New Energy Technology Solutions Pty Ltd (ACN 677931323) v Secretary, Department of Customer Service

Background

1. On 3 February 2000, a company called South Seas Services Pty Ltd (ABN 87091437875) (Deregistered) was registered. Mr Bilivalu was the sole director and company secretary.
2. According to the records of ASIC, on 8 March 2005, a liquidator was appointed to South Seas Services Pty Ltd by order of the Court pursuant to s 459P of the Corporations Act, that is, an order that the company be wound up in insolvency. The company was wound up and deregistered on 13 November 2005. Mr Bilivalu's evidence that he decided to deregister this company cannot be reconciled with ASIC's records. Given this inconsistency, I do not accept the evidence of Mr Bilivalu unless it is otherwise supported.
3. On 25 June 2018, Mr Bilivalu registered Sustainable Energy Network Solutions Pty Ltd (ABN 48 627 037 629) (In Liquidation). Mr Bilivalu was the sole director and company secretary.
4. The business of Sustainable Energy Network Solutions Pty Ltd was the installation of solar panelling. Sustainable Energy Network Solutions Pty Ltd registered and used the business name of "Solar Nexus". According to Mr Bilivalu, Sustainable Energy Network Solutions Pty Ltd only did sub-contracting work with "Tier 1 clients" and does not directly work with homeowners.
5. On 17 August 2021, application was made by a creditor to wind up Sustainable Energy Network Solutions Pty Ltd in insolvency. Mr Bilivalu gave oral evidence that the unpaid debt related to an amount owing on a truck which was disputed. The debt was paid and the application to wind up this company was withdrawn approximately a month later.
6. On 15 March 2024, notification was given of another application to wind up Sustainable Energy Network Solutions Pty Ltd in insolvency. Mr Bilivalu gave evidence that the creditor was the Australian Taxation Office (ATO) and the debt related to withholding amounts that were due and payable but unpaid. The withholding amounts owing related to "pay as you go" payments that had been withheld on behalf of employees' tax obligations. According to Mr Bilivalu, these amounts have still not been paid in full to the ATO. According to the Original Decision, the ASIC Form 507 Report on Company Activities and Property provides that $500,000 was owed to the ATO.
7. By cover letter dated 22 April 2024, a Chinese company called Ruihe (Chongqing) New Energy Technology Co Ltd sent a term sheet to Sustainable Energy Network Solutions Pty Ltd addressed to Mr Bilivalu. The term sheet refers to three shareholders of Sustainable Energy Network Solutions Pty Ltd being: 1. Ms Sara Foster with 10 per cent; 2. Ms Thambirasa Tharmakulasingam with 20 per cent; 3. Mr Bilivalu with 70 per cent.
8. According to the term sheet, Mr Bilivalu would remain a 70 per cent shareholder with Ruihe (Chongqing) New Energy Technology Co Ltd acquiring the other shares and its investment fund would be used for the following purpose: [Sustainable Energy Network Solutions Pty Ltd's] investment and operation in Fiji photovoltaic power station and virtual power station project. (Emphasis added.)
9. The term sheet was purportedly signed by Mr Bilivalu on 19 April 2024 which is difficult to reconcile with the overing letter being dated 22 April 2024.
10. On 5 June 2024, Mr Bilivalu registered the Applicant which was named "New Energy Technology Solutions" - that name having an obvious similarity with the name of the Chinese company that Mr Bilivalu was negotiating with. At this time, Mr Bilivalu also took steps to transfer the business name "Solar Nexus" from Sustainable Energy Network Solutions Pty Ltd to the Applicant. Mr Bilivalu states in the document attached to the administrative review application that "in June 2024… I transitioned the business from Sustainable Energy Network Solutions Pty Ltd [to the Applicant]". (Emphasis added.)
11. On 1 July 2024, Mr Bilivalu made application on behalf of the Applicant for a contractor licence. The application form required Mr Bilivalu to declare his directorships where the company is or has been in external administration. South Seas Services Pty Ltd was not cited. However, Sustainable Energy Network Solutions Pty Ltd was listed despite the order winding up the company not being entered until 5 July 2024 as described below. The application form required answers to questions related to the external administration of Sustainable Energy Network Solutions Pty Ltd. The Applicant gave the following answers: When did you first become aware that the company was experiencing financial difficulties or that there were any problems with finances for the company? April/ May 2024. What were the reasons or circumstances that existed for the financial problems being experienced by the company? COVID Period - lost majority contracts Clients that we worked with folded during COVID and majority of Builders (our clients) also folded recently leaving us with bills that were not paid. Once you became aware of the financial difficulties for the company, what actions did you take to address the financial pressures arising? Business investors invited What steps did you take to avoid the company having been placed into external administration? Awaiting investor approval from overseas. Time is a problem.
