Price v Commissioner for Fair Trading

Jurisdiction

1. The Tribunal has jurisdiction to review the Commissioner's refusal of an Applicant's application for a contractor licence under s 83B(1) of the Home Building Act, s 9 of the Administrative Decisions Review Act 1997 (NSW) and s 30 of the Civil and Administrative Tribunal Act 2013 (NSW).

Legislation

1. The Home Building Act 1989 ("the Act") is part of the legislative scheme which regulates many aspects of the home building industry in New South Wales. The scheme is concerned to provide consumer protection including regulating the issue, suspension and cancellation of various licences in relation to residential building work.
2. A contractor licence authorises the holder to contract to do certain residential building work (Home Building Act, s 21) and an endorsed contractor licence authorises its holder to do (and to supervise) the same residential building work, or specialist work, as it authorises its holder to contract to do (Home Building Act, s 28(1)).
3. Section 20(1)(a1) of the Act provides that the Secretary must refuse an application for a contractor licence if, relevantly, he or she is not satisfied as to the matters of which he or she is required to be satisfied by sections 33B and 33C of the Act.
4. Section 33D(1)(b) of the Act specifies that a tradesperson certificate must not be issued unless the Secretary is satisfied that the Applicant has had experience of such a kind and for such a period as the Secretary considers would enable the Applicant to do, or to supervise, the work for which the certificate is required.
5. In determining that Mr Price did not have the requisite experience for the purposes of s 33D(1)(b) , the Commissioner relied upon a document headed "Instrument - Qualification Requirements for an endorsed contractor licence or supervisor certificate for general building work" dated 31 March 2017 ("the Instrument"). The Instrument sets out the kind of experience and the period of experience which the Commissioner generally considers would enable an Applicant to do, or to supervise, the work for which a supervisor certificate is required. The Commissioner assesses all applications in the same category of licence or certificate against the relevant matters in the Instrument.
6. The Instrument has qualification requirements which Mr Price meets as he holds a Certificate IV in Building and Construction Building. The Instrument provides that an Applicant must demonstrate at least two years' relevant industry experience in a wide range of building construction work, where the majority of that experience was obtained within ten years of the date on which the application was made.
7. The Instrument defines "experience" as experience gained by an Applicant as: (a) an employee of; or (b) a holder of a supervisor certificate and as a nominated supervisor for the contractor licence held by; or (c) a holder of an endorsed contractor licence contracted to; or (d) a holder of a supervisor certificate in the capacity of a nominated supervisor for a contractor licence held by an individual, partnership or corporation contracted to; the holder of a contractor licence authorising the holder to do the class of residential building work in which the experience was gained ("the Work"), where the Applicant, during the relevant period, was: supervised and directed in the doing of the Work by the holder of an endorsed contractor licence or supervisor certificate authorising its holder to supervise the Work, and this is verified in the Relevant Application Form; and received Remuneration in accordance with law for the Work which the Applicant carried out.
8. The Respondent noted in its submission that the standards are also set out in the NSW Fair Trading publication entitled "Building - Approved Qualifications and Experience" which can be downloaded from the Fair Trading website. The publication includes a "Note to Applicants" which in part states: the majority of the sites must be for periods of time within 10 years of the application date to ensure the Applicant meets the current requirements…

The Respondent's Reasons for Refusal

1. On 19 February 2020, the Respondent refused the application on the basis that the Secretary was not satisfied that Mr Price had obtained two years' "acceptable experience relevant industry experience" (sic) in a wide range of building construction work. Further, the duration for which Mr Price was involved on each site did not demonstrate that he was involved in all stages of construction work. The Respondent affirmed this decision on internal review on 12 March 2020.

