licence is in force.
The resignation of Mr Barakat as the nominated supervisor for the contractor licence of CBoss Project & Consulting Pty Ltd would constitute an amendment to the contractor licence as provided for in s 7 of the Licensing Act.
Section 12 of the Licensing Act provides the following relevant procedure for the making of such applications: 12 Procedure for making applications (1) An application may be made in writing or by means of electronic communication. … (4) If made in writing, an application - (a) must contain such information as is required by the relevant application form or as is otherwise required by or under the relevant licensing legislation, and (b) must be signed - (i) by the applicant, and (ii) in the case of an application for the transfer of a licence, by the proposed transferee, and (c) must be lodged with, or sent to, the relevant licensing authority. (5) If made by means of electronic communication, an application - (a) must contain such information as is required by the relevant application form or as is otherwise required by or under the relevant licensing legislation, and (b) must be authenticated, as required by the relevant licensing authority - (i) by the applicant, and (ii) in the case of an application for the transfer of a licence, by the proposed transferee, and (c) must be lodged with the relevant licensing authority in accordance with that authority's information technology requirements for the receipt of electronic communications. (6) A single application may be made to the same licensing authority in relation to more than one licence.
Mr Barakat did complete the relevant application form to resign from CBoss Project & Consulting Pty Ltd. However, the comments on the cover sheet do not form part of the application form. The application form did not contain the details as required in accordance with s 12 of the Licensing Act. The fact that Cboss Project & Consulting Pty Ltd's licence number has been handwritten on the top of the page, presumably by the clerk that received the form, does not cure the error.
On that basis, I am not of the view that Mr Barakat has resigned his position as nominated supervisor of Cboss Project & Consulting Pty Ltd, and on that basis, I do not have evidence before me that Mr Barakat is presently the nominated supervisor for Toplace Pty Ltd.
Mr Barakat could resubmit a new application with the correct details and that, on the resignation taking effect, he could become the nominated supervisor of Toplace Pty Ltd without requiring the permission of the Secretary. In any event, even if I am wrong regarding the status of Mr Barakat as nominated supervisor for Toplace Pty Ltd, I have proceeded to consider the applications to revoke the stays on the basis that Mr Barakat did become a nominated supervisor on 23 June 2023.

Attempts to renew the Nassif Supervisor Certificate and to have Mr Barakat appointed as the Nominated Supervisor for Toplace Pty Ltd

