Romanov v Secretary, Department of Customer Service

Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Corporations Act 2001 (Cth)
Home Building Act 1989 (NSW)

Cases Cited: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Avila v Director-General, Department of Finance & Services, NSW Fair Trading [2014] NSWCATOD 53
Clarke v Commissioner of Fair Trading, Office of Fair Trading [2004] NSWADT 273
Goodman v Commissioner for Fair Trading [2023] NSWCATAP 260
Hotait v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2020] NSWCATOD 36
Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127
McGufficke v Commissioner for Fair Trading [2022] NSWCATOD 176
Meacham v Commissioner of Police [2020] NSWCATAP 107
NSW Self Insurance Corporation v EEH [2023] NSWCATAP 181
Poytress v Director General, NSW Fair Trading [2015] NSWCATOD 100
Smith v Commissioner of Police, NSW Police Force and NSW Fair Trading [2014] NSWCATAD 184
Spasevski v Commissioner for Fair Trading [2017] NSWCATOD 53
Wojciechowska v Secretary, Department of Communities and Justice; Wojciechowska v Registrar, Civil and Administrative Tribunal [2023] NSWCA 191

Texts Cited: Nil

Category: Principal judgment

Parties: Constantine Peter Romanov (Applicant)
Secretary, Department of Customer Service (Respondent)

Representation: Counsel
Ms J Ibrahim (Respondent)
Applicant (Self Represented)
Department of Customer Service (Respondent)

File Number(s): 2025/00298464

Publication restriction: Nil

REASONS FOR DECISION

Overview

1. This is an application made by Mr Romanov (the Applicant) for administrative review of a decision of the Secretary, Department of Customer Service (the Respondent) issued 2 July 2025 to refuse his application for an individual contractor licence in the category of carpenter (Internal Review Decision) under the Home Building Act 1989 (NSW) (HBA). The Applicant previously held a contractor licence which was cancelled by the Respondent on 8 July 2024 including because he failed to nominate a licenced supervisor.

2. The Respondent submits that the contractor licence should be refused because the Applicant was a Director of two companies placed into external administration. Accordingly, the Applicant does not satisfy the mandatory requirements in s 33B of the HBA to be granted a contractor licence.

3. Despite the mandatory requirements, the HBA does give the Respondent discretion under ss 33C (3) to issue a contractor licence if satisfied that there is no evident risk to the public that the Applicant will be unable to complete contracts to do residential building work or specialist work, he took all reasonable steps to avoid the liquidation and has put in place sufficient risk mitigation measures to avoid a repeat situation in the future. The Respondent contends that these matters are not satisfied and in addition, the Applicant is not a fit and proper person to hold a contractor licence.

4. The Applicant concedes that he does not satisfy the mandatory requirements in s 33B of the HBA to be granted a contractor licence. However he contends that the factors in s 33C(3) are made out and the licence should be granted. The Applicant submits that he took all reasonable steps to avoid external administration of the companies, there is no evident risk that he would be unable to complete small carpentry contracts under licence conditions he offers, he has put in place sufficient risk mitigation measures to avoid future external administration in relation to his proposed activities and he is a fit and proper person to hold an individual contractor licence.

5. For the reasons set out in this the decision the Tribunal has decided to affirm the Respondent’s decision to refuse the licence.

Material before the Tribunal

6. The Tribunal is assisted by a court book containing most of the documents relied on by the parties. References are to page numbers in the court book unless otherwise stated.

7. The Applicant relies on written submissions, oral submissions and was cross examined at the hearing.

8. The Applicant relies on the following documents:

9. Administrative Review Application form filed 5 August 2025 with Attachments.

10. Affidavit of Constantine Peter Romanov affirmed 13 October 2025 with Annexures CR-1 to CR-13.

11. Applicant’s submissions in reply dated 5 December 2025 filed 10 December 2025. The submissions in reply do not form part of the court book.

12. The Respondent relies on written submissions and oral submissions made at the hearing.

13. The Respondent relies on the following documents:

14. Respondent’s section 58 documents filed 13 October 2025.

15. Respondent’s written submissions dated 25 November 2025 filed 26 November 2025.

16. Brief chronology of key events handed up at the hearing.

Statutory framework and legal principles

Jurisdiction and role of the Tribunal

11. Section 83B(1) of the HBA confers jurisdiction on the Tribunal for administrative review of the Respondent’s decision pursuant to s 9 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act).

12. Under s 63(1) of the ADR Act the Tribunal must decide what the correct and preferable decision is having regard to the material before it. When conducting an administrative review, the Tribunal may exercise all of the functions conferred or imposed by relevant legislation on the decision-maker who made the decision: s 63(2) ADR Act. The Tribunal stands in the shoes of the decision-maker: Wojciechowska v Secretary, Department of Communities and Justice; Wojciechowska v Registrar, Civil and Administrative Tribunal [2023] NSWCA 191 at [98]; NSW Self Insurance Corporation v EEH [2023] NSWCATAP 181 at [86].

13. The Tribunal may determine an administrative review application by affirming the decision under review, varying the decision, setting the decision aside and making a decision in substitution or setting the decision aside and remitting it to the administrator for reconsideration in accordance with any directions or recommendations: s 63(3) ADR Act.