The Respondent's case

1. At the hearing, the Respondent withdrew the statement made in assessment of Mr Price's application that the works were primarily remedial or related to insurance matters.
2. The Respondent pressed that Mr Price did not satisfy the requirements of the Instrument and that he had not had two years of experience over the past 10 years in a wide range of building construction work.
3. Mr Buttigieg's referee statement, his onsite building experience forms and his evidence all showed that the greatest proportion of work undertaken by Mr Price with Mr Buttigieg had been in bathrooms. There was one kitchen referred to. This in itself meant that Mr Price's experience did not meet the requirements set out by Deputy President Hennessy in the matter of Locking. See Locking v Department of Finance and Services [2013] NSWADT 239. Mr Price had not demonstrated experience in a wide range of building work.
4. It was of some concern that Mr Price had not renewed his licence after September 2019 but had continued to work in the business.
5. There was also concern that with or without a licence, Mr Price may have been working, doing things for which he was unlicensed such as waterproofing and building structural walls.
6. The Diploma Bathrooms' website also referred to both Mr Buttigieg and Mr Price as licensed builders. This was incorrect and misleading.

Mr Price's case

1. Mr Price's application was a reapplication for a previously held licence as a builder which had expired on 5 March 2009. In his application he set out the following work history.
2. He had worked in the building industry for 37 years. From 1974 to 1982 he had worked for GF Lowery Pty Ltd in carpentry. From 1980 to 1989 he had worked for Trend Windows as an estimator/admin. From 1990 to currently he had worked for E. Buttigieg builder as a building supervisor.
3. He had held a carpentry licence from 1992; a waterproofing licence from 2001; a builder licence from 2002- 2009; a joiner licence from 2008 and a kitchen bathroom laundry licence from 2009 which expired in September 2019. Mr Price attached his most recent contractor licence which showed that he was licensed until 24 September 2019 as a carpenter, joiner, waterproofing technician (acrylic membranes only) kitchen bathroom laundry renovator.
4. Mr Price had obtained a certificate IV in building and construction (building) issued on 5 March 2019.
5. Mr Price provided various documents in support of his application to the Respondent, additional documents during the assessment of his application and with his request for an internal review by the Tribunal of the Respondent's initial decision.
6. With his application for his licence Mr Price provided an undated letter which stated that: " for the past 10 years we are focused on high-end major bathroom kitchen renovations which involves structural works, waterproofing and organisation of subcontractors and clients alike. We often have multiple projects running and my supervisor/employer has completed the building experience form for at least 24 months although we have been continually working together for over 28 years, have not detailed all our projects."
7. Mr Price provided a letter from Ron Hoy licensed plumber, drainer, gas fitter and installer dated 24 December 2018. Mr Hoy stated that he and Mr Price had worked together on many sites.
8. Mr Price provided a letter from Fred Lowery of GF Lowery Pty Ltd, undated, referring to a specific job in which Mr Price had worked as a carpenter at Glenhaven from September to December 1990.
9. Mr Price claimed that he had major structural building experience from 2002 to 2009 as a licensed builder carrying out all types of residential building works including but not limited to new builds and extensions to exiting (presumed existing) dwellings.
10. Mr Price provided a letter dated 10 January 2020 from his accountant stating that he was a direct subcontractor of Mr Buttigieg, receiving weekly payments categorised as salary income. A letter from Mr Buttigieg's accountants dated 13 January 2020 noted that Steve Price is a direct subcontractor of Mr Buttigieg and receives weekly contractor payments.

