Prestigious Plumbing Pty Ltd v Secretary, Department of Customer Service

Medium Neutral Citation: Prestigious Plumbing Pty Ltd v Secretary, Department of Customer Service [2026] NSWSC 798

Hearing dates: 23 June 2026; further written submissions received on 26 June 2026

Date of orders: 10 July 2026

Decision date: 10 July 2026

Jurisdiction: Common Law

Before: Price AJA

Decision: (1) Declare paragraphs 2(a), (b) and (c) of Schedule A of the Notice issued on 19 November 2025 to be invalid.
(2) Order that subject to the declaration in Order 1 above, the summons be dismissed.
(3) As to costs:
(a) Direct that any submissions by the plaintiff as to costs, not exceeding 3 pages, be filed and served by 5:00pm on 17 July 2026.
(b) Direct that any submissions by the first and second defendants as to costs, not exceeding 3 pages, be filed and served by 5:00pm on 24 July 2026.
(c) Direct that any submissions by the plaintiff in reply, not exceeding 1 page, be filed and served within 2 days of receipt of the submissions provided for in Order 3(b) above.
(d) Note that the issue of costs will be determined on the papers.

Catchwords: ADMINISTRATIVE LAW – judicial review – notice issued under s 127(2) of the Home Building Act 1989 (NSW) – whether notice invalid – where notice required production of documents and information – where notice issued in the context of an investigation – requirements of a notice – whether “entitlement disclosure condition” applies to the notice – whether notice discloses the basis on which the Secretary entitled to require the information or documents sought – whether notice identified a “matter” – whether severance of the notice possible – where invalid portions not inextricably mixed
STATUTORY INTERPRETATION – whether “entitlement disclosure condition” implied in a notice issued under s 127(2) of the Home Building Act 1989 (NSW) – where consideration of text, context and purpose of s 127 – entitlement disclosure condition implied

Legislation Cited: Australian Crime Commission Act 2002 (Cth), s 21A
Building Services Corporation Act 1989 (NSW)
Building Services Corporation Legislation Amendment Act 1996 (NSW)
Corporations Act 2001 (Cth), s 596D
Crimes (Sentencing Procedure) Act 1999 (NSW), s 17
Fair Work Act 2009 (Cth), s 712
Health Insurance Act 1973 (Cth), s 89B
Home Building Act 1989 (NSW), ss 51, 52, 54, 55, 56, 57, 58, 59, 60, 61, 61A, 62, 122, 127, Pts 4, 8, Sch 1
Income Tax Assessment Act 1936 (Cth), s 264
Interpretation Act 1987 (NSW), s 33
Protection of the Environment Operations Act 1997 (NSW), s 193
Trade Practices Act 1974 (Cth), s 155 (repealed)
Workplace Relations Act 1996 (Cth), ss 86(1A), 83BH (repealed)

Cases Cited: AB Pty Ltd v Australian Crime Commission (2009) 175 FCR 296; [2009] FCA 119
Amalgamated Television Services Pty Ltd v Australian Broadcasting Tribunal (1989) 91 ALR 363
Aurora Construction Materials Pty Ltd v Victorian WorkCover Authority [2018] VSCA 165
Caratti v Commissioner of the Australian Federal Police (2017) 257 FCR 166; [2017] FCAFC 177
Carr v Western Australia (2007) 232 CLR 138; [2007] HCA 47
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2
Construction, Forestry and Maritime Employees Union v Brandon-Baker [2025] FCA 277
CXXXVIII v Commonwealth (2019) 266 FCR 339; [2019] FCAFC 54
D’Anastasi v Environment, Climate Change and Water (NSW) (2011) 81 NSWLR 82; [2011] NSWCA 374
Director, Professional Services Review v Yoong (2025) 311 FCR 312; [2025] FCAFC 95
Fair Work Ombudsman v United Petroleum Pty Ltd [2020] FCA 590
Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd (1979) 143 CLR 499; [1979] HCA 67
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55
Festa Holdings Pty Ltd (in liq) v Adderton [2004] NSWCA 228; (2004) 12 BPR 22,491
Fieldhouse v Deputy Commissioner of Taxation (1989) 25 FCR 187; [1989] FCA 586
Harris v Mathieson (in his capacity as an authorised officer under the Water Management Act 2000 (NSW)) [2019] NSWSC 1064
HFM043 v Republic of Nauru [2018] HCA 37; (2018) 92 ALJR 817
Laing v Carroll (2005) 146 FCR 511; [2005] FCAFC 202
Melbourne Home of Ford Pty Ltd v Trade Practices Commission (1979) 36 FLR 450; [1979] FCA 15
Melbourne Home of Ford v Trade Practices Commission (No 3) (1980) 47 FLR 163; [1980] FCA 94
Mosaic Brands Ltd v Australian Communications and Media Authority (2022) 294 FCR 119; [2022] FCAFC 79
Palmanova Pty Ltd v Commonwealth of Australia (2025) 99 ALJR 1362; [2025] HCA 35
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Pyneboard Pty Ltd v Trade Practices Commission (1982) 57 FLR 368
SA Brewing Holdings Ltd v Baxt (1989) 23 FCR 357
SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55
Seven Network Ltd v Australian Competition and Consumer Commission (2004) 140 FCR 170; [2004] FCAFC 267
Singapore Airlines Ltd v Australian Competition and Consumer Commission [2009] FCAFC 136; (2009) 260 ALR 244
Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34
Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9
Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 2) [2007] FCA 493; (2007) 240 ALR 135 The Owners – Strata Plan No 66375 v King [2018] NSWCA 170 WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175; [1980] FCA 79