12. Four days later, on 5 July 2024, a winding up order was made and a liquidator was appointed to Sustainable Energy Network Solutions Pty Ltd. As at the most recent company extract provided in the proceedings, that liquidation is still on-foot.
13. On 5 September 2024, the Respondent invited the Applicant to provide the following by 19 September 2024: 1. A completed nominated qualified supervisor consent form; 2. ASIC form 507 being a statutory report from the liquidator to creditor; 3. A copy of any deed of company arrangement; 4. A statement from the Applicant's accountant demonstrating the Applicant's financial viability to complete contracts in the future for residential building/ specialist work; 5. A current statement of affairs/ balance sheet and a projected income and expenditure prepared by the Applicant's accountant; and 6. Any other supporting documentation.
14. On 13 September 2024, the supervisor consent form and the Statutory Report were provided on behalf of the Applicant. A balance sheet and projected income and expenditure were provided but they were not prepared by an accountant nor did the Applicant provide a statement from an accountant demonstrating the Applicant's financial viability. The absence of this information was said to be because the Applicant had yet to retain an accountant and was conducting its own bookkeeping. The absence of a liquidator's report was because it would not be ready until 4 October 2024.
15. On 1 October 2024, the Respondent refused the Applicant's application (the Original Decision). The Original Decision states, inter alia: Building Commission NSW is concerned about the potential risk to the public that you are unable to complete contracts entered in the future for specialist work as we are unable to accept the budget and balance sheet provided as they were not prepared by an accountant. Additionally, there is no statement addressing your financial viability. Given the limited information submitted, Building Commission NSW cannot be assured regarding the circumstances surrounding the company's failure. Furthermore, we are no satisfied that you have provided adequate evidence demonstrating that all reasonable measures were taken to avoid administration therefore prevents s from issuing an authority.
16. On 25 October 2024, the Applicant requested an internal review of the Original Decision. The Applicant provided additional material being a letter from an accounting firm dated 24 October 2024 attaching: 1. September Quarter profit and loss; 2. Projected income and expenditure report; 3. Various written contracts; and 4. Balance sheet as of 30 September 2024.
17. The Applicant did not provide a copy of the liquidator's report.
18. On 14 November 2024, the Respondent affirmed the Original Decision and refused the application (the Internal Review). According to the Internal Review s 33B(1)(a)(xv) of the HBA applied and there was no basis to exercise the discretion as provided in s 33C(2) of the HBA because the Applicant had not demonstrated that: 1. all reasonable steps were taken to avoid the insolvency and liquidation of Sustainable Energy Network Solutions Pty Ltd; 2. there was no evident risk to the public in its ability to complete future contracts and in this regard: 1. four of the five contracts relied upon by the Applicant made no reference to the Applicant and were considered irrelevant; 2. one contract that refers to the Applicant suggests it was trading under the name "Solar Nexus" but there is no evidence that this is a registered name of the Applicant; 3. the Applicant's accountant stated that the Applicant is operating at a loss and its income projections are limited; and 4. the liquidator's report to creditors was not provided and the assessor could not access how the circumstances of the Applicant would differ.
19. On 18 November 2024, the business name "Solar Nexus" was registered to the Applicant.
20. On 16 January 2025, a document was executed by Mr Bilivalu related to the negotiations with the Chinese company which were evidently continuing. The document is entitled "Declaration of Company Name Change from Sustainable Energy Network Solutions to New Energy Technology Solutions and Continuation of Exclusive Agency Agreement". That document states: All business activities and legal obligations previously undertaken by Sustainable Energy Network Solutions Pty Ltd will now be carried out under the new name New Energy Technology Solutions