Mr Price's evidence at hearing

1. At the hearing Mr Price stated that his 37 years in the building industry meant that he had all the necessary experience. He was concerned that no one had contacted his employer Mr Buttigieg prior to refusing his application, or since. There was insufficient space on the forms provided to show all of his experience. He had not reapplied when his licence expired in September 2019 because he was applying for his builder's licence and Department of Fair Trading officers had told him that he did not need to do so. He was aggrieved that the original decision maker had termed his work as remedial. He acknowledged that this was no longer the view of the Department of Fair Trading. His employer Mr Buttigieg had nurtured and taught him many skills.
2. Under cross examination Mr Price agreed that over the last few years his work mainly consisted of bathrooms and kitchens. However, he stated that when you do a bathroom renovation you often change a room around. This involves changing the ceiling, joists and some gyprocking. He had supervised building under Mr Buttigieg's licence. They use subcontractors where necessary. He was familiar with the building code and the standards required. He considered that doing bathrooms and kitchens and laundries applied the same basic principles as building a home. You are required to do the job on time, on budget and to the satisfaction of the client.
3. When asked about the Diploma Bathrooms website which referred to himself and Mr Buttigieg as both being licensed builders, he said that it was within his rights to do so.
4. A letter of reference from Mr Battin, builder, dated 6 June 2020 referred to 3 sites. Mr Price said that he had supervised subcontractors there and helped them when needed. He had been required to correct some of the work. He had drawn on his past experience as a builder when doing this. He thought that the building industry had not really changed in the last 20 years. "You always build to principles and code."
5. From 2002 to 2009 he had been a licensed builder working for himself and others doing renovations and homes. Mr Price did not expand upon this. He had experienced a period of ill health. Since 2016 many of the jobs he did for Mr Buttigieg had not required development applications. He had not provided on-site building experience forms for these jobs.

Evidence of Mr Buttigieg

1. Mr Buttigieg provided the following documents in support of Mr Price's application:

• A Department of Fair Trading referee testimonial form signed 11 December 2018;
• A Department of Fair Trading referee's report dated 10 January 2020, with 21 attached on-site building experience forms relating to jobs between 2010 to 2016;
• an undated statement addressed to whom it may concern; and
• his letter of 24 July 2020 in relation to Mr Price's skills and experience with Diploma Bathrooms.

1. Mr Buttigieg's letter set out that Mr Price had first worked with Mr Buttigieg when they had operated Invader Homes which no longer operates. They had built an average of 30 residential dwellings per year. During the period Mr Price had been responsible for client liaising; timber framework; roof frame set out; fascia and eve/soffit work; scheduling and ordering of windows and doors; general fit out works; and site management and maintenance.
2. Mr Buttigieg stated that Mr Price's responsibilities with Diploma Bathrooms included client liaising; preparation of quotations and contract; management of business systems and client progress payments and ordering and scheduling of materials, PC items and contractors. Mr Price was also solely responsible for all waterproofing works and manages the finish off and client handover of every job. He worked on the tools every day. Mr Buttigieg supported Mr Price's efforts to upgrade his current licence and become a fully licensed builder.
3. Mr Buttigieg also completed a referee testimonial dated 11 December 2018 on a Department of Fair Trading form. In this he stated that Mr Price had worked at Diploma Bathrooms for a period of 28 years and had regularly undertaken all of the skills/competencies set out in the form.
4. For some jobs since 2016 they had not required development applications. He also said there was insufficient room on the forms to fill in all the information about Mr Price's work. Mr Price was hard-working. He was on-site at 7 AM to 2:30 PM. In the afternoon he would do quotations and then complete bookwork. He also works on weekends. He had not been aware that Mr Price had not held a licence since September 2019. He agreed that most of the work over the last 20 years had been bathrooms and some kitchens. In his terminology, joists ceilings and walls are structural - although others may not call them that. Mr Price had undertaken waterproofing under his supervision. They do not do gyprocking - they use another method. When he was taken to specific on-site forms, Mr Buttigieg said that Mr Price helps him to do the structural work. Subcontractors do things like tiling and plumbing. Diploma Bathrooms undertakes many smaller jobs. Mr Price helps him and oversees subcontractors if Mr Buttigieg is not on-site. He agreed that bathrooms and kitchens are only part of the work of building a house. He was not aware of what was on the website about Diploma Bathrooms as he does not often turn on the computer.