Standard of proof and onus

14. The requirements for proof of questions of fact in administrative review proceedings were summarised by the Appeal Panel in Meacham v Commissioner of Police [2020] NSWCATAP 107 at paragraphs [54] and [83]:

“[54] Despite not being bound by the rules of evidence, the Tribunal is required to base its findings of fact on “logically probative material”, and not on “mere suspicion or speculation”, as a corollary of its obligation to act reasonably: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 (“Pochi”) at 62, 68 (Deane J); [1980] FCA 85; Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 (“Sullivan”) at [5]-[8], [15]-[17] (Logan J). It is an error of law for the Tribunal to make a finding of fact with no evidence, or no probative evidence, to support it.

…

[83] Proof of matters which are asserted is required in a practical sense, and a party asserting a fact is generally required to provide evidence to substantiate it. As noted above, the Tribunal is required to base its findings of fact on “logically probative material”: Pochi at 62, 68; Sullivan at [5]-[8], [15]-[17].”

Relevant provisions of the Home Building Act

15. The scheme of the HBA is concerned to provide consumer protection including regulating the issue, suspension and cancellation of various licences in relation to residential building work. The Tribunal in McGufficke v Commissioner for Fair Trading [2022] NSWCATOD 176 at [48] noted that “the overall purpose of the HBA is to protect consumers in the contracting for and the construction of residential buildings.”

16. Division 1 of Part 3 of the HBA regulates contractor licences. Unlike supervisor and tradesperson certificates (to which Division 2 applies), s 21 of the HBA, authorises the holder of a contractor licence to contract with the public to carry out certain residential building work, do any specialist work described in the licence, and to supply necessary building components.

17. Sch 1 cl 2 of the HBA defines “residential building work” as any work involved in, or involved in co-ordinating or supervising, any work involved in the construction of a dwelling or the making of alterations or additions or repairing, renovation, decoration or protective treatment of a dwelling. Sch 1 cl 1 of the HBA defines “specialist work” which is not applicable in this case.

18. Section 19 of the HBA gives the Respondent the power to grant a contractor licence.

19. Under s 20(1)(a) the Respondent must refuse an application if not satisfied that the Applicant is a fit and proper person to hold a contractor licence, or under s 20(1)(a1) or 20(1)(a2) if not satisfied of the matters under s 33B or s 33C of the HBA.

20. Section 20 of the HBA relevantly provides:

“20 Issue of contractor licences

(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

…”

21. Section 33B(1)(a)(xvi) of the HBA relevantly provides:

“33B General requirements for issue of certain authorities

(1) An authority (other than an owner-builder permit) must not be issued unless the Secretary is satisfied that—

(a) each relevant person in relation to the application for the authority—

…

(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), …”

22. “Chapter 5 body corporate” is defined at Sch 1 cl 1 of the HBA to have the same meaning as in the Corporations Act 2001 (Cth), which defines “Chapter 5 body corporate” in s 9 to include a body corporate that is being wound up or is under administration.

23. Section 33C of the HBA relevantly provides:

“33C Additional requirements for obtaining contractor licences

…

(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.

(4) A contractor licence issued under subsection (3) may be issued subject to a condition that the holder of the licence 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).

(5) A condition imposed under subsection (4) may be limited so that it does not apply to a subcontract entered into by the holder of the licence. A subcontract is a contract that is made between parties who each hold a contractor licence and that is for work that each party’s contractor licence authorises the party to contract to do.”

…

Evident risk to the public

24. In Hotait v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2020] NSWCATOD 36 (Hotait) at [94] the Tribunal referred to decisions dealing with the statutory predecessor of s 33C(3)(a) of the HBA which found that “evident risk” is equivalent to:

“‘obvious risk’: Avila v Director-General, Department of Finance & Services, NSW Fair Trading [2014] NSWCATOD 53 at [27]; or

‘plain, clear or apparent risk’: SM Engineering & Construction (NSW) Pty Ltd and Mehajer v Director General, NSW Fair Trading [2015] NSWCATOD 27 at [49];

…

25. The Applicant’s financial circumstances are a relevant factor in considering the “evident risk” question as is demonstrated inability, in the past to complete building contracts entered into Avila v Director-General, Department of Finance & Services, NSW Fair Trading [2014] NSWCATOD 53 at [28], and [31]; Hotait at [94].

Reasonable steps to avoid insolvency

26. The question of whether a licence holder took “reasonable steps” to avoid a bankruptcy or insolvency has been considered in a number of decisions.

27. In Clarke v Commissioner of Fair Trading, Office of Fair Trading [2004] NSWADT 273 (Clarke) the Tribunal’s President referred to a number of earlier decisions under comparable provisions in the Property, Stock and Business Agents 2002 and concluded at paragraphs [9] - [10]:

“9 The Tribunal has already dealt with three applications for review arising under the new provisions: McDonald v Commissioner for Fair Trading [2004] NSWADT 124, Smith v Commissioner for Fair Trading [2004] NSWADT 182 and Davidson v Commissioner for Fair Trading [2004] NSWADT 200.