Legislation and Jurisdiction

1. The HBA offers protection to consumers in New South Wales by regulating residential building work and specialist work. The HBA, inter alia, provides for the licensing and regulation of those engaged in residential building work. It prohibits a person from contracting to do any residential building work or specialist work without holding the appropriate contractor licence, supervisor certificate and/or trade person certificate.
2. Section 20 of the HBA relates to the issuing of contractor licences and states: (1) The Secretary must refuse an application for a contractor licence if-- (a) the Secretary is not satisfied that the applicant is a fit and proper person to hold a contractor licence, or (a1) the Secretary is not satisfied as to the matters of which the Secretary is required to be satisfied by section 33B, or (a2) the Secretary, after considering evidence supplied by the applicant, is not satisfied as to the matters of which the Secretary is required to be satisfied by section 33C, or (b) the applicant is a mentally incapacitated person, or (c) the applicant is disqualified by this Act or the regulations from holding a contractor licence, or (d) the Secretary considers that a close associate of the applicant who would not be a fit and proper person to hold an authority exercises a significant influence over the applicant or the operation and management of the applicant's business. Note--: Under section 6 of the applied Act (within the meaning of section 19) an application for the grant of a contractor licence may be made by any individual aged 18 years or more, by any partnership or other association whose members are all individuals aged 18 years or more or by any corporation. (1A) Without limiting subsection (1)(a), in determining whether an applicant is a fit and proper person to hold a licence the Secretary is to consider whether the applicant is of good repute, having regard to character, honesty and integrity. (2) The Secretary may, by notice published in the Gazette, specify qualifications and experience, or additional standards or other requirements, required to be held or met by an applicant for a contractor licence. (3) The Secretary must refuse an application for a contractor licence if-- (a) the Secretary is not satisfied that any such requirement would be met were the contractor licence to be issued, or (b) the Secretary is not satisfied with the applicant's proposed arrangements for supervision of the work which the contractor licence will authorise the applicant to contract to do, or (c) the Secretary is not satisfied that the applicant has complied or is able to comply with any requirements of Part 6 or any requirements of the regulations relating to insurance applicable to the doing of work of a kind proposed to be authorised by the contractor licence. (5) A decision of the Secretary relating to the specification of qualifications and experience, or additional standards or other requirements under subsection (2) cannot be reviewed by the Tribunal in an application for an administrative review made under this or any other Act. (6) Without limiting this section, the Secretary may refuse an application for a contractor licence if the Secretary is of the opinion that it is in the public interest to do so on any of the following grounds-- (a) an employee or proposed employee of the applicant is disqualified from holding a contractor licence, has had an application for an authority refused on a ground relating to his or her character, honesty or integrity or has had an authority cancelled or suspended on any disciplinary ground, (b) there are reasonable grounds to believe that the application has been made with the intention of avoiding disclosure of any relevant past misconduct of the applicant or a close associate of the applicant.
3. Section 33B(1)(a)(xv), (xvi) and (5) state: (1) An authority (other than an owner-builder permit) must not be issued unless the Secretary is satisfied that-- (a) each relevant person in relation to the application for the authority - …. (xv) except in relation to an application for a tradesperson certificate--is not at the time of the application a director of or a person concerned in the management of a Chapter 5 body corporate (other than Chapter 5 body corporate resulting from a members' voluntary winding up of the body corporate), and (xvi) except in relation to an application for a tradesperson certificate--within 10 years before the date of the application, was not a director of or a person concerned in the management of a body corporate that was a Chapter 5 body corporate at any time within that 10-year period (other than Chapter 5 body corporate resulting from a members' voluntary winding up of the body corporate) … (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.
4. A "relevant person" is defined to include a director of the applicant. "Relevant involvement" with a body corporate is if the person is at the time of the making of the application for the authority, or was at any time within 3 years before the making of the application for the authority, a director of or a person concerned in the management of the body corporate.
5. Section 33C(2) refers to, inter alia, s 33B(1)(a)(xv) and s 33C(3) refers to, inter alia, s 33B(1)(a)(xvi) (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). (3) Despite section 33B(1)(a)(xiv), (xvi) and (xvii), a contractor licence may be issued if, after considering evidence supplied by the applicant, the Secretary is satisfied that-- (a) 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 (b) the relevant person concerned took all reasonable steps to avoid the bankruptcy, liquidation or appointment of a controller or administrator, and (c) the relevant person concerned has put in place sufficient risk mitigation measures to avoid a future bankruptcy, liquidation or the appointment of a controller or administrator.
6. According to section 9 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) and sections 28 and 30 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), the Tribunal has jurisdiction over a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review.
7. Part 4A of the HBA deals with administrative reviews by the Tribunal. Section 83A states that an applicant for the issue, alteration, renewal or restoration of an authority aggrieved by any decision of the Secretary relating to the application may apply to the Tribunal for an administrative review under the ADR Act of the decision. Section 83B thus gives this Tribunal jurisdiction.
8. In determining an application for administrative review, section 63 of the ADR Act provides that this Tribunal is to decide what is "the correct and preferable decision" having regard to "any relevant factual material, and any applicable written or unwritten law". The Tribunal is not restricted to consideration of the material that was before the original decision-maker but may have regard to any relevant material before it at the time of the review (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 129).
9. In determining an application for administrative review of a decision, the Tribunal may decide to affirm the decision, to vary the decision, to set aside the decision, decide in substitution, or to remit the matter for reconsideration by the administrator.
10. Under section 38(2) of the CAT Act, the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

