Style Tiles and Bathrooms Pty Ltd v Commissioner for Fair Trading

NCAT Occupational|2021-05-18

REASONS FOR DECISION

On 23 March 2020 the Consumer and Commercial Division of the Tribunal made a decision in an application brought by Empirica Frameless Glass Pty Ltd (Empirica) against the applicant in these proceedings, Style Tiles and Bathrooms Pty Ltd (Style Tiles and Bathrooms). Empirica was seeking payment for 61 unpaid invoices for the supply and installation of glass shower screens for Style Tiles and Bathrooms. The Tribunal ordered that Style Tiles and Bathrooms pay Empirica an amount of $57,053 immediately.
Following on from the Tribunal's order, NSW Fair Trading sent a warning letter to Style Tiles and Bathrooms indicating that failure to pay the debt may result in its license being suspended under section 42A of the Home Building Act 1989. NSW Fair Trading states that Sue Graham, on behalf of Style Tiles and Bathrooms, advised that their solicitor was looking at appealing the decision or applying to have the judgement set aside. Ms Graham was advised to seek a stay if an appeal against the decision was lodged. No appeal was in fact lodged.
On 17 April 2020, Style Tiles and Bathrooms lodged an application to renew its contractor licence. On 13 July 2020, NSW Fair Trading refused to renew the license because Style Tiles and Bathrooms was subject to an order of the Tribunal that had not been satisfied within the period specified in the order. The decision was made in accordance with s 33B(1)(a)(vi) of the Home Building Act which provides that a license must not be issued unless each relevant person in relation to the application for the licence is not subject to any order of the Tribunal that has not been satisfied within the period required. That decision was affirmed on internal review on 27 August 2020.
On 17 March 2021 Style Tiles and Bathrooms made an application to the Occupational Division of the Tribunal seeking review of the decision to refuse to renew the license.
The application is plainly out of time. In accordance with Rule 24(4)(b) of the Civil and Administrative Tribunal Rules 2014, a review application must be made within 28 days from the day on which the person was notified of the decision. Style Tiles and Bathrooms filed its application more than 5 months out of time. Section 41 of the Civil and Administrative Tribunal Act 2013 provides that the Tribunal may extend the period of time for filing of an application for review of a decision.

The relevant principles

The principles relating to consideration of an application to extend time have been considered by the Tribunal in numerous cases and include those referred to in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22, CFZ v Department of Education [2015] NSWCATAD 231, CFA v Department of Family and Community Services [2016] NSWCATAD 32 and Kee v Commissioner of NSW Police Force [2016] NSWCATAD 73.
While the Tribunal has a broad discretion concerning the grant of an extension of time, the relevant factors in considering the exercise of the discretion are: 1. the length of the delay; 2. the reason for the delay; 3. the applicant's prospects of success; 4. any prejudice suffered by the respondent; 5. public interest considerations, 6. timeliness or delay in antecedent administrative processes; and 7. whether strict compliance with the rules will work an injustice upon the applicant.