Evidence of Mr Paul Lawrence

1. Mr Lawrence has a Masters in building training and is a carpenter by licence. He trains many Applicants in the building industry. He assisted Mr Price to complete his application. He had never worked with Mr Price.
2. Mr Lawrence said that the fundamental problem with the Department of Fair Trading's assessment of Mr Price's application was a misunderstanding of the role and skills of carpenters. They are able to supervise on building sites. They are able to demolish and build walls. He considered that a tradesperson applies the same principles to undertaking small renovations as when building a whole house. A builder does not undertake trade work him or herself. The application forms provided by Department of Fair Trading did not allow Mr Price to put in the full range of his experience.
3. Mr Lawrence criticised the way in which the Instrument in relation to experience is interpreted. It was appropriate for Mr Price to do structural work under the supervision of Mr Buttigieg's licence. Mr Buttigieg had attested to the fact that Mr Price held all the relevant skills in the application form dated 11 December 2018 .

Evidence of Mr Brian Battin.

1. Mr Battin have provided a letter dated 8 June 2020 concerning three sites on which Mr Price had worked with him
2. The first site was a Young Street Redfern from 4 March 2016 to 23 May 2016 - a period of one month and 20 days. Mr Battin noted that the job required the setting out of footings, pouring of slab, erecting of structural steel frames and roof, installation of box gutters and roof sheeting for alterations and additions to an existing dwelling including a new garage with studio above. The letter did not address Mr Price's role in supervision of the work and other trades on-site.
3. A second site at Hornsby Heights was from 28 July 2017 to 5 October 2017 covering two months and nine days. It consisted of alterations and additions. The work there was cut and erect frames, installation of roof trusses, waterproofing, installation of eaves and cladding. This experience on-site covered two months and nine days. However, the letter did not set out Mr Price's role in supervision of work and other trades on-site
4. A third site was at Doncaster Avenue, Kensington. The work involved erecting scaffolding, stripping of roof tiles and existing framing, installation of steel beans, fixing of floor joints and floor sheeting, installation of windows, installation of flash cladding. The letter did not set out the time period of the job or state Mr Price's role in the supervision of work and other trades onsite.
5. In a later letter dated 22 July 2020 Mr Battin stated that Steve worked with me supervising trades as well as the whole project. Mr Battin did not elaborate further. He commented that no one had called to confirm the reference.

Findings of Fact

1. The Tribunal must be satisfied "on the balance of probabilities" in its fact finding - see s 140 of the Evidence Act. It is a clear principle that an Applicant cannot verify the Applicant's own experience. The Tribunal relies upon third party evidence in establishing the nature of an Applicant's experience. The Tribunal is satisfied that Mr Price worked with Mr Buttigieg in Invader Homes from approximately 1990. Mr Buttigieg's letter "to whom it may concern" stated that they had built an average of thirty residential dwellings per year. This was not contradicted during the hearing. However, there was no detail provided as to the kind of work Mr Price had undertaken during this time or for how long he had worked for Invader Homes.
2. Mr Price told the Tribunal he had built homes and had done renovations as a builder between 2002 to 2009 - but he did not provide specific evidence of the work that he was performing.
3. Mr Buttigieg provided on-site forms in relation to 21 building sites on which Mr Price had worked with him over a period of 34 months between 2010 to 2016. The Tribunal notes that these forms attest to work for periods of 1 to 2 plus months with a three month plus period included. The descriptions of the work relate largely to work on bathrooms with one reference to a kitchen. The terms used include bathroom and waterproofing; construct new ensuite; new windows; ceiling: waterproofing construct new walls; moved walls; doorway. There were another six sites which accounted for 12 months work. In the majority of these no description was provided as to what work was performed at the six sites.
4. The Respondent submitted that 15 of the sites related to bathroom and associated work covering a period of two years and four months - representing 71.5% of Mr Price's work. This was not contradicted at hearing. Mr Buttigieg agreed that the work was largely on bathrooms. The Tribunal accepts the Respondent's calculation.
5. Mr Battin did not give evidence at the hearing. The Tribunal was unable to clarify the time periods that Mr Price was on-site with Mr Battin or Mr Price's precise roles.
6. The Tribunal has not been presented with any criticisms of Mr Price's work and there have been no complaints made to the licensing body about it.
7. Mr Price was awarded a Certificate IV in Building and Construction in March 2019 which satisfies the required qualifications in the Instrument.
8. The Tribunal makes no findings in relation to the allegation that Mr Price had incorrectly described himself as a licensed builder on the Diploma Bathrooms website. No evidence of the contents of the website was put before the Tribunal.
9. Mr Price has not been licensed by the Department of Fair Trading in the building industry since September 2019.There was no evidence before the Tribunal that Mr Price had undertaken any particular work that he was not entitled to undertake during this period.