Texts Cited: Building Services Corporation Bill 1989 (NSW)
Building Services Corporation Legislation Amendment Bill 1996 (NSW)
Explanatory Memorandum, Building Services Corporation Bill 1989 (NSW)
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 18 October 1989
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 30 October 1996

Category: Principal judgment

Parties: Prestigious Plumbing Pty Ltd (ACN 153 421 615) (Plaintiff)
Secretary, Department of Customer Service (First Defendant)
Giulietta Siciliano (Second Defendant)

Representation: Counsel:
A Sivanathan (Plaintiff)
T Bagley (First and Second Defendants)
Solicitors:
Pigott Stinson (Plaintiff)
Department of Customer Service (NSW), Legal Enforcement (First and Second Defendants)

File Number(s): 2025/491661

Publication restriction: Nil

JUDGMENT

1. PRICE AJA: The question raised in these proceedings is whether a notice issued on 19 November 2025 (“the Notice”) to the plaintiff, Prestigious Plumbing Pty Ltd, by the second defendant, Ms Giulietta Siciliano (also referred to as Julie Siciliano) as an authorised delegate of the first defendant, the Secretary of the Department of Customer Service, which required the production of various documents and information pursuant to ss 127(2)(a) and (b) of the Home Building Act 1989 (NSW) (“the HB Act”), is valid.

2. By summons filed on 18 December 2025, the plaintiff seeks a declaration that the Notice was not validly issued and is “unauthorised, invalid and of no effect”. The plaintiff does not challenge the validity of the Notice on grounds that it was issued for an improper purpose or unreasonableness.

3. Sections 127(1), (2) and (4) of the HB Act are relevantly as follows:

“127 Power to obtain information

(1) In this section—

authorised person means—

(a) a person authorised in writing by the Secretary for the purposes of this section and holding a certificate issued by the Secretary as to that authority, or

(b) an investigator appointed under section 18 of the Fair Trading Act 1987, or

(c) a person authorised in writing by the Authority for the purposes of this section and holding a certificate issued by the Authority as to that authority.

relevant information means information about—

(a) a possible offence against this Act or the regulations, or against another Act if the offence relates to specialist work, or

(b) a complaint under this Act, or

(c) an investigation by the Secretary into a matter that is or may be the subject of disciplinary proceedings under this Act, or

(d) an application for, or for the renewal or restoration of, a contractor licence or a supervisor or tradesperson certificate, or

(e) the financial solvency of an applicant for, or holder of, a contractor licence or of a supervisor or tradesperson certificate or a close associate of such an applicant or holder, or

(f) an application for a licence under Part 6C, or

(g) an investigation by the Authority into a matter that is or may be the subject of action against an insurer or provider of an alternative indemnity product under this Act or a licence under Part 6C.

(2) The Secretary or Authority may, by notice in writing served on a person, require the person—

(a) to give to an authorised person, in writing signed by the person (or, in the case of a body corporate, by a competent officer of the body corporate) and within the time and in the manner specified in the notice, any relevant information of which the person has knowledge, or

(b) to produce to an authorised person, in accordance with the notice, any document containing relevant information, or

(c) to appear before an authorised person at a time and place specified in the notice and then and there to give (either orally or in writing) relevant information or to answer any questions reasonably related to giving relevant information or producing documents containing such information.

…

(4) A person must not—

(a) fail to comply with such a notice to the extent that the person is capable of complying with it, or

(b) in purported compliance with such a notice, knowingly give information or an answer to a question, or produce a document, that is false or misleading.

Maximum penalty—1,000 penalty units in the case of a corporation and 200 penalty units in any other case.”

Background

4. The plaintiff is a company that provided various plumbing services to customers throughout New South Wales. The plaintiff holds contractor licence no. 241808C in the categories of drainer, gasfitter, LP gasfitter and plumber and roof plumber. The contractor licence commenced on 2 November 2011 and was current as at the time of the Notice being issued. Mr Ghadeer Khalil is listed as the sole director and nominated supervisor of the plaintiff. The plaintiff is the holder of an “authority” for the purposes of s 61 of the HB Act.

5. Ms Siciliano was employed by the first defendant as a Principal Investigator. On 20 October 2025, she was appointed as an authorised delegate of the Secretary of the Department under s 122 of the HB Act. Her role was to monitor and regulate compliance by traders carrying out residential building and specialist work as described in the HB Act. The Building Commission NSW (“the BCNSW”) sits within the Department and has delegation to administer the Secretary’s function pursuant to the HB Act.

6. On 11 November 2025, Ms Siciliano was allocated a matter for investigation into the conduct of the plaintiff. The investigation arose out of a number of complaints received in relation to alleged breaches of the HB Act. On 19 November 2025, Ms Siciliano issued the Notice to the plaintiff in accordance with ss 127(2)(a) and (b) of the HB Act. There is no dispute that she was an “authorised person” under s 127 of the HB Act to issue the Notice.

7. The plaintiff attended various sites to render plumbing services which subsequently became the subject of complaints. On 25 March 2026, the BCNSW served a notice to show cause on the plaintiff under s 61 of the HB Act. The relevance of the admission of the show cause notice was essentially confined to the complaints against the plaintiff summarised below at [9]-[28].

8. Since 18 August 2016, Australian Trades Pty Ltd (ACN 164 770 852) (“Australian Trades”) held contractor licence no. 300418C. On 24 November 2025, the BCNSW cancelled the contractor licence of Australian Trades and permanently disqualified it from holding any authority under the HB Act. On 5 December 2025, it appears that the New South Wales Civil and Administrative Tribunal made an order staying the cancellation decision of Australian Trades’ licence subject to further conditions and pending the determination of a leave application. Australian Trades operated and maintained a website which included, inter alia, the following statement:

“Dan’s Plumbing is a marketing and referral network only and provides booking services only.”