10 It has expressed the following views as to the approach to be taken in examining the question of whether the licence holder took ‘reasonable steps’ to avoid the bankruptcy or insolvency:

(i) A general inquiry into the wisdom or otherwise of the original financial dealings that ultimately ended in bankruptcy or insolvency is not contemplated by the Act. The point at which the inquiry commences is when the applicant was ‘faced with the possibility’ of bankruptcy or insolvency (Davidson at [20]) or was ‘aware’ or ‘should have been aware’ (McDonald at [21]) of that possibility. The focus is the steps taken to avoid the relevant event (see Smith at [17]) – in cases of the present kind, administration, and later liquidation.

(ii) Subject to (i), in assessing reasonableness the Tribunal must examine all the relevant facts and circumstances. (McDonald at [25]),

(iii) The steps taken by the applicant must be objectively reasonable in the sense that they would be those taken by a ‘reasonable person endowed with the knowledge and experience of the [applicant]’. (McDonald at [26-27])

11 To these should probably be added a fourth, though it is obvious enough from the provision:

(iv) The person under notice has the task of satisfying the Commissioner that he or she took all reasonable steps to avoid the insolvency.”

28. Accordingly, the inquiry for the Tribunal is to commence from the time the Applicant was faced with the possibility of insolvency or was aware or should have been aware of that possibility: see decision of the Appeal Panel in Goodman v Commissioner for Fair Trading [2023] NSWCATAP 260 at [22].

Fit and proper person test

29. A person’s fitness and propriety for a particular role is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, NSW Police Force and NSW Fair Trading [2014] NSWCATAD 184 at [40].

30. It is generally accepted that what is fit and proper needs to be determined by reference to the activities in issue and is to be gauged in light of the nature and purpose of the activities that the person will undertake: Spasevski v Commissioner for Fair Trading [2017] NSWCATOD 53 at [13], citing AJO v Director-General of Transport [2012] NSWADT 101 at [26]; Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [82].

31. In Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 (Hughes) at 156-7 the High Court said:

“The expression ‘fit and proper’ is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. ‘Fit’ (or ‘idoneus’) with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances.”

32. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, per Chief Justice Mason at 380:

“The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.”

33. Toohey and Gaudron JJ said at 380:

“The expression ‘fit and proper person’, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of ‘fit and proper’ cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.”

34. The issue of whether a person is fit and proper due to past conduct is a matter of judgement. In considering that issue the Tribunal is required to take into account the nature and seriousness of the original conduct, any events relevant to an assessment of the Applicant’s fitness which have occurred since then, the candour with which the Applicant has approached the issue of past conduct, the Applicant’s explanation of the conduct, the impact of the effluxion of time, and the Applicant’s present circumstances and reputation: Poytress v Director General, NSW Fair Trading [2015] NSWCATOD 100 at [82].

35. There are no objects in the HBA. In Spasevski at [17] the Tribunal stated that:

“Under the licencing regime established by the Act, the Commissioner warrants to the public that, not only has the licenced person the requisite skills, qualifications and knowledge to undertake the work, but that they are also a person in whom the home owner can have confidence.”

Consideration

Are the requirements of s 33B of the HBA satisfied?

36. Under s 33B of the HBA an “authority” (means a contractor licence: Sch 1 cl 1) must not be issued by the Respondent unless satisfied of certain matters. Relevant to this case, the Respondent must be satisfied that the Applicant:

37. is not at the time of the application a director of a Chapter 5 body corporate s 33B(1)(a)(xv) HBA, and

38. was not a director of a body corporate that was a Chapter 5 body corporate at any time within 10 years before the date of the application: s 33B(1)(a)(xvi) HBA.

39. It is common ground between the parties that the Applicant does not comply with s 33B of the HBA.

40. The Applicant lodged his Licence Application on 7 November 2024 and the Respondent refused the Application on 14 May 2025.

41. The Applicant was the director of two companies that were placed into voluntary administration.

42. The first, Sydney Pacific Group Pty Limited (Sydney Pacific), provided management consultancy services and operated as a real estate agency in NSW. Prior to 11 March 2021 the Applicant’s former wife was a co-director of Sydney Pacific. Sydney Pacific was placed into voluntary administration on 12 January 2024.

43. The second, Lanart Homes Pty Limited (Lanart Homes), operated a residential building and construction business in NSW. Prior to 20 February 2024, Mr Tvardievici was a co-director of Lanart Homes with the Applicant. From 20 February 2024 to 9 January 2025, the Applicant was the sole director of Lanart Homes. Lanart Home went into administration on 9 January 2025.

44. The Respondent relies on the decision of the Tribunal in Veselinovic v Secretary, Department of Customer Service [2025] NSWCATOD 36 at [85] that found:

“… that “at the time of the application” in s 33B(1)(a)(xv) refers to the time of the application process, which begins on the date the application is made and includes the period up to a decision being made in respect of that application. (This is also consistent with the position adopted by the Tribunal in New Energy Technology Solutions Pty Ltd (ACN 677931323) v Secretary, Department of Customer Service [2025] NSWCATOD 22 at [26], a decision handed down after the conclusion of this hearing.)”

Findings and outcome on the application of s 33B of the HBA

43. The Applicant does not satisfy s 33B of the HBA.

44. Based on the documentary evidence, the Applicant was a director of a Chapter 5 body corporate at the time of the Application on 7 November 2024 as Sydney Pacific was placed into administration on the prior date of 12 January 2024.