Nilanga Seneviratne, an accounts manager contracted by Toplace Pty Ltd, sets out in his affidavit details of attempts made by Mr Nassif to renew his supervisors certificate. Mr Seneviratne states that in or about January 2023, in response to a renewal notice, Mr Nassif directed him to assist him in renewing his qualified supervisor certificate. Mr Seneviratne states that in late January 2023, Mr Nassif, with his assistance, attempted to carry out the renewal online and he was prevented from doing so and was instead directed to phone Fair Trading.
Following a further failed attempt with Mr Nassif to renew the licence on 6 March 2023, Mr Seneviratne subsequently called Fair Trading and he was told that the renewal could not be done online due to pending disciplinary action against Mr Nassif and Toplace Pty Ltd. The renewal application could however proceed by lodging an application in person at Service NSW.
Mr Seneviratne subsequently arranged for the paper form to be signed by Mr Nassif and this occurred sometime between 6 March 2023 and 22 March 2023. Mr Seneviratne states that on 22 March 2023 he attended Service NSW and attempted to lodge the renewal form and payment in person. Mr Seneviratne states that the staff member rejected the lodgement and stated words to the effect: "Mr Nassif must attend Service NSW himself in person to answer questions".
Mr Seneviratne states that he subsequently handed over the forms to persons holding power of attorney for Mr Nassif, namely Ashlyn Nassif and Sarkis Nassif, and they were also unable to lodge the forms because they were informed that Mr Nassif needed to attend in person and submit to questioning.
Mr Seneviratne states that the signed renewal forms have since been misplaced and he has been unable to locate a copy of them prior to 29 May 2023.
In her affidavit, Ms Ebeed states that she assisted Mr Barakat with the necessary paperwork for the dual nomination application and that on 28 March 2023 she called Fair Trading to make sure the nomination form was lodged correctly. Ms Ebeed states that she asked a person named "Adnan" from Service NSW, whether Toplace Pty Ltd could continue doing work while endeavouring to appoint a new nominated supervisor. That enquiry was based on information published on the "Nominated Qualified Supervisors" section of the Fair Trading website, which provides: "If you go without an acceptable nominated supervisor for more than 30 days, without getting consent from [Fair Trading] first, your licence will be cancelled".
Ms Ebeed states that Adnan responded: "Yes, there won't be a problem".
Ms Ebeed states that she made a couple of follow up calls between 3 May 2023 and 31 May 2023 seeking to confirm the status of the dual nomination application. On 31 May 2023, the application for dual nomination was refused by the Secretary.
In his statement, Detective Senior Constable Moore, who is the officer in charge of a NSW Police, Organised Crime Squad investigation, states that on 9 December 2022, Mr Nassif departed Sydney for Dubai and his original return ticket was scheduled for 29 January 2023. Mr Nassif did not board that flight or subsequent flights and does not have a current booking to return to Sydney. On 8 June 2023, a bench warrant was issued by Downing Centre Local Court for Mr Nassif for an offence pursuant to s 192E of the Crimes Act 1900 (NSW), for dishonestly obtaining a financial advantage by deception in relation to a Westpac loan of $150 million for the construction of Buildings C, D & E of the Skyview development at 51-55 Old Castle Hill Road, Castle Hill, by submitting contracts of sale which were not bona fide to meet a $10.5 million qualifying presales condition precedent set by Westpac Bank.
I accept that Mr Nassif and others made some attempts to renew his supervisor certificate and subsequently have Mr Barakat nominated as a supervisor for the contractor licence of Toplace Pty Ltd. However, it must have come to Mr Nassif's attention, since at least January 2023 when Mr Seneviratne began assisting him to renew the supervisor licence, that Mr Nassif's supervisor licence was due to lapse on 23 March 2023. The applicants submit Fair Trading have been obstructive in relation to Mr Nassif's attempts to renew his supervisor certificate by not allowing him to lodge the renewal application online and by requiring Mr Nassif to attend in person to renew the supervisor certificate. Mr Nassif should have been on notice since about 22 March 2023 when Mr Seneviratne was told by Fair Trading that Mr Nassif was required to attend in person to renew his supervisor licence and that he was required for questioning.
Prior to the lapsing of his supervisor licence on 23 March 2023, Mr Nassif had been out of the country since 22 December 2022. At the time I granted the stay applications, it was not apparent that Mr Nassif would be away from the country for such a long period of time or that others would be made responsible for supervising the residential building work on behalf of Mr Nassif.
Part 3 of the HB Act deals with licences and certificates.
Section 33C(1)(a) of the HB Act provides that a contractor licence must not be issued unless the Secretary is satisfied that: 33C Additional requirements for obtaining contractor licences (1) … (a) the applicant has, or proposes to have, such numbers of nominated supervisors for the contractor licence as the Secretary considers are needed to ensure that all work for which the contractor licence is required will be done or supervised by qualified individuals, …
Section 33C(8) of the HB Act prevents an individual from being a nominated supervisor for more than one contractor licence unless the Secretary: (a) is satisfied that special circumstances exist that will ensure that the individual, either alone or in conjunction with one or more other nominated supervisors, will supervise all work done under contracts for which each contractor licence is required, and (b) gives written permission.
Those provisions demonstrate that the regulatory scheme is concerned with ensuring that a suitably qualified nominated supervisor supervises residential building work. The fact that the nomination of an individual to be a nominated supervisor for more than one contractor licence requires the permission of the Secretary demonstrates that the legislation is concerned with ensuring that nominated supervisors have the capacity and are available to supervise residential home building works. The respondent provided no reason as to why they required Mr Nassif to attend in person to renew his supervisor certificate. Regardless, Mr Nassif's supervisor certificate did lapse on 23 March 2023.
Despite the attempts which have been detailed by Ms Ebeed, Mr Seneviratne and Mr Barakat, I find that Mr Nassif did not act with urgency in ensuring that a nominated supervisor was appointed for Toplace Pty Ltd since his supervisor certificate lapsed on 23 March 2023. I note that a request has been made for internal review of the decision to refuse Mr Barakat's application to be a dual nominated supervisor. The application for Mr Barakat to be a dual nominated supervisor was not made until 3 April 2023, that was after the nominated supervisor certificate of Mr Nassif had lapsed. It was always open to Toplace Pty Ltd to nominate a supervisor who would only be the nominated supervisor for Toplace Pty Ltd. That would not have required permission from the Secretary. It should have always been apparent from the legislation that Mr Barakat's dual nomination application required permission, and that the Secretary would need to be satisfied that Mr Barakat would have capacity in that regard and there was at least some risk that the application could be refused. It was also always open to Mr Barakat to immediately resign being a nominated supervisor for CBoss Project & Consulting Pty Ltd. Yet that application was not made until 23 June 2023, almost a month after the dual nomination application was refused on 31 May 2023. Even if I were to find that Mr Barakat was now the nominated supervisor since lodging his resignation on 23 June 2023, Toplace Pty Ltd had no nominated supervisor for its contractor licence for a period of 3 months since 23 March 2023 to 23 June 2023.
There is no evidence before the Tribunal regarding whether Mr Nassif intends to return to Australia and if so when. Regardless of whether Mr Barakat is now the nominated supervisor for Toplace Pty Ltd, Mr Nassif remains the director of the Corporation.