The residential property at Glenfern Close, West Pennant Hills (“West Pennant Hills site”)

9. On 24 October 2025, Mr Phong Trac noticed a drop in his hot water pressure and contacted the plaintiff about the issue.

10. On the same day, a representative from the plaintiff attended Mr Trac’s property located in Glenfern Close, West Pennant Hills (“the West Pennant Hills site”). Mr Trac stated that when it became apparent his plumbing issue was actually caused by Sydney Water’s service disruption, he requested that the plaintiff’s representative cease work to avoid incurring unnecessary costs. However, Mr Trac alleged that the plaintiff’s representative advised him there was no service disruption by Sydney Water causing water pressure issues and continued with his work. Mr Trac was invoiced in the sum of $1,849.10 for the works, which he stated he paid to avoid a confrontation. The invoice stated that the works completed were “search and investigation of water services”. On that same day, Mr Trac lodged a complaint with the BCNSW seeking a partial refund as he felt he had been misled about the plaintiff’s pricing practices.

11. Mr Trac received a 50% refund of the invoice amount from the plaintiff as a result of the BCNSW complaints intervention.

The residential property at Wilson Street, Panania (“Panania site”)

12. On or around 29 October 2025, Ms Janet Doherty contacted Australian Trades, which was trading under the business name “Dan’s Plumbing”, in relation to a water leak at her property located in Wilson Street, Panania (“the Panania site”). A representative from the plaintiff attended the Panania site to inspect the leak and subsequently requested payment of the invoice in the sum of $1,664.19, which she paid. Ms Doherty was then informed by a representative from the plaintiff that further repairs were required at an additional cost of $6,000, which she declined to pay and subsequently asked the representative to leave her property.

13. On or around 31 October 2025, Ms Doherty was contacted by a representative from the plaintiff, who offered her a $300 refund and directed that since she was a pensioner, it was best that one of her children contact a representative of the plaintiff named “Christine” to discuss the matter. Ms Doherty contacted another plumber who attended her property and completed the works at a cost of $550.

14. On 6 November 2025, Ms Doherty lodged a complaint with the BCNSW.

15. On 12 November 2025, the BCNSW on behalf of Ms Doherty sent a letter to the plaintiff in relation to the complaint she had lodged. The letter stated relevantly that:

(a) the BCNSW had received correspondence on 6 November 2025 from Ms Doherty regarding building work at the Panania site; (b) Ms Doherty engaged the plaintiff to repair a water leak at the Panania site; (c) Ms Doherty stated that she was misled into believing the agreed scope of works was to fully repair the leak, rather than to conduct a search and investigation; (d) Ms Doherty claimed the prices charged were excessive and asserted she would not have agreed to the costs had the scope of works been properly explained to her; (e) Ms Doherty believed the investigation was unnecessary, as the leak was clearly visible to the naked eye; (f) Ms Doherty rejected the second quote provided describing it as excessively high; (g) Ms Doherty reported being poorly treated by the plaintiff’s support staff; and (h) Ms Doherty was seeking a substantial refund for the costs already paid to the plaintiff.

16. In response to the BCNSW’s letter, the plaintiff refunded Ms Doherty in full.

The residential property at Mascot Drive, Eastlakes (“the Eastlakes site”)

17. On 30 October 2025, Mr John Chatwin required a plumber to attend his property located in Mascot Drive, Eastlakes (“the Eastlakes site”) and inspect his water heater. He contacted the plaintiff and a representative named “Jessie” attended who was initially unable to identify the root cause of the problem and said it was necessary to conduct a search and investigation at a cost of $749.10, which Mr Chatwin paid. Jessie advised Mr Chatwin that as nothing obviously appeared to be wrong it was probably a minor issue which required repair.

18. After Jessie carried out his inspection, he said to Mr Chatwin that there was gas leaking, water leaking and the water heater needed to be replaced as well as all other parts related to the water services including valves. Jessie stated that the repairs needed were urgent due to a dangerous gas leak and assured Mr Chatwin that once the work was completed, he would have hot water and there would be no issues moving forward. Mr Chatwin was invoiced an additional cost of $6,835.40 for the supply and installation of a new instantaneous gas hot water system which he accepted and paid. Jessie did not return to the Eastlakes site but was replaced by two other plumbers who completed the installation.

19. After the work was completed, Mr Chatwin discovered that he still had no hot water and also noticed water running onto the floor from the water heater cupboard. The plaintiff arranged for another plumber who attended the Eastlakes site but failed to fix the problem. On the same day, Mr Chatwin rang the plaintiff again and was advised another plumber would be sent out and that they would contact him. Neither a plumber nor the plaintiff subsequently contacted Mr Chatwin.

20. Mr Chatwin contacted the distributor of the water heater, Servgas, who arranged for a plumber from the plumbing company called Emergency Hot Water Repairs Pty Ltd (“Emergency Hot Water Repairs”) to attend his property. The plumber from Emergency Hot Water Repairs advised after an inspection, inter alia, that the water heater had been very poorly installed, that it needed to be uninstalled and reinstalled with an extended fluing. Mr Chatwin was quoted a total of $2,250 (including GST) for the correct installation and cost of the heater. It appears that the plumber from Emergency Hot Water Repairs contacted Jessie by phone and informed him of the issues surrounding the installation.

21. On 3 November 2025, Mr Chatwin sent a letter to the plaintiff detailing what had occurred and that he had been overcharged by the plaintiff in the amount of $5,384. In response, the plaintiff denied overcharging Mr Chatwin as well as any awareness of the errors in the installation and the failure to install the new parts they had charged for. Nevertheless, the plaintiff offered Mr Chatwin a 10% discount which he described as “insulting”. Mr Chatwin then made a complaint about the plaintiff to the BCNSW.