45. In accordance with the Tribunal’s reasoning in Veselinovic, in relation to Lanart Homes the Tribunal is also satisfied that the Applicant was a director of a body corporate that was a Chapter 5 body corporate at the time of the application. This is because Lanart Homes was placed into administration before the Respondent made its decision on the Applicant’s licence application. Accordingly the Applicant does not comply with s 33B(1)(a)(xv) HBA because at the time of the application the Applicant was a director of a Chapter 5 body corporate.

46. Similarly the Tribunal is satisfied that the Applicant was a director of a Chapter 5 body corporate at any time within the last 10 years “before the date of the application”. Accordingly the Applicant does not comply with s 33B(1)(a)(xvi) HBA because he was a director of a body corporate that was a Chapter 5 body corporate within 10 years before the date of the application.

Are the requirements of s 33C of the HBA satisfied?

47. Under s 33C(3) of the HBA the Respondent may issue a contractor licence despite noncompliance with s 33B(1)(a)(xv) if satisfied of the matters set out in s 33C(2)(a), (b), (c) and (d).

48. Under s 33C(3) of the HBA the Respondent may issue a contractor licence despite noncompliance with s 33B(1)(a)(xvi) if satisfied of the matters set out in s 33C(3)(a),(b) and (c).

49. The Respondent’s submits that the Applicant does not comply with s 33C(3) of the HBA. Neither the Applicant or the Respondent submit that compliance with s 33C(2) of the HBA is in issue. In any event the Tribunal notes that a number of provisions in s 33C(2) are in substantially similar terms as s 33C(3). In particular, noncompliance with ss 33C(3)(a) and (b) will also amount to noncompliance with ss 33C(2)(b) and (c). Given the findings of the Tribunal below, no further consideration is given to s 33C(2) of the HBA.

Is there no evident risk to the public?

50. In determining whether there is no evident risk to the public the Tribunal must consider the Applicant’s financial circumstances and any demonstrated inability in the past to complete building contracts entered into.

Applicant’s evidence and submissions on his financial position

51. In his Affidavit affirmed 13 October 2025 the Applicant gives evidence that he is the sole income-earner for his household with five dependent children. The Applicant contends that remaining unlicensed forces him to accept low paid labouring work and increases the likelihood of Centrelink support.

52. The Applicant relies on an undated Projected Income and Expenditure Statement signed by an Accountant at Annexure CR-6 to his Affidavit (Projected Income Statement). The Accountant states in CR-4 that she has prepared and overseen the Applicant’s financial statements and related accounting matters since 2016.

53. The Projected Income Statement projects an income of $4,196,000 for the 2025/2026 financial year, made up of $95,000 per year of salary / wages and profit distributions of $4,101,000 from a Trust for completion of certain residential developments. Because the projected income is composed of salary/wages and profit distributions from the Trust upon completion of development projects, the Accountant states that there are no additional expenditures applicable to the projected income.

54. The Applicant’s Affidavit states that his cash income is waged labouring with a weekly net of about $805 for 38 hours. An annual salary of $48,000 is evidenced by a current payslip at CR-12. No explanation is given in the Affidavit for the higher projected yearly income of $95,000 in the Projected Income and Expenditure Statement. However in cross examination the Applicant stated that while his current annual salary is around $48,000 he projects receiving $95,000 based on receiving a licence.

55. While the Projected Income Statement projects profit distributions of more than 4 million, the Applicant’s Affidavit states at par 15:

“I presently receive no trust distributions; any future distributions referenced in CR-6 are contingent and uncertain, and do not reflect my current capacity to meet household expenses.” [emphasis in original]

56. The Applicant also relies on his Accountant’s Statement of Financial Viability dated 17 February 2025 at CR-4. The Accountant’s opinion is that the Applicant possesses the financial capacity to meet the obligations associated with carpentry contracts. In relation to historical financial conduct, the Accountant states that since 2016 the Applicant has consistently met his personal financial obligations (debts, taxation requirements and other liabilities). In preparing the Statement the Accountant relied on financial statements and personal bank statements for the periods 2016 to 2024, loan agreements and undefined “additional financial data.” The financial information relied on is not included in CR-4 and no further particulars are stated.

57. In addition the Applicant relies on an Individual Statement of Affairs prepared by the Accountant at CR-5. It provides a snapshot of the Applicant’s personal financial position as of 14 February 2025 as having a net worth of around $2.8 million. Total assets of around $10.8 million made up of around $19,000 in cash and bank accounts, 10 million in real estate held in Trust, a vehicle held in Trust of around $41,000 and household contents of $50,000.

58. Liabilities are listed at around 8 million made up of mortgages and home loans, person loans, credit cards and ATO individual tax debt. The Tribunal notes that the Accountant at CR-4 stated that the Applicant has met his personal financial obligations including tax. Under cross examination the Applicant’s evidence was that while he had a tax debt, he had a payment arrangement in place. In his view this indicates that he has been compliant.

59. The Statement of Affairs does not include a Director’s Loan to the Applicant of around $520,000 listed in the Statutory Report to Creditors dated 15 May 2024 (Sydney Pacific Report) at page 269 of the Court Book. In cross examination the Applicant’s evidence was that it was under dispute in court as to whether he will be liable for the loan, he was not sure why the Accountant didn’t include it but that his net worth will still be positive.