Does Mr Price's experience meet the experience requirements ?

1. The Tribunal has consistently held that an Applicant alone cannot verify their own experience: Limberis v Commissioner for Fair Trading [2017] NSWCATOD 128; Grewal v Commissioner for Fair Trading [2014] NSWCATOD 101; Shoobridge v Commissioner for Fair Trading [2015] NSWCATOD 42; Trengrove v Commissioner for NSW Fair Trading, Department of Finance and Services [2015] NSWCATOD 131. Hence the Tribunal relies upon the evidence provided by Mr Buttigieg concerning the experience Mr Price obtained in working for him over the last 10 years.
2. Department of Fair Trading records show that Mr Buttigieg has held a builder's licence from 5 March 1991 which would have expired on 5 March 2020.
3. The Tribunal has before it a letter from Mr Price's accountants and another from Mr Buttigieg's accountants confirming that Steven Price is a direct subcontractor of Mr Buttigieg and receives weekly contractor payments. The Tribunal accepts Mr Buttigieg's statements that he supervised Mr Price in undertaking work.
4. In Zada v Director General Department of Finances and Services, NSW Fair Trading [2014] NSWCATOD 16 at [36] the Tribunal stated that: In the absence of a statutory definition of "employee" in the HB Act, the word must take its ordinary meaning - "a person working for another person or a business firm for pay" (Macquarie Online Dictionary).
5. The Tribunal is satisfied as required by the Instrument that in the 10 years prior to Mr Price's January 2020 application, Mr Price worked for Mr Buttigieg who was the holder of a contractor licence. Mr Buttigieg supervised and directed Mr Price who was receiving remuneration in accordance with the law.
6. Mr Price's experience with Mr Buttigieg appears from the evidence of Mr Buttigieg to relate primarily to work in renovating bathrooms with some work in kitchens. Mr Price was licensed as a "carpenter, joiner, waterproofing technician (Acrylic membranes only) Kitchen bathroom laundry renovator" from until 24 September 2019.
7. In Locking v Department of Finance and Services [2013] NSWADT 239 at [17-19] Deputy President Hennessey stated when referring to Mr Locking's stated experience as a carpenter: This experience in carpentry and joinery work is not the equivalent of "a wide range of building construction work" as required by the Instrument. Carpentry and joinery work is a sub-category of building. It is only one aspect of the work required to be done in order to complete the construction of a residential dwelling. A building contractor has the overall responsibility for a site and must be able to supervise all of the trades required to complete any type of dwelling. Additionally, a builder must be able to determine that all trades have complied with all standards and requirements. There are many gaps in Mr Locking's trade supervisory experience and therefore his understanding of certain trades. Those trades include flooring, bricklaying, stonemasonry, wet plastering, painting, decorating, general concreting, tiling, demolishing, fencing, glazing and waterproofing. A building contractor is also able to contract with the public, and must therefore be able to negotiate a contract, quote for a project and co-ordinate the trades to be able to complete the project on time and within budget. He or she must also be able to negotiate and discuss the jobs with council and private certifiers to ensure that the work is passed fit when appropriate.
8. Mr Price has not provided any independent evidence that he has undertaken or supervised such work as "flooring, bricklaying, stonemasonry, wet plastering, painting, decorating, general concreting, tiling, fencing, glazing". On the basis of Mr Buttigieg's evidence it cannot be said that Mr Price undertook a wide range of building construction work on projects over the preceding 10 years.
9. No evidence was put before the Tribunal that Mr Buttigieg had supervised Mr Price in the building of a new home during the 10 years preceding the lodging of his application in January 2020.

Should the Tribunal depart from the Instrument's provisions ?