22. Between 3 November 2025 and 11 November 2025, Mr Chatwin was contacted by “Kylie” a representative from the plaintiff’s customer care team. Kylie offered Mr Chatwin a $5,000 refund which was conditional upon him withdrawing his complaint from the BCNSW.

“In accordance with the agreement reached, I am also advising that [the plaintiff] have assured me that they are not affiliated with Dan’s Plumbing nor [Australian Trades] and I am stating that I possibly might have been mistaken regarding my claims of their affiliation.”

The residential property at Ancona Road, Turramurra (“Turramurra site”)

24. On or around 10 November 2025, Mr Alessandro De Oliveira Dantas conducted a search on the internet and found Dan’s Plumbing, which he contacted as sewerage was leaking into the stormwater easement located near his property on Ancona Road, Turramurra (“the Turramurra site”).

25. On the same day, a representative from the plaintiff named “Anthony” attended the Turramurra site instead of a plumber from Dan’s Plumbing whom he had originally contacted. Anthony assured Mr De Oliveira Dantas that if the issue was Sydney Water’s fault, he would receive a full refund. After assessing the Turramurra site, Anthony informed Mr De Oliveira Dantas that the issue was a blockage in the private line. Mr De Oliveira Dantas was invoiced in the sum of $1,251.80 for a high-powered jet blast and CCTV drain camera inspection, which he paid. This did not fix the issue and Mr De Oliveira Dantas was then quoted an additional cost of $18,200 in repairs. He was also warned that his house “wasn’t working” and would be fined $50,000 by Sydney Water if he delayed having the repairs carried out immediately. Mr De Oliveira Dantas was offered an interest free payment plan which he refused.

26. On 11 November 2025, Mr De Oliveira Dantas contacted another plumber who attended the Turramurra site and assessed that there was no internal flow of water, so the blockage was not in the private line but rather downstream which meant that it was in fact a Sydney Water issue. That plumber reported this to Sydney Water and a representative attended who confirmed the issue was a network fault being a blockage located on public land. The Sydney Water representative fixed the issue within two hours at no cost to Mr De Oliveira Dantas.

27. Mr De Oliveira Dantas lodged a complaint with the BCNSW on 18 November 2025. The BCNSW sent a letter to the plaintiff on 24 November 2025, which detailed Mr De Oliveira Dantas’ complaint that the original diagnosis was incorrect and that the plaintiff’s attending plumber’s conduct was misleading. The letter stated that Mr De Oliveira Dantas was seeking a full refund of the amount paid to the plaintiff.

28. On 27 November 2025, Mr De Oliveira Dantas advised the BCNSW that he received a full refund from the plaintiff.

The Notice

29. The Notice was enclosed in a letter dated 19 November 2025, which bore the letterhead of the BCNSW and was signed by Ms Siciliano as the Principal Investigator. Enclosed with the letter and the Notice was a Schedule to the Notice and a copy of s 127 of the HB Act, all of which the BCNSW sent by email to the plaintiff. The opening paragraph of the letter stated that:

“[The BCNSW] is conducting an investigation into the conduct of [the plaintiff].”

30. The Notice is headed:

“Notice to provide to an authorised person any documents and information under [ss 127(2)(a) and (b) of the HB Act].”

31. The Notice recites the belief of Ms Siciliano that the plaintiff “is capable of giving information and producing documents that relate to an investigation by the Secretary into a matter that is or may be the subject of disciplinary proceedings under [the HB Act]”. Ms Siciliano required the plaintiff to provide to her “in writing and signed by the company director the relevant information as described in Schedule A to this Notice” and “the documents described in Schedule B to this Notice”. The Notice stipulated that the plaintiff was required to provide and produce the relevant information and documents by no later than 5pm on 2 December 2025. The plaintiff did not comply with this request.

32. Schedule A of the Notice is headed “relevant information”. It identifies firstly information to be handed over in relation to “the work carried out at” each of the addresses specified in pars 1(i)-(iv) which for convenience I will refer to as the Panania site, the West Pennant Hills site, the Eastlakes site and the Turramurra site (see also at [34] below, pars 5(i)-(iv)). The relevant information sought in the Notice in relation to the work carried out at each of those sites is as follows:

“1. In relation to the work carried at each of the following addresses:

…

(a) the names of all individuals involved in the work, each of their employment statuses (i.e. full-time, part-time, contractor, subcontractor) and the specific task(s) completed by each individual; and

(b) the name of the responsible person and the details of their contractor licence and/or supervisor certificate.”

33. Furthermore, Schedule A of the Notice specified the following information was to be provided in relation to the plaintiff from the period 1 June 2025 up to the date of the Notice, being 19 November 2025 (“relevant period”):

“2. In relation to [the plaintiff] the following information for the period 1 June 2025 to the date of the notice (relevant period):

(a) List of all employees;

(b) List of all subcontractors employed for the relevant period;

(c) List of all trading names, registered business names, assumed names, and any other business identifiers used by the company in the course of its operations, advertising, correspondence, consumer contact, or contractual activities, and specify for each name whether it is formally registered, the jurisdiction of registration, and the entity under which it is registered;

(d) The full name of ‘Kylie’ and her employment statuses (i.e. full-time, part-time, contractor, subcontractor), her role in the company; and the specific task(s) assigned to her in this role;

(e) Full name of ‘Christine’ and her employment statuses (i.e. full-time, part-time, contractor, subcontractor), her role in the company; and the specific task(s) assigned to her in this role;

(f) Full name of ‘Jesse’ [sic] and his employment statuses (i.e. full-time, part-time, contractor, subcontractor), his role in the company; and the specific task(s) assigned to him in this role; and

(g) Full name of ‘Anthony’ and his employment statuses (i.e. full-time, part-time, contractor, subcontractor), his role in the company; and the specific task(s) assigned to him in this role.”