Bench warrant for Mr Nassif's arrest

I have little detail about the offence for which Mr Nassif will be charged, except that it related to dishonestly obtaining financial advantage by deception in relation to a Westpac loan of $150 million for the construction of Buildings C, D & E of Skyview development at 51-55 Old Castle Hill Road, Castle Hill, by submitting contracts of sale which were not bona fide to meet a $10.5 million qualifying presales condition precedent set by Westpac Bank. When I made my decision granting the stay applications, I note that in my reasons for granting the stays, I found that the Skyview project was one of two projects that was currently under construction (at [41]) and that the stay applications were granted, in part, to allow construction on those development to continue and on the basis of the evidence that cancellation of the licence would jeopardise a loan facility from Westpac (at [29] and [41]).
At the time of granting the application for stays, I found that the risk arising out of breach of finance facilities, purchase contracts and deeds and arrangement which Toplace Pty Ltd or its associated special purpose vehicles had entered into, would have a detrimental financial effect on Toplace Pty Ltd and its ability to continue to operate (at [55(1)]). I found that parties to contracts presently exchanged in relation to the developments on foot would be impacted if I did not grant the stay applications. However, the bench warrant for Mr Nassif's arrest was not a matter which was before me at the time I made the decision to impose a stay.
I am mindful that Mr Nassif has not been convicted of the offence for which he is being charged. However, the offence itself relates to a loan facility for construction of the Skyview development. A bench warrant has had to be issued for his arrest and there is no evidence before me regarding Mr Nassif's intention to return to Australia. The applicants have provided no evidence in relation to the ongoing progress of construction of the developments or the status of the loan facilities or the purchase contracts since the Tribunal granted the applications for the stays. It is reasonable to infer that the Westpac loan facility would now be in jeopardy regardless of whether Mr Nassif or Toplace Pty Ltd hold a licence.