Evidence and submissions

1. The Applicant contended that based upon the evidence before the Tribunal that the Tribunal should be satisfied that: 1. The circumstances related to the insolvency of Sustainable Energy Network Solutions Pty Ltd were exceptional and out of his control. Mr Bilivalu alleged that it was the COVID epidemic that impacted cash flow because debtors went out of business and did not pay the company for its services. In this respect, the Applicant relied upon an unaudited balance sheet showing that accounts receivable increased from $6346.91 in the financial year ending 30 June 2020 to $378,323.68 in the financial year ending 30 June 2021. This quantum of accounts receivable was maintained for each financial year to 30 June 2024 according to that document. 2. Mr Bilivalu alleged that 90 per cent of his employees were overseas students and were not supported by the government during the COVID period but the business decided to support them during the shutdown. 3. Mr Bilivalu alleged that he had loaned a considerable amount of money to the business to sustain it. 4. The company had sought to remedy its liquidity issues by seeking investors which led to discussions with a Chinese company to partner with Sustainable Energy Network Solutions Pty Ltd and that an agreement and "signed MOU" was made and provided to the liquidators but the timing of the deal could not be finalised in the timeframe set by the liquidators. 5. There was no risk to the public because the company will not work directly with the public but will only take on subcontracting work. Otherwise, the information provided by the company's accountant should satisfy the Tribunal of its financial viability.
2. The Respondent submitted that the requirement in s 33B(1)(a)(xv) of the HBA had not been met and the evidence before the Tribunal would not satisfy it that an exception applies. As such the application must be refused pursuant to s 20 of the HBA.
3. In addition to the s 58 bundle and oral submissions, 1. the Applicant relied upon the administrative review application (marked A1), written submissions attaching communications from ASIC related to the Solar Nexus business name (marked A2) and an unaudited balance sheet (marked A3). The Applicant also gave oral evidence. 2. the Respondent relied upon written submissions (marked R1).