34. Schedule B of the Notice identified the categories of documents to be produced by the plaintiff as the following:

“3. All documents recording agreements with [Australian Trades];

4. All invoices, statements, or billing records related to transactions between [the plaintiff] and [Australian Trades];

5. In relation to the work carried [out] at the following addresses:

i. [XXX] Wilson Street, Panania, NSW 2213;

ii. [XXX] Glenfern Close, West Pennant Hills, NSW 2125;

iii. [XXX] Mascot Drive, Eastlakes, NSW 2018; and

iv. [XXX] Ancona Road, Turramurra NSW 2074.

(a) Copies of all CCTV footage;

(b) Copies of all photographs; and

(c) all correspondence between the customers and the company including but not limited to, emails, letters, disclosures, notices, text messages, audio recorded conversations, chat or portal messages.”

A summary of the plaintiff’s submissions

35. The plaintiff submitted that the Notice was unauthorised, invalid and of no effect for the following reasons:

36. the power conferred by ss 127(2)(a) and (b) of the HB Act is conditioned relevantly:

(a) on the Secretary having reason to believe that a person is capable of giving “relevant information” or producing a document containing “relevant information”; (b) relating to an investigation by the Secretary into a matter that is or may be the subject of disciplinary proceedings under the HB Act; and (c) as a matter of statutory construction, the Notice must disclose that the Secretary is entitled to require the plaintiff to give or produce “relevant information” because the information relates to a “matter” of the kind relevantly contemplated by s 127(1)(c) of the HB Act, referred to as the implied “entitlement disclosure condition”.

36. The plaintiff submitted that the word “matter” should be construed in its ordinary sense that being a body of facts being investigated which is or may be the subject of disciplinary proceedings under the HB Act.

37. The plaintiff contended that in contravention of the implied entitlement disclosure condition, the Notice did not identify any “matter” pursuant to which an investigation by the Secretary is or may be the subject of disciplinary proceedings under the HB Act. The plaintiff argued that this meant the Notice did not provide the required disclosure because there was no way for the plaintiff to know why or indeed if the Secretary was entitled to require the requested information and documents.

38. As a matter of statutory construction, the plaintiff advanced three reasons why an entitlement disclosure condition should be implied into s 127(2) of the HB Act:

39. first, s 127(2) imposes limits on the power to require production of information or documents. It does not allow the Secretary to require the plaintiff to produce any information at all. The power is limited by whether the information is “relevant information” (s 127(2)(a)) or whether the document contains “relevant information” (s 127(2)(b));

40. secondly, there is a significant breadth of the functions of the Secretary in relation to which a notice may be issued. It is therefore necessary to identify the relevant “matter” that is or may be the subject of disciplinary proceedings on the face of the Notice as the plaintiff would not otherwise be able to assess the relationship or relevance between the information and documents sought and the functions and powers being exercised by the Secretary; and

41. thirdly, there are significant and serious consequences which flow from the plaintiff’s failure to comply with the Notice or from knowingly giving false or misleading information. This is an offence under s 127(4) of the HB Act, which carries a maximum penalty of 1,000 penalty units (which is up to $110,000: s 17 of the *Crimes (*Sentencing Procedure) Act 1999 (NSW)) for a corporation such as the plaintiff. Furthermore, the plaintiff is not excused from giving any information on the ground that it may tend to incriminate them under s 127(5) of the HB Act. However, it should be noted that under s 127(6) any information or document obtained is inadmissible in criminal proceedings other than proceedings for an offence under this section.

42. The plaintiff referred to various authorities which recognised that there is no universal rule as to the implication of the entitlement disclosure condition into a notice provision in any given statutory scheme but rather that the analysis must turn on s 127(2) of the HB Act.

43. The plaintiff submitted that there was no “matter” referred to at all in the Notice (i.e. what the matter that is or may be the subject of disciplinary proceedings) and the plaintiff could not be expected to infer what the “matter” is. It was further submitted that the plaintiff should not be required to “reverse-engineer” what the body of facts constituting the “matter” were from the information and documents sought by the Secretary, as this was an impossible task because of the scope of the information sought.

A summary of the defendants’ submissions

45. The defendants pointed out that the plaintiff’s submissions raised a new point for the first time in arguing that there had been a purported breach of the “entitlement disclosure condition” which is implied in s 127(2) of the HB Act, and required that the recipient of a notice must be able to ascertain that the Secretary or Authority was entitled to request that information. In response to this proposition, the defendants first submitted that the standard of disclosure required to satisfy this obligation must be adapted to the context in which the notice is issued, including the particular statute in question. In the context of s 127 of the HB Act, there are important limitations to any implied entitlement disclosure condition due to the broad statutory definition of “relevant information” and the investigative context of information requested.

46. Secondly, the defendants submitted that the full factual context of the Notice was relevant as the factual circumstances in which the Notice was issued had been detailed in the notice to show cause sent to the plaintiff which was included in the defendants’ tender bundle (marked as Ex 1 in the hearing). The defendants argued that the content of the Notice and the circumstances in which it was issued discharged any requirement on the defendants to disclose the matter to which the Notice relates.

47. The defendants referred to a number of authorities relating to the former s 155(1) of the Trade Practices Act 1974 (Cth) (“the TPA”) and pointed out that in contradistinction with s 155, the power to issue a notice under s 127 of the HB Act does not impose a precondition of the existence of a particular state of mind or affairs. The defendants submitted that the statutory power of disclosure must be tailored to the specific statutory context of the power in dispute. It was further submitted that where the statutory power may be exercised in relation to a broad range of matters, the standard of such a notice is to be evaluated according to the meaning which it conveyed to the recipient of the notice, taking into account the description of documents sought and the context in which it was received.