Defects works

One of the reasons I granted the stays was that I found that parties to deeds and who had arrangements for rectification works on past projects would be affected if the decisions were to take effect.
In his affidavit, Norman Raad, who is a site and defects manager employed by Toplace Pty Ltd, outlines the defects work that has been undertaken by Toplace Pty Ltd since December 2022. Mr Raad provides a summary of work by way of progress report. The progress report does not identify the dates on which rectification of defects was completed. Mr Raad states that it is critical that Toplace Pty Ltd maintain the ability to undertake rectification of defects and that if Toplace Pty Ltd was forced to outsource all the rectification of defects work, it would slow down the delivery of works and increase the costs to the company which may lead to the company's failure. Mr Raad states that Toplace Pty Ltd has ongoing defect rectification commitments, including obligations under twelve rectification deeds, at least three active building rectification orders, at least one voluntary planning agreement, a fire safety order and one stop work order.
Annexed to Mr Raad's affidavit is correspondence between representatives of Toplace Pty Ltd and various representatives of Fair Trading regarding ongoing works that are required to rectify defects. Mr Raad also annexes what he describes as correspondence from Owners Corporation representatives for works completed by Toplace Pty Ltd since December 2022, noting that none of the work referred to was conducted at times when Toplace Pty Ltd was unable, by law, to complete the works. The correspondence, all dated on the same day, 26 June 2023, has also been annexed to the affidavit of Mr Raad and can be summarised as follows: 1. A letter from Kristy Vreeswyk who is a Senior Building Manager for Pacific Management Group. It states that she has been a building manager with Pacific Management for 6 years and onsite building manager at Skyview for 8 months. She states in her time at Skyview she has worked closely with the construction team at Toplace Pty Ltd to close out defects efficiently. Regarding Toplace Pty Ltd, she states: "In this time, I have found Toplace to be highly responsive in closing these matters off. The team at Toplace is professional and experienced in their field. In previous buildings I have managed I have seen defects lists in the thousands being left unresolved for a maximum of 18 months. This is not the case with Toplace. I have also in previous buildings seen common defects throughout several units which again is not the case in Skyview. I highly recommend Norman, Atra, and the team at Toplace." 1. A letter from Janice Jadrijevic, chairperson of a strata corporation for strata plan SP97673, which is a strata scheme in Kellyville. The letter is addressed to "Joe" and states: "… I would like to thank you for all the excellent work you are doing around our three buildings. Only since you have been working here have, we felt like our complaints are being listened to, we really appreciate your efforts. Your standard of work has been excellent, especially when dealing with all the leaks. It's so nice to go through the garage area and it's dry. We are just wondering when you will be here again, as there are still more urgent repairs that need rectification. We know you are very busy now; however, we really don't want to lose you, please let us know when you are around. I hope you have a great day. Just for your reference I've attached the RHM report from last year." 1. An email from Tony Tanvir, a facilities manager at Vicinity, a property at 11-15 Charles Street, Canterbury NSW 2193. The email is addressed to Joe Azar at Toplace and states: "Dear Joe, I hope this email finds you well. I am reaching out to inquire about the schedule for tile installation in Jack's unit. As you are aware, Jack works from home and it is crucial to have his room fixed as soon as possible. We greatly appreciate the thorough investigation you conducted for Fair Trading and the excellent job you carried out in Jack's unit. Additionally, we would like to express our gratitude for clearing all the debris in the B3 car park. Your efforts will significantly contribute to resolving the flooding issue we have been experiencing in that area. We kindly request an update on the timeline for the tile installation in Jack's unit, considering his work requirements. Your prompt response will be highly appreciated. …"
The three letters annexed to Mr Raad's email contain generalised remarks about Toplace Pty Ltd's rectification works. However, the letters are not specific as the extent of the works that have been undertaken or the exact dates when those works were done.
I accept from the evidence that there are ongoing defects rectification works. I also note the evidence of Mr Barakat that as nominated supervisor for Toplace Pty Ltd, Mr Barakat is committed to working towards rectifying those defects. In my reasons for granting the stay applications, I stated the following (at [49]): "Engaging new contractors to undertake the rectification works would at least require some time, presuming it could be done at all. The process would cause at least some inconvenience, delay and disruption to the rectification work currently on foot. That inconvenience and delay would be further exacerbated by the fact that some of the rectification work involves rectification to defects involving water ingress which could cause considerable issue for those living in those premises. Given that I have found that the cancellation would result in a financial impact to Toplace Pty Ltd, there is also some risk that Toplace Pty Ltd may at some point find itself in a position unable to finance the rectification work at all. I accept there will at least be some adverse effect on the ability of Toplace Pty Ltd to continue with the rectification works presently on foot."
Counsel for the applicants submitted at the hearing that those concerns remain in place. However, for at least 3 months since the supervisor licence of Mr Nassif lapsed, Toplace Pty Ltd has not had a nominated supervisor and, during that period, I presume that Toplace Pty Ltd has been limited in the work that they can undertake. The applicants submit that Toplace Pty Ltd now has a nominated supervisor, however, even if I were to accept that was the case, it could only be since 23 June 2023.

Reputational Consequences

The applicants also submit that revoking the stays has reputational consequences for both applicants. In my view, there are little reputational consequences arising out of the lifting of the stay. The fact that decisions have been made by the respondent, cancelling the applicants' licences, is a matter of public record. In relation to the Nassif decision, regardless of the stay, Mr Nassif's licence has subsequently lapsed. That is also a matter of record.

Conclusion

Having considered the evidence and submissions of the parties, and the matters referred to in s 60(3) of the ADR Act, I do not consider it desirable to continue the stay orders on the Toplace and Nassif decisions. The stays are not necessary to secure the effectiveness of the determination of the administrative review applications.
It remains the case that the evidence in relation to the Nassif decision and Toplace decision has not yet been challenged or conclusively examined by the Tribunal. However, the Tribunal has listed the proceedings for final hearing to commence on 16 October 2023. The applicants now have some certainty in that regard. If the Tribunal decides to set aside the decisions of the Commissioner, then subject to any issues with the lapsing of Mr Nassif's supervisor certificate, the licences can be reinstated.
Despite the delay it may cause, it remains open to Toplace Pty Ltd to arrange for other suitably licensed contractors to continue the defects work. Such an arrangement would only need to be in place until the proceedings are determined and it has now been confirmed that the final hearings are listed on 16 October 2023.
Part 3 of the HB Act sets out a scheme for licensing to ensure the protection of consumers and so that works are done and supervised by suitably qualified individuals. The revocation of the stays may have some impact on the employees and contractors of Toplace Pty Ltd, any purchasers which have contracts on foot and those who awaiting rectification of defects, however the change in the circumstances since granting the applications for a stay weigh against continuing the stays and it is no longer in the public interest to continue the stays. In summary, those circumstances are: 1. Mr Nassif's supervisor licence lapsed on 24 March 2023, and although Toplace Pty Ltd submits that Mr Barakat is now a nominated supervisor, Toplace Pty Ltd remained without a nominated supervisor 24 March 2023 and at least until 23 June 2023. I have found that Mr Nassif has not acted with urgency in that regard as it was always open to him to appoint another nominated supervisor who did not require dual nomination. 2. Mr Nassif has been overseas since 22 December 2022 with no indication of when he will return, and he remains the director of Toplace Pty Ltd. That is in circumstances where a bench warrant has had to be issued for Mr Nassif's arrest in relation to an offence of dishonesty to do with a loan facility for one of Toplace Pty Ltd's developments.