60. Further, the Applicant submits that any concern as to risk can be mitigated by the Tribunal imposing conditions limiting contracts entered into to $20,000, no nominated supervisor role for any company or partnership, no HBCF eligibility in his own right, quarterly CPA-certified solvency statements to be lodged with the Secretary, undertakings for audit and disclosure and $1million professional indemnity insurance for any one claim.

Applicant’s evidence and submissions on completion of building contracts in the past

61. The Applicant contends that any orders made by NCAT do not amount to a finding that the Applicant was unwilling or personally unable to complete work but rather, reflects that a company in liquidation cannot lawfully continue building. The Applicant also contends that orders were made against the company not the Applicant personally and many orders were consented to or made on the papers to facilitate HBCF claims. In effect the Applicant contends that the NCAT money orders were largely consent orders to preserve homeowners’ HBCF rights and protect consumers.

62. In essence the Applicant’s position is that the complaints and NCAT orders related to incompletion due to liquidation, so this has little bearing on the issue of whether he poses an evident risk to completing future contracts for work undertaken under an individual carpenter licence. He also contends that as he intends to remain employed and not contract directly with consumers, he poses no evident risk to the public.

Respondent’s evidence and submissions on the Applicant’s financial position

63. The Respondent submits that the Applicant’s financial circumstances demonstrate that he has little or no access to credit and uncertain means to fund building projects. In the Respondent’s submission this is the position even if confined to smaller projects of $20,000, noting that the Applicant could accept an unbounded number of projects at that amount.

64. While the Individual Statement proports to show the Applicant had a net worth of around $2.8 million as at February 2025, at best the statement shows truly liquid assets of only $19,417 at that time.

65. The Respondent contends that $2.2 million is outstanding to consumers following Tribunal orders, showing significant consumer detriment from past failure to complete contracts.

66. The Respondent submits that little weight should be given to the documents annexed to the Applicant’s Affidavit from the Applicant’s Accountant as they are based on presumptions, do not disclose reasoning and basis for opinions and fail to include pertinent information.

Respondent’s evidence and submissions on completion of building contracts in the past

67. The Respondent relies on the Statutory Report to Creditors dated 7 April 2025 (Lanart Report) which shows 18 legal proceedings involving Lanart Homes. The Liquidator understands that the claims against Lanart Homes related to various defects in work completed by the company and deposits paid by the landowners for construction works that did not commence or had not been completed.

Findings and outcome on evident risk

68. The Tribunal is not satisfied that the Applicant’s financial position presents no evident risk to the public that he will be unable to complete future contracts. This is because the Applicant’s own evidence is that he is in financial hardship and that distributions from the Trust are uncertain. The Tribunal gives the Accountant’s opinions little weight as the Accountant does not sufficiently reveal the basis for their opinion. There are also unexplained discrepancies in the material provided by the Accountant in comparison to the Creditor’s Reports.

69. In addition the Applicant has not sufficiently addressed the consumer debts of $2.2 million which remain outstanding, or included the Directors Loan of $520,000 in his Affidavit.

70. The Tribunal finds that the only reliable evidence indicates that the Applicant’s liquidity is around $19,000 with annual salary/wages of about $48,000 from labouring. While the Applicant contends that his salary/wages would increase if he was employed as a carpenter if granted a licence, there is no evidence before the Tribunal that such work is assured. This is insufficient in the circumstances to be satisfied that there is no evident risk to the public that the Applicant will be unable to complete contracts to do residential building work in the future.

71. The Applicant’s position is that the past complaints do not relate to his work but are a result of the failures of the company and in particular alleged misconduct of the other Director of Lanart Homes. The Applicant contends that those complaints do not indicate an evident risk when, as an employee, he will not be contracting directly with the public and conditions may be imposed.

72. The past complaints relating to incomplete work are significant. While the Applicant states that he intends to remain employed, the Respondent’s position is that the scheme of the HBA is based on contractor arrangements such that it would not be in keeping to impose a condition of employment and monitoring of such a condition is not practicable. The Tribunal accepts the Respondent’s position but moreover, the Tribunal considers that conditions cannot be imposed in order to meet the provisions in s 33C(3) of the HBA.

73. The Tribunal considers that all three requirements set out in s 33C(3) of the HBA must be fulfilled in order for the discretion to be exercised to grant the licence in circumstances where the Applicant does not comply with s 33B. It is only after those requirements are satisfied and the discretion exercised to grant a licence, that the conditions of that licence may be considered under s 33C(4) of the HBA: Karall v Secretary of the Department of Customer Service [2025] NSWCATOD 38 at [85]; Leto v Secretary Department of Customer Service [2026] NSWCATOD 26 at [64]. Accordingly no further regard is given to the Applicant’s prosed conditions in considering the matters set out in s 33C(3) of the HBA.

74. The Tribunal has not found that s 33C(3)(a) is satisfied. While the licence cannot be issued where one of (a) to (c) is not satisfied, the Tribunal considers s 33C(3)(b) and (c) below for completeness.

Did the Applicant take all reasonable steps to avoid the liquidation?