48. The defendants submitted that the plaintiff would have been aware of the nature and scope of its conduct under investigation, as the plaintiff had been notified of the complaints in relation to the four addresses listed in the Notice at the time it was issued.

49. In oral submissions, counsel for the defendants, Mr Bagley, referred to the details of the complaints in the notice to show cause which he submitted was evidence of the plaintiff’s knowledge at the time the plaintiff received the Notice. Mr Bagley accepted that in respect of the West Pennant Hills site, there was no communication from the BCNSW or a direct complaint by the customer prior to the Notice being issued, however the plaintiff had attended the site “in the two or three weeks leading up to the [N]otice being issued at this address, and there is an invoice being charged in relation to that work, and subsequently, there is a complaint and a refund”: Tcpt, 23 June 2026, p 28(24-30).

Consideration

53. It is uncontroversial that the plaintiff bears the onus of proving the invalidity of the Notice: see, eg, AB Pty Ltd v Australian Crime Commission (2009) 175 FCR 296; [2009] FCA 119 at [8] (Flick J) (“AB Pty Ltd”).

54. The first contention made by the plaintiff as to the invalidity of the Notice was that the power conferred by s 127(2) of the HB Act is relevantly conditioned on the Secretary having reason to believe that a person is capable of giving “relevant information” or producing a document containing “relevant information”. This contention must be rejected.

55. Unlike the language of s 155(1) of the TPA which expressly provides for “where the Commission, the Chairman or the Deputy Chairman has reason to believe that a person is capable of furnishing information, producing documents or giving evidence relating to a matter that constitutes, or may constitute, a contravention of this Act …”, which was considered to be an express limitation of the power conferred under s 155(1), no such express limitation appears in the language of s 127(2) of the HB Act: see Pyneboard at 373; Aurora Construction Materials Pty Ltd v Victorian WorkCover Authority [2018] VSCA 165 at [41] (Maxwell P), [81] (Kaye JA, Tate JA agreeing) (“Aurora”).

56. There is no reason, having regard to the relevant statutory provisions of the HB Act which are discussed at [63]-[73] below that such a requirement should be implied. As the defendants submitted, the power under s 127 of the HB Act is enlivened where the relevant body issuing the Notice is an “authorised person” under s 127(1), whilst the type of information that may be requested is “relevant information”, meaning information about those matters in s 127(1)(a)-(g).

57. At the forefront of the plaintiff’s case was the contention that an “entitlement disclosure condition” is implied in s 127(2) of the HB Act. In Director, Professional Services Review v Yoong (2025) 311 FCR 312; [2025] FCAFC 95 (“Yoong”), which concerned the validity of a notice issued by the Director of Professional Services Review under s 89B of the Health Insurance Act 1973 (Cth) to obtain the documents sought from Dr Yoong, the Full Court of the Federal Court recently described the entitlement disclosure condition at [100] (O’Bryan, Rofe and Horan JJ) as:

“The requirement that a notice to produce must not only specify the documents or information sought with sufficient clarity to enable its recipient to know what is required, but must do so in a manner that discloses that the person giving the notice is entitled to require the recipient to produce the documents or to furnish the information, has been described in some cases as the ‘entitlement disclosure condition’: see SA Brewing Holdings Ltd v Baxt (1989) 23 FCR 357 at 369-370 (Fisher and French JJ) (SA Brewing); Federal Commissioner of Taxation v Pilnara Pty Ltd (1999) 96 FCR 82 at [27] (Wilcox, Hill and Carr JJ) (Pilnara).” (emphasis added)

58. In SA Brewing Holdings Ltd v Baxt (1989) 23 FCR 357 (“SA Brewing”), Fisher and French JJ at 370 explained that a notice must “disclose the necessary relationship between the information sought and the matter in respect of which it is sought”. In this context, the word “matter” should be construed in its ordinary sense that is being a body of facts which constitute, or may constitute, a contravention of the HB Act (including allowing for undiscovered facts): see Melbourne Home of Ford Pty Ltd v Trade Practices Commission (1979) 36 FLR 450 at 474 (Franki and Northrop JJ); [1979] FCA 15 (“Melbourne Home of Ford”); WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175 at 179 (Brennan J, Bowen CJ and Lockhart J agreeing); [1980] FCA 79; SA Brewing at 360 (Fisher and French JJ); Singapore Airlines Ltd v Australian Competition and Consumer Commission [2009] FCAFC 136; (2009) 260 ALR 244 at [36]-[38] (Black CJ, Mansfield and Jacobson JJ); see also D*’*Anastasi v Environment, Climate Change and Water (NSW) (2011) 81 NSWLR 82; [2011] NSWCA 374 at [39]-[43], [51]-[55] (Young JA, Campbell JA and Sackville AJA agreeing).

59. Although there was no express acceptance by the defendants that an entitlement disclosure condition is to be implied in s 127(2) of the HB Act, the defendants accepted that as a general rule compulsory notices should reasonably demonstrate that the issuing authority is entitled to demand the information requested.

60. As the authorities establish an entitlement disclosure condition is not universally implied into all statutory provisions which provide a power for a notice to be issued for the production of documents and information: Mosaic Brands Ltd v Australian Communications and Media Authority (2022) 294 FCR 119; [2022] FCAFC 79 at [59]-[61] (Collier, Abraham and Cheeseman JJ) (“Mosaic”); Yoong at [103] (O’Bryan, Rofe and Horan JJ). Neither does the text of s 127 or any provision of the HB Act expressly state that an entitlement disclosure condition applies to notices issued under that section. Accordingly, whether an entitlement disclosure condition is to be implied into s 127(2), and if so, the necessary content of the notice, is a matter of statutory construction which arises from considering the text and context of the particular statute: Mosaic at [61]; Aurora at [78] (Kaye JA, Tate JA agreeing); Y**oong at [103].