Revoking the stay application in relation to the Nassif decision only

The Commissioner made submissions that if I did continue the stay on the Toplace decision, then I should revoke the stay on the Nassif decision because his licence has lapsed. Given my determination to revoke the stay on both decisions, it is unnecessary to determine that issue. However, I make the following observation.
"Authority" is defined in cl 1 of Schedule 1 of the HB Act as: authority means the following - (a) a contractor licence (whether or not an endorsed contractor licence), (b) a supervisor or tradesperson certificate, (c) an owner-builder permit.
Section 20 of the HB Act provides that: 20 Issue of contractor licences (1) The Secretary must refuse an application for a contractor licence if - … (a1) the Secretary is not satisfied as to the matters of which the Secretary is required to be satisfied by sections 33B and 33C, or … (c) the applicant is disqualified by this Act or the regulations from holding a contractor licence, …
Section 33B of the HB Act mandates when an authority is not to be issued: 33B General requirements for issue of certain authorities (1) An authority (other than an owner-builder permit) must not be issued unless the Secretary is satisfied that - (a) each relevant person in relation to the application for the authority - (i) is not disqualified from holding the authority or an authority of the kind applied for, or from being a member of a partnership or a director of a body corporate that is the holder of the authority or an authority of the kind applied for, …
"Relevant person" is defined in sub-section (2) as: (2) For the purposes of this section, each of the following persons is a relevant person in relation to an application for an authority - (a) the applicant, (b) if the applicant is a partnership - (i) every partner of the applicant, and (ii) if a member of the partnership is a corporation - every director of that corporation, (c) if the applicant is a corporation - every director of the applicant.
Although those provisions deal with an application for an authority, s 22 of the HB Act deals with the circumstances in which the Secretary must cancel a contractor licence and relevantly provides as follows: 22 Cancellation of contractor licences (1) The Secretary must, subject to the regulations, cancel a contractor licence that authorises its holder to contract to do residential building work or specialist work, or both (whether or not it also authorises the holder to contract to supply kit homes for construction by another person) if - (a) a period of 30 days (or any longer period that has been agreed on between the holder of the contractor licence and the Secretary) expires during which there has not been a nominated supervisor for the contractor licence, or … (h) the Secretary would be required to refuse an application for a contractor licence by the person.
The decision made by the Commissioner on 2 December 2022 cancelling the supervisor certificate no. 21450S of Mr Nassif also disqualifies him from holding an authority or being a member of a partnership or officer of a corporation under the HB Act. On that basis, even if I had been minded to revoke the stay on the Nassif decision only, that would have the resulted in Mr Nassif, who is a director of Toplace Pty Ltd, becoming a relevant person disqualified from holding an authority. An authority cannot be issued in those circumstances because of s 33B(1)(a)(i). Such application would be refused under s 20(1)(c) of the HB Act. On that basis, the Secretary would be required by s 22(1)(h) to cancel the license of Toplace Pty Ltd, regardless of whether Mr Barakat was the nominated supervisor.

Orders

Accordingly, I make the following orders: In matter 2022/00375413: 1. The Tribunal revokes the stay order, made by the Tribunal on 5 January 2023, on the decision of the Commissioner of Fair Trading to cancel Jean Khazen Nassif's supervisor certificate no. 21450S and disqualify him from holding any authority under the Home Building Act 1989 (NSW). In matter 2022/00375423: 1. The Tribunal revokes the stay order, made by the Tribunal on 5 January 2023, on the decision of the Commissioner of Fair Trading to cancel Toplace Pty Ltd's contractor licence no. 215731C and disqualify Toplace Pty Ltd from holding any authority under the Home Building Act 1989 (NSW).

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: 06 July 2023

At a glance

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Judgment (13 paragraphs)

Legislation Cited (5)

Cases Cited (7)