1. Generally, the Tribunal stands in the shoes of the original decisionmaker when reviewing a decision. This means the Tribunal must apply the same legislation that bound the original decisionmaker. The Tribunal has held though that the Instrument is not binding on the Tribunal: Whitehouse v Commissioner for Fair Trading [2017] NSWCATOD 108 at [39]; Limberis v Commissioner for Fair Trading [2017] NSWCATOD 128 at [31]. The Instrument is a policy, but not "Government policy" as that term is defined in ss 50 and 64(1) and of the Administrative Decisions Review Act 1997 and is therefore not binding upon the Tribunal.
2. The Tribunal must not apply the Instrument inflexibly.
3. The Instrument requires that the majority of the experience in a wide range of building construction work be obtained within the 10 years prior to the making of the application. The Tribunal notes that Mr Price termed his application as an application reapplying for his previous builders licence held from 2002 to 2009. Mr Price did not elaborate on his experience as a licensed builder between 2002 and 2009. There were no referees reports or even Mr Price's own reports of the kind of work he was doing during this time. The Tribunal therefore did not have cause to consider any such experience in assessing Mr Price's capacity to meet licensing requirements.
4. At the hearing Mr Price insisted that he meets the requirements of the Instrument. Mr Lawrence did put to the Tribunal that he considered that the Instrument was not appropriate. Both Mr Lawrence and Mr Price argued that doing bathrooms and kitchens and laundries applied the same basic principles as building a home.
5. The Home Building Act 1989 is concerned with consumer protection. For the Tribunal to depart from the terms of the Instrument the Tribunal would need assurance that the Applicant had the skills necessary to undertake or supervise the building of a home.
6. As stated in Limberis, the requirement that an Applicant for the licence should have current relevant experience is a sensible one. See Limberis v Commissioner for Fair Trading [2017] NSWCATOD 128 at [31] Mr Price has not raised any matters which would lead to an unjust or unfair application of the policy in his case.

Conclusion

1. Mr Price argued that his 37 years in the building industry provided sufficient experience for him to obtain a builders licence. He held a builders licence between 2002 to 2009 and has held other licences in the building industry. He argued that he is familiar with the building code and the standards. He contended that a carpenter is able to supervise all of the trades and is experienced in all the fundamental structural principles. He stated that he had supervised other tradespersons. Mr Buttigieg stated that this occurred when he himself left a site to pick something up. Mr Price argued that the principles attached to building or renovating a bathroom or kitchen are the same as those in relation to other aspects of building a house. However, the Tribunal notes that the Instrument focuses on demonstration of the Applicant's experience in work. That is the evidence needs to show that the Applicant has had experience in undertaking the kind of work expected of the contractor. This is not the same as understanding the principles. In this respect, the Tribunal notes there are different principles that apply in the areas of plumbing, tiling, waterproofing, carpentry and painting. Each of these callings has its own applicable skills.
2. Mr Price has not demonstrated that he has the breadth of experience required for a licence in the category of general building work. There is a lack of evidence that Mr Price has, as required by the Instrument, a minimum of two years relevant industry experience in a wide range of construction work - the majority of which has been obtained in the 10 years prior to application. In the circumstances of this case, I see no reason to depart from the requirements of this aspect of the Instrument. I do not consider that application of the policy in this case on the basis of the evidence put before the Tribunal would produce an unjust decision. On the evidence before me I cannot be satisfied that Mr Price's experience is such that, although he may not strictly meet the requirements of the Instrument, he has otherwise demonstrated with evidence that he has extensive relevant experience which would qualify him to be granted a contractor licence in the category of general building work. No clear evidence was placed before the Tribunal that Mr Price had undertaken this role in the 10 years prior to the lodging of the application, or outside of this timeframe.
3. For these reasons, the decision under review must be affirmed.

Decision

1. In the circumstances, the decision to refuse Mr Price's application for a licence in general building work is the correct and preferable one. It should therefore be affirmed.

Order 1. The decision under review is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 21 August 2020