61. The principles of statutory construction are well-established. The construction of a statutory provision “begins and ends with the statutory text” considered in light of its context and purpose: (2025) 99 ALJR 1362; [2025] HCA 35 at [4] (Gageler CJ, Gordon, Jagot and Beech-Jones JJ) (“”); (2017) 262 CLR 362; [2017] HCA 34 at [14] (Kiefel CJ, Nettle and Gordon JJ), [37]-[39] (Gageler J). Context is used “in its widest sense” and includes having regard to the legislative history and extrinsic materials if “it assists in fixing the meaning of the statutory text”: (1997) 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); [1997] HCA 2; (2012) 250 CLR 503; [2012] HCA 55 at [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ); at [5]-[6] (Gageler CJ, Gordon, Jagot and Beech-Jones JJ).

Relevant provisions of the HB Act

63. The HB Act is a complex statute: see, eg, The Owners – Strata Plan No 66375 v King [2018] NSWCA 170 at [290], [293] (Ward JA, as the President then was). When the HB Act was enacted in 1989 it was originally called the Building Services Corporation Act 1989 (NSW) and that title continued up until 1996 when it was subsequently changed to the Home Building Act following the commencement of the Building Services Corporation Legislation Amendment Act 1996 (NSW): see also Festa Holdings Pty Ltd (in liq) v Adderton [2004] NSWCA 228; (2004) 12 BPR 22,491 at [22]-[25] (Mason P, Sheller JA and Stein AJA agreeing).

64. The long title of the HB Act describes it as an “Act to make provision concerning the residential building industry and certain specialist work; and for other purposes”. Although there is no specific reference in the HB Act to consumer protection as one of its purposes or objects, it is apparent from the legislative history and what is said in the relevant extrinsic materials that a broad legislative intention underlying the HB Act is to promote consumer protection in the residential building industry. For example, in the Second Reading Speech to the Building Services Corporation Bill 1989 (NSW), the then Minister for Housing mentioned that the legislation was “the Government’s response to the call for a new approach to consumer protection services in the building industry”: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 18 October 1989 at 11411. Furthermore, in the Second Reading Speech to the Building Services Corporation Legislation Amendment Bill 1996 (NSW), the then Minister for Fair Trading concluded by stating that “the reforms which I have outlined will see the beginning of a new era for consumer protection in the home building industry”: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 30 October 1996 at 6.

65. Part 4 of the HB Act, headed “Disciplinary Proceedings” contains ss 50-69 and relevantly establishes a regime which governs the powers of the Secretary taking disciplinary action against a holder of a contractor licence, supervisor certificate or tradesperson certificate (see Sch 1 for definitions) and also sets out the types of disciplinary action that may be taken which includes cancellation under s 62(1). Further, ss 51-54 identify particular types of circumstances and conduct where a holder of a licence or certificate “is guilty of improper conduct”.

66. Division 2 of Part 4 of the HB Act, headed “Disciplinary action”, contains ss 55-69. Relevantly, s 55 defines “authority”, for the purposes of that Division, as meaning any one of three types of licence or certificate that can be issued under the , and that authorise the holder to engage in a particular type of conduct in the residential building industry.

Is there an implied entitlement disclosure condition for notices under s 127(2) of the HB Act?

74. Having regard to the relevant statutory provisions of the HB Act discussed above, I am satisfied that an entitlement disclosure condition is to be implied in s 127(2) of the HB Act. The condition is implied for the following reasons:

75. section 127 imposes a limit on the broad power to obtain information;

76. the width of the range of matters in ss 127(1)(a)-(g) for which relevant information may be sought;

77. the consequences that flow from the refusal or failure to comply with the notice is punishable under s 127(4) by way of a pecuniary penalty: see Pyneboard at 370; Seven Network Ltd v Australian Competition and Consumer Commission (2004) 140 FCR 170; [2004] FCAFC 267 at [49] (Sackville and Emmett JJ, Tamberlin J agreeing) (“Seven Network”); and

78. the principles of procedural fairness require the recipient of the notice to be informed of the basis upon which the Secretary is entitled to require the recipient to furnish the information specified in the notice together with the information being specified with sufficient clarity: see Smorgon*’*s Case at 525 (Gibbs ACJ); Pyneboard at 374; Mosaic at [99].

79. When considering whether the Notice specifies with reasonable clarity the information required or documents to be produced and sufficiently discloses the basis on which the Secretary is entitled under s 127 of the HB Act to require the information or documents sought, the Notice is not to be considered in isolation of the context in which it was issued: see Pyneboard at 375; Mosaic at [77]-[80]. Regard may be had to:

80. the identity of the recipient and the knowledge available to that recipient (including the experience and sophistication of the recipient): see Seven Network at [75]; AB Pty Ltd at [50]; see also Construction, Forestry and Maritime Employees Union v Brandon-Baker [2025] FCA 277 at [28]-[30] (Anderson J) (“CFMEU v Brandon-Baker”); Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 2) [2007] FCA 493; (2007) 240 ALR 135 at [40] (Bennett J); and

81. the investigative context in which the notice is issued: see Aurora at [88]; Pyneboard at 376; CFMEU v Brandon-Baker at [42].