Consideration

1. In respect of s 33B(1)(a)(xv), I accept as submitted by the Respondent that 1. "at the time of the application" is the time of the application process and begins on the date the application is made and includes the period up to a decision being made in respect of that application; and 2. Mr Bilivalu is a "relevant person" for the purposes of that provision being a director of the Applicant.
2. Accordingly, s 33B(1)(a)(xv) of the HBA applies to these circumstances because at the time of the Applicant's application, Mr Bilivalu was a director of Sustainable Energy Network Solutions Pty Ltd who had entered external administration - specifically a Court ordered liquidation.
3. As s 33B(1)(a)(xv) applies, unless the Applicant can satisfy the Tribunal that the correct and preferable decision is to exercise its discretion to issue the licence in consideration of the factors in s 33C(2) and consistent with s 33B(5), the application must be refused pursuant to s 20 of the HBA. As extracted above, the factors in s 33C(2) are as follows: 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).
4. The was no controversy raised in these proceedings with respect to the factors listed at (a) and (d). Rather, the Respondent's submissions concentrated on the factors in (b) and (c) to contend that the decision to refuse the application should be affirmed.
5. The evidence is insufficient to satisfy me that: 1. 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 2. Mr Bilivalu took all reasonable steps to avoid the liquidation of Sustainable Energy Network Solutions Pty Ltd.
6. In this respect, Mr Bilivalu contends that the primary reason why Sustainable Energy Network Solutions Pty Ltd went insolvent was because of the disruption to business caused by the spread of COVID and alleges that many of its clients went out of business and were unable to pay for the company's services.
7. However, apart from stating as much, the only documentary evidence relied upon is a two-page balance sheet which is unaudited and, on its face, has not been prepared by an accountant. There is no evidence to support the accuracy of these numbers nor evidence of the alleged large amounts representing accounts receivable substantiating that large volumes of debtors failed to pay for Sustainable Energy Network Solutions Pty Ltd's services because they went out of business. Conspicuous in its absence is a copy of the liquidator's report which is now available but which the Applicant has not provided despite being requested to do so. That report would disclose the liquidator's opinion as to the cause of the insolvency.
8. While alleging that the cause of Sustainable Energy Network Solutions Pty Ltd's insolvency was because the company's clients' went out of business the Applicant simultaneously relies upon the viability of that business to allege that there is no risk related to the Applicant's financial future. This is because, as described by Mr Bilivalu, the Applicant has taken over the business of Sustainable Energy Network Solutions Pty Ltd and has effectively "stepped into its shoes". This was evident from Mr Bilivalu's oral evidence as well as the documentation tendered. For example: 1. according to the "Declaration of Company Name Change" signed by Mr Bilivalu for the potential Chinese investor, the Applicant will undertake "all business activities" previously undertaken by Sustainable Energy Network Solutions Pty Ltd. 2. the forecasts and projections prepared by Judge Accountants were based on five contracts (some of which were unexecuted). In any case, all of those contracts, except for one, is between third parties and Sustainable Energy Network Solutions Pty Ltd. This can be identified irrespective of the fact that the name of the contracting party is "Solar Nexus" because Sustainable Energy Network Solutions Pty Ltd can be identified by its ABN which is different to the ABN of the Applicant.
9. I do not find this reasoning persuasive. Sustainable Energy Network Solutions Pty Ltd is now in liquidation. It failed as a business. Even if it is accepted that the Applicant is going to purportedly continue that business albeit in a new corporate entity, that gives no comfort as to the viability of that business. Additionally, I do not find the documents provided by Judge Accountants persuasive. The contracts relied upon to calculate projections do not provide a basis to calculate projections of the Applicant because, with the exception of one, the Applicant is a non-party to those contracts and it does not have a right to enforce any obligation created by them.
10. Mr Bilivalu also contended that Sustainable Energy Network Solutions Pty Ltd experienced financial strain because 90 per cent of its employees were overseas students and were not supported by the government during the COVID period but the business decided to support them during the shutdown. Apart from Mr Bilivalu stating this occurred, there was no documentary evidence of this and it sits uneasily with the fact that Sustainable Energy Network Solutions Pty Ltd failed to pay employee-amounts at least to the extent of their tax obligations in the form of withholding amounts. Nor is there any evidence or sources supporting that overseas students were not supported by the government during the COVID period through financial and non-financial means.
11. With respect to the Applicant's argument that there was no risk to the public because the company will not work directly with the public but will only take on subcontracting work, I do not accept this reasoning, but it also applies the incorrect consideration. Section 33C(2)(b) is concerned with the risk that the applicant will be unable to complete contracts entered. I am not satisfied that there is no evident risk given that Mr Bilivalu has been a director of two companies that have been the subject of at least three Court winding-up applications (one withdrawn) with two companies being liquidated because insolvency.
12. Lastly, I am not satisfied that Mr Bilivalu took all reasonable steps to avoid the liquidation of Sustainable Energy Network Solutions Pty Ltd. In this regard, the Applicant relied upon the term sheet with the Chinese company. Even if that alone was sufficient to prove "all reasonable steps", the terms of the proposed agreement as per that term sheet make no provision for the payment of Sustainable Energy Network Solutions Pty Ltd's taxation obligations to the ATO. Rather, the term sheet expressly provided that without the Chinese company's consent, Sustainable Energy Network Solutions Pty Ltd shall not directly or "disguisedly" divert the investment funds for other purposes other than the investment and operation in Fiji of a photovoltaic power station and virtual power station.
13. The Applicant has failed to provide sufficient evidence to satisfy the Tribunal of the conditions in s 33C(2) of the HBA. The application must be refused pursuant to s20 of the HBA.

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 March 2025