75. The Applicant must satisfy the Tribunal that he took all reasonable steps to avoid liquidation from the time he was “faced with the possibility” of bankruptcy or insolvency or was “aware” or “should have been aware” of that possibility. Reasonable steps must be determined objectively by reference to the relevant facts and circumstances.

Applicant’s submissions and evidence on reasonable steps

76. In summary the Applicant’s position is that the decline in the financial position of the companies was due to external factors beyond his control including a divorce, COVID-19, misappropriation of funds by other Directors and loss of the building licence (cancelled by the Respondent because he did not have a licenced supervisor). On becoming aware of financial difficulties, he took steps to avoid liquidation including injecting funds, initiating legal action by 6 December 2024, assisting affected homeowners to lodge or settle their NCAT claims, appointed a voluntary administrator, refinanced a secured debt into his family trust to avoid creditor losses and personally financed the liquidator’s costs to maximize returns to creditors.

77. The Tribunal considers the Applicant’s evidence and submissions in relation to each company below.

78. Sydney Pacific: The Applicant’s “Additional Details Form 5 – External Administration of a Company” (Additional Form) dated 7 November 2024 contains relevant evidence regarding Sydney Pacific. Lanart Homes is not referred to.

79. The Applicant states that he first became aware of the financial difficulties for Sydney Pacific in early 2021 as a result of divorce proceedings. He states that the separation process disrupted business operations, affected cash flow, and led to disputes over company assets and control. Additionally, COVID-19 related challenges affected client engagement and overall revenue, which further compounded the financial strain.

80. The Applicant states at 3.4 and 3.5 of the Additional Form that upon recognising the financial pressures, he implemented cost-saving measures, streamlined operations and sought legal advice to manage the implications of the divorce on company finances. He attempted to maintain client relationships and sought to restructure the company’s financial obligations where possible to mitigate the immediate impact on cash flow. He states that he engaged with creditors to negotiate repayment plans and attempted to secure additional revenue streams. Despite these efforts, the compounded effects of the divorce and decreased business activity ultimately made it challenging to maintain solvency.

81. In his Affidavit, in addition to the relationship breakdown the Applicant refers to a former director’s drawings/misappropriation as the reason for Sydney Pacific’s failure.

82. On cross examination the Applicant’s gave evidence that he was aware of financial difficulties of Sydney Pacific in March 2021 when his wife left the company. From April 2021 the company was operating at a loss and continued to do so for a number of years. He allowed it to continue to trade and incur expenses because it was better for clients and he couldn’t sell assets due to Family Court matters.

83. Lanart Homes: The Applicant’s contention as to when he first became aware of the financial difficulties of Lanart Homes is not clearly explained to the Tribunal in his submissions or Affidavit.

84. The Applicant’s response dated 17 February 2025 to a Notice from the Respondent (Respondent’s Notice) for further information, states that he acquired Lanart Homes in 2021 from the former director who would remain as both managing director and nominated licensee in charge. In November 2021 the former director asked that the Applicant step in as a director so he could personally guarantee asset acquisitions. However the Applicant temporarily moved overseas for extended periods and was not involved in the day-to-day management, relying on the former director’s periodic reports.

85. The Applicant also states in response to the Respondent’s Notice that around March 2024 the former director asked the Applicant to sign backdated documents removing him from directorship, expressing worry about personal risk if the company became insolvent. The Applicant later discovered the former director had also left the company as licensee in charge, which resulted in the company licence being cancelled in July 2024. The former director continued to manage projects until around September 2024 evidenced by his use of the company email and vehicles.

86. The Lanart Report states that the company has suffered trading losses since early 2024 and experienced cashflow constraints. The Applicant is stated in the Lanart Report to have advised the liquidator that in order to sustain operations, funding was provided through a share capital injection from a trust company which the Applicant is the sole director and shareholder of, in February 2024 of $140,000. A total of $1,005,100 was provided through that mechanism in 2017, 2021, 2022, June 2023 and February 2024.

87. In cross examination the Applicant gave somewhat contradictory evidence that he didn’t trade while insolvent, that the company was not carrying out construction activities and he allowed the company to stay in operation only to gather evidence and file police statements.

88. The Applicant relies in his Affidavit on the Lanart Report for the “causes of failure” of Lanart Homes. The Lanart Report notes that the Applicant attributed the failure of the company to cancellation of the company’s contractor licence and misappropriation of the corporate funds by a former director.

89. The Applicant on cross examination stated that the cancellation of the building licence led to insolvency in relation to Lanart Homes as he couldn’t continue functioning. He did his best to find a supervisor but could not find a person who would agree to carry out the role to complete another person’s work.

90. The Applicant made statements to Police on 14 January alleging theft of building materials of $30,000 by the former director and on 28 March 2025 alleging forgery of insurance certificates and misappropriation by the former director. The March statement alleges the former director diverted $907,011 to their private duplex. The Applicant’s Affidavit states that he filed a Supreme Court claim on 6 December 2024 that was discontinued for lack of funding. The Applicant refers to the Lanart Report which notes that proceedings were filed and discontinued by the liquidator. The Lanart Report states that a claim may exist against the former director.

Respondent’s submissions and evidence on reasonable steps

91. The Respondent submits that s33C(3)(b) is concerned with the steps taken by the Applicant when faced with the possibility of insolvency, having regard to his knowledge and experience as a director.