82. It is well-established that the validity of a notice should not be approached in a precious, over-technical or hypercritical way: Pyneboard at 376; SA Brewing at 370; Aurora at [88]. The Notice should also be construed in a practical and common sense manner: at [37]; at [24]. As the authorities make clear, it is not required that the Notice plead all the facts necessary to constitute a contravention or possible contravention of the : at 370; at [67]; at [90]-[92].

The Notice

77. The plaintiff’s principal submission is that having regard to the implied entitlement disclosure condition, the Notice does not sufficiently disclose the relationship between the information sought and the “matter” identified in the Notice.

78. The Notice does disclose the basis that Ms Siciliano seeks the production of the information being the belief that the information relates to “an investigation by the Secretary into a matter that is or may be the subject of disciplinary proceedings under [the HB Act]”. It would be clear to the plaintiff that the Notice was directed to s 127(1)(c) of the HB Act. However, “relevant information” in that context means “an investigation by the Secretary into a matter that is or may be the subject of disciplinary proceedings under [the HB Act]”. In contending that the Notice did not identify a matter at all which was the subject of an investigation by the Secretary, the plaintiff referred to the width of the grounds under s 56 of the HB Act, that the Secretary may take into account under s 62 against the plaintiff and the variation of circumstances that amount to “improper conduct” under ss 52-54.

79. It is plain that the investigation by the Secretary when the Notice was issued was at an early stage and the information sought by the Notice might be necessary to fill “in gaps of information, or to elucidate matters that are unclear” or to ascertain facts which may indicate a further line of inquiry: Aurora at [88]; Melbourne Home of Ford v Trade Practices Commission (No 3) (1980) 47 FLR 163 at 174 (Brennan, Keely and Fisher JJ); [1980] FCA 94; Harris v Mathieson (in his capacity as an authorised officer under the Water Management Act 2000 (NSW)) [2019] NSWSC 1064 at [24] (Davies J). The Secretary’s power to investigate arises irrespective of whether there has been a complaint and “the validity of such a notice should not be addressed in an over-technical or hyper-critical manner” so as to ensure the progress of a legitimate investigation by an “authorised person” is not impeded from using the power provided under s 127 of the HB Act to pursue consumer protection in the residential building industry: Aurora at [88]; Pyneboard at 376; SA Brewing at 370.

80. It follows that the Notice is neither required to specify in precise terms which grounds under s 56 of the HB Act the Secretary may take disciplinary action nor to plead all the facts upon which the Secretary may rely on to constitute the contravention or possible contravention: SA Brewing at 370; Seven Network at [67]; Aurora at [90]-[92]. To require the Secretary to give a Notice in the terms contended by the plaintiff at an early stage of the investigation would impose an impossible burden on the Secretary: *’* at 537.

Severance of the Notice?

93. The defendants contended that severance of any part of the Notice that is found to be invalid is possible so as to preserve the validity of the remaining parts of the Notice as the various categories of information sought can be separated and are not inextricably mixed. The plaintiff contended that severance is not possible as the failure to identify a matter means the Notice does not conform with the statutory limitation implied by s 127 of the HB Act.

94. The plaintiff placed reliance on the body of authority referred to in CXXXVIII by Logan J at [16]-[17] with the leading case being what was said by Mason J in Smorgon*’*s Case at 537 where his Honour observed in relation to notices issued under s 264 of the ITAA 1936 that “[a]s the Commissioner’s coercive power to require production is limited, any notice given in exercise of the power must in terms conform to the statutory limitations if it is to be valid”.

95. As I have found that the Notice, with the exception of the three paragraphs mentioned at [92] above, conforms with the statutory limitations imposed under the HB Act on the Secretary, the body of authority referred to by Logan J in CXXXVIII at [16]-[17] has no application to the present question on the issue of severance.

96. The possibility of severance of a notice so that the valid portion can be severed from that which has been determined to be invalid has been accepted by a number of decisions: see, eg, Pyneboard at 377; Fieldhouse at 195 (Lockhart J), 204 (Burchett J); Amalgamated Television Services Pty Ltd v Australian Broadcasting Tribunal (1989) 91 ALR 363 at 378 (Morling, Burchett and Hill JJ); see also United Petroleum at [66]; Laing at [38], [215]-[216]; CXXXVIII at [19]. In Pyneboard, the Full Court of the Federal Court at 377 (Northrop, Deane and Fisher JJ) acknowledged the possibility of severance but qualified it in the circumstances where “deletion of what is invalid is not practicable” or where if practicable it “would result in what is substantially a different question”. In Fieldhouse, Lockhart J at 195 (with whom Burchett J agreed), although accepting the availability of severance, concluded that severance of the notice was not possible because if excised the remaining requirements would be unintelligible, considering that the invalid portions were “so inextricably mixed with the valid that it would be unduly onerous to require the recipient to disentangle them …”. Burchett J at 204 took a similar view as Lockhart J by recognising that undoubtedly in appropriate cases the court can sever an invalid portion of a notice but concluded that the invalid parts of the notice could not be severed as it would render the notice unintelligible.

Orders

100. Accordingly, I make the following orders:

101. Declare paragraphs 2(a), (b) and (c) of Schedule A of the Notice issued on 19 November 2025 to be invalid.

102. Order that subject to the declaration in Order 1 above, the summons be dismissed.

103. As to costs:

(a) Direct that any submissions by the plaintiff as to costs, not exceeding 3 pages, be filed and served by 5:00pm on 17 July 2026. (b) Direct that any submissions by the first and second defendants as to costs, not exceeding 3 pages, be filed and served by 5:00pm on 24 July 2026. (c) Direct that any submissions by the plaintiff in reply, not exceeding 1 page, be filed and served within 2 days of receipt of the submissions provided for in Order 3(b) above. (d) Note that the issue of costs will be determined on the papers.

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