92. In respect of Sydney Pacific, the Respondent contends that the Applicant failed to take reasonable steps to avoid administration because:

93. Despite knowing that the company faced financial difficulties from April 2021 he allowed it to continue trading and incur substantial debt for 3 years until administration in January 2024. The Sydney Pacific Report states the preliminary view that the company was insolvent from at least June 2022, however it operated at a loss month-to-month since April 2021.

94. The Applicant’s suggestion he took reasonable steps by injecting funds into the company must be considered against the Creditor Report’s preliminary findings that he accepted loans which remained at a balance of $519,727 as at 12 January 2024 and may have allowed unfair preference payments, including related party transactions such as payment to Lanart Homes.

95. In respect to Lanart Homes, the Respondent contends the Applicant failed to take reasonable steps to avoid administration because:

96. He failed to nominate a supervisor within the required time resulting in the cancellation of the company’s licence.

97. He appeared to allow Lanart Homes to continue trading, despite being insolvent. The Lanart Report states the preliminary view that the company was insolvent from at least June 2024 and was operating at a loss on a month-to-month basis as early as February 2024. The Applicant was the sole director of the company at this time.

98. In the time the Applicant was the sole director, matters which the Lanart Report suggests was among the reasons the company failed were within his control to avoid: accumulated unfinished construction projects including because of the choice of fixed price construction contracts when input costs were rising, legal proceedings against the company following defective or incomplete works, poor strategic management of business and poor business decisions, inability to generate sufficient workflow and the cancellation of the Applicant’s licence.

99. The Respondent submits that a reasonable director would not have allowed these matters to occur or would not have allowed trading to continue in such circumstances where the director faced insolvency.

Findings and outcome on reasonable steps to avoid liquidation

95. For s 33C(3)(b) to be made out the Tribunal must be satisfied that the Applicant took all reasonable steps to avoid the liquidation. Based on Clarke, the point at which the inquiry commences as to whether the Applicant took all reasonable steps to avoid liquidation is when the Applicant was “faced with the possibility” of insolvency or was “aware” or “should have been aware” of that possibility.

96. Based on the evidence the Tribunal finds in relation to Sydney Pacific:

97. The Applicant was the sole director from March 2021 of Sydney Pacific.

98. The company ran at losses from April 2021.

99. The Applicant continued to trade until liquidation in January 2024.

100. The Applicant was aware or should have been aware of the possibility of insolvency early in 2021 when challenges arose as a result of his divorce and he became the sole director, and at least by April 2021 when the company was operating at a loss. Based on the Sydney Pacific Report the company may have been trading while insolvent from at least June 2022.

101. The Tribunal is not concerned with the wisdom of financial dealings that ultimately ended in the liquidation. Rather, the Tribunal is concerned with what steps the Applicant took to avoid the liquidation once he became aware or should have been aware of the possibility.

102. On becoming aware of the possibility of insolvency early in 2021 the Applicant did not take reasonable steps to prevent the insolvency. As the sole director from March 2021, on his own evidence at [82], he allowed the company to continue to trade and incur further expenses for 3 years. While the Applicant contends that he attempted a number of strategies at [80], he did not provide evidence of these matters in his Affidavit or at the hearing.

103. The Tribunal gives weight to the view of the Liquidator in the Sydney Pacific Report that the company may have been trading while insolvent from at least June 2022. The Applicant’s decision to continue to trade in such circumstances demonstrates a failure to understand his duties as a director and to take reasonable steps to prevent the insolvency.

104. In relation to Lanart Homes:

105. The Applicant was the sole director from February 2024 of Lanart Homes.

106. The company ran at losses from February 2024.

107. The Applicant continued to trade until liquidation in January 2025.

108. The Applicant was aware or should have been aware of the possibility of insolvency of Lanart Homes in February 2024 when the company was running at a loss, he injected funds and became the sole director. Based on the Lanart Report the company may have been trading while insolvent from at least June 2024.

109. On becoming aware of the possibility of insolvency in February 2024, the Applicant did not take reasonable steps to prevent the insolvency. While the Applicant took steps to make police reports and initiated court proceedings to attempt to recover monies alleged to have been misappropriated, as the sole director from February 2024 he allowed the company to continue to trade and incur further expenses for a year.

110. The Tribunal gives weight to the view of the Liquidator in the Lanart Report that the company may have been trading while insolvent from at least June 2024. The Applicant’s decision to continue to trade in such circumstances demonstrates a failure to understand his duties as a director and to take reasonable steps to prevent the insolvency.

111. Section 33C(3)(b) of the HBA is not made out.

Has the Applicant put in place sufficient risk mitigation measures?

Applicant’s submissions and evidence on mitigation measures

104. It is the Applicant’s submission that he articulates a specific, conservative operating model with external financial oversight. On that basis, he submits that the Tribunal can be satisfied that he has put in place sufficient risk mitigation measures to avoid a future bankruptcy, liquidation or the appointment of a controller or administrator in relation to any future residential building work undertaken under his licence.

105. The Applicant relies on the limited scope of the individual carpentry licence he seeks and his proposed conditions to mitigate risk. If licenced, he intends to continue working through established builders rather than running a stand-alone building company.

106. In cross examination the Applicant’s evidence is that in future he would enhance and enforce communication of financial matters. In his response to the Respondent’s Notice he stated that he would maintain clearer lines of communication and documentation with co-directors and implement an internal policy requiring all complaints to be disclosed.

Respondent’s submissions and evidence on mitigation measures

107. The Respondent’s written submissions focus on the past failures of the Applicant to demonstrate that he did not implement sufficient risk mitigation strategies to avoid Sydney Pacific and Lanart Homes being placed into administration.

108. The Respondent also contends that the Applicant has not provided evidence of risk mitigation measures.

109. In relation to the Applicant’s proposal not to contract directly with the public the Tribunal understands the Respondent’s position is that this is not a risk mitigation measure that is able to be monitored and such a condition is not in keeping with the licence sought under the HBA.

Findings and outcome on mitigation measures

110. The Applicant must demonstrate that he has put in place sufficient risk mitigation measures to avoid a future liquidation.

111. For the reasons set out at [73], the Tribunal does not accept that the conditions sought by the Applicant can be made unless s 33C(3) is first made out. Accordingly, the Tribunal does not give weight to the Applicant’s risk mitigation measures which relate to proposed conditions.

112. As set out at [68] to [74] the Applicant has not demonstrated that he has the financial means to undertake residential building work.

113. The Applicant has not demonstrated that he has put in place sufficient risk mitigation measures to avoid a future liquidation.

Is the Applicant a fit and proper person to hold a contractor licence?

Applicant’s submissions and evidence on fit and proper person

114. The Applicant accepts that the fit and proper person test includes having regard to the Applicant’s honesty and integrity, financial responsibility and reliability and the public interest. The Applicant submits that a fair and balanced application of those principles in this case should take account of the full picture, not just the fact of corporate failure and NCAT money orders.

115. The Applicant points to the following to demonstrate that he is a fit and proper person:

116. No findings of dishonesty against the Applicant in any court or tribunal. Instead, he is the complainant in police matters concerning theft of materials and forgery of HBCF documents.

117. Cooperation with regulators: he cooperated with the Liquidator, HBCF and the Building Commission NSW and assisted consumers to understand and exercise their rights.

118. Substantial prior professional experience in high-responsibility roles in construction related organisations as set out in his CV.

119. Financial probity since 2016 confirmed by his Accountant.

120. Personal circumstances and hardship: he is the sole income earner for his family, denying a conditional licence forces him into low-paid labouring work and increases reliance on public support.

121. Willingness to accept stringent conditions.

122. Long-term character references attesting to his professionalism, reliability and family responsibilities.

123. The Applicant submits that refusal would effectively treat him as permanently unfit because of a single corporate failure heavily influenced by another director’s misappropriation.

Respondent’s submissions and evidence on fit and proper person

117. The Respondent’s position is the Applicant is not a fit and proper person to hold the licence for the following reasons:

118. Failure to take reasonable steps to avoid administration is relevant to an assessment of fitness and propriety, given the question is informed by public interest considerations and the activities in which the person will be engaged – namely, contracting and engaging in business directly with members of the public for the supply of carpentry services.

119. The Applicant’s failure to accept any responsibility for the failure of either company goes to character and honesty as all directors of a company share the responsibility of overseeing a company’s management.

120. Potential failure of the Applicant to comply with his director duties including exercising due care and diligence and properly monitor the financial health and operations of his companies.

121. The Sydney Pacific Report and Lanart Homes Reports confirm that the administrator is preparing a s 533 Report for ASIC (being a report that a liquidator is required to prepare where it appears that an officer of the company may be guilty of an offence or misconduct). While the Respondent does not suggest this is conclusive evidence of misconduct, it does indicate that the Tribunal cannot currently have confidence that the Applicant is fit and proper.

122. The Respondent contests the Applicant’s position that he has assisted the liquidator with its investigations as no proposal for a DOCA was received or a statement of personal assets and liabilities.

123. While the Applicant provided a number of references, none of them provide an opinion of his character, honesty and integrity in the context of consumer and creditor detriment.

Findings and outcome on fit and proper person

118. The Tribunal gives some weight to the character references provided in support of the Applicant, attesting to his competence, professionalism and customer advocacy. However the Tribunal gives greater weight to the Sydney Pacific and Lanart Homes Reports which state that he may have allowed unfair preference payments and traded while insolvent in relation to both companies. These matters go to the Applicant’s honesty and ability: see Hughes.

119. Given those preliminary findings of the liquidator and the referral to ASIC, the Tribunal cannot be satisfied that the Applicant is a fit and proper person to hold the licence at this time. That is not to say that the Applicant should be precluded from holding a contractor licence forevermore. If for example ASIC were to find the preliminary findings unsubstantiated, the Applicant may wish to reapply to the Respondent.

Conclusion

120. For the reasons set out above the Tribunal finds that s 33B and s 33C(3) of the HBA are not made out. The Tribunal is also not satisfied that the Applicant is at this time a fit and proper person to hold a contractor licence. As the Tribunal is not satisfied that the Applicant fulfills the requirements, the Tribunal must refuse the application for a contractor licence in accordance with s 20(1)(a) and s 20(1)(a1) and s 20(1)(a2) of the HBA.

Order

121. The decision of the Respondent to refuse the contractor licence is affirmed.

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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