Evidence and submissions

Sue Graham, Credit Control Manager/Estimator for Style Tiles and Bathrooms appeared at the hearing on behalf of the company and has represented it in dealings with NSW Fair Trading. In relation to the reasons for delay, Ms Graham referred to proceedings in the Tribunal which Style Tiles and Bathrooms had commenced against Empirica for defective work, only to find out late in the day (but before finalisation of Empirica's claim) that the Tribunal lacked jurisdiction to deal with it. There is a suggestion in a letter from the company's solicitor, Reuban Mansour, dated 17 April 2020 that, following withdrawal of the Tribunal application by Style Tiles and Bathrooms, a claim would be made in the Local Court against Empirica. Ms Graham states that action has not been commenced in the Local Court as they have been unable to find the Director of Empirica, Mr Marian Vazan. She states that Style Tiles and Bathrooms was given erroneous advice by the Tribunal in its original claim and, if the correct advice had been provided, the company would have immediately taken its claim against Empirica to the Local Court and would not now be in this position.
Mr Mansour also states in the letter that offers had been made to pay the debt by instalments but these had been rejected by Empirica. Ms Graham said that attempts were made to enter into an agreement with Mr Vazan, but these were unsuccessful. She also stated that, after Mr Vazan was no longer represented by his solicitor, she was unable to get in touch with him to make any arrangements. She noted that Empirica has not sought to enforce the judgement and stated that Style Tiles and Bathrooms is therefore unable to come to a payment arrangement through the Court.
Ms Graham stated that her son, Daniel, was diagnosed with testicular cancer on 24 August 2020 and required surgery and chemotherapy. She said that her son's illness had a great effect upon the family and also affected Style Tiles and Bathrooms' ability to take further action in relation to the license.
Ms Graham said that she took other steps which included applying to the Tribunal to have the orders to pay money overturned, but was informed the Tribunal was unable to assist. She said that she obtained copies of the recordings of the hearing before the Tribunal in it in an attempt to revisit the issue with NSW Fair Trading, but this took eight weeks. Ms Graham then sought further advice from the Tribunal and was advised to make the current application and request an extension of time to seek review of the decision to refuse the license. She said that she was unaware that the appropriate course was to make the current application.
In its submissions, NSW Fair Trading points out that the letter sent to Style Tiles and Bathrooms on 27 August 2020 advising that the internal review had affirmed the refusal of the renewal application, specifically set out the review rights and gave contact details for the Tribunal. NSW Fair Trading also points to a note of a conversation between a staff member and Ms Graham on 28 August 2020 in which she was again advised that she would need to go to the Tribunal. The staff member reports that Ms Graham indicated that she wasn't sure she wanted to have anything more to do with bathrooms but had another construction company that she could proceed with if necessary. NSW Fair Trading records show that Ms Graham was again advised on 17 September 2020 that she needed to either seek review of the decision with the Tribunal or lodge a new application for a license.
The company that Ms Graham appears to be referring to in the conversation is Dezigner Renovations and Construction Pty Ltd (Dezigner) which was issued a license in the category of builder on 25 May 2020. The website styletiles.com.au shows that Dezigner and Style Tiles and Bathrooms are carrying on business together with Dezigner involved in design and installation and Style Tiles and Bathrooms specialising in sales of tiling, bathroom, kitchen and laundry needs.
Ms Graham also stated that because of COVID-19 it took weeks if not months to speak with anyone in the Tribunal or NSW Fair Trading. NSW Fair Trading notes that both it and the Tribunal continued in operation throughout 2020. NSW Fair Trading refers to records which show that:

as noted above, Style Tiles and Bathrooms has carried on business with another company, Dezigner, which was issued contractor license on 25 May 2020;
liaised with NSW Fair Trading about the transfer of the nominated supervisor from Style Tiles and Bathrooms to Dezigner; and
liaised with NSW Fair Trading on several occasions about an application by her son, Daniel Bridges, for a contractor license which was granted on 4 November 2020.

Ms Graham stated that the expiry of the licence has left a profitable business and its employees and subcontractors without work and money to survive. She stresses that the debt is in relation to unpaid invoices and nothing to do with poor workmanship by Style Tiles and Bathrooms. NSW Fair Trading submitted that the arrangement between Style Tiles and Bathrooms and Dezigner would indicate that there has been little impact on employees and subcontractors as a result of the refusal of the license for Style Tiles and Bathrooms. NSW Fair Trading also notes that Ms Graham's son, Mr Bridges, is the nominated supervisor of another company, Style Tiles, Bathrooms and Kitchens Pty Ltd, of which Ms Graham is the Director.
NSW Fair Trading submits that, as the debt remains unpaid, the prospects of success in relation to the substantive application are small. This is because the provision in s 33B of the Home Building Act states that a licence must not be issued where the Tribunal's order has not been satisfied. This, it is submitted requires mandatory refusal of the license. NSW Fair Trading points to the discretion in s 33B(4) which would permit renewal of the licence but notes that this provision is not currently applicable as the order still has not been complied with.
NSW Fair Trading provided evidence that it had contacted Mr Vazan, the Managing Director of Empirica, on 14 May 2021. Mr Vazan advised that he could be contacted by email and telephone as listed on the contact page for the company's website. Mr Vazan also provided a copy of a draft Deed in relation to the outstanding monies which had been drafted by the solicitors for Style Tiles and Bathrooms and which had been sent to him on 12 October 2020 for consideration. He responded on 18 October 2020 seeking to add an additional clause to the Deed. Mr Vazan confirmed that the Tribunal Order has not been satisfied. It appears that the Deed was never executed. Ms Graham stated that she has sent three emails to Mr Vazan in the three days prior to the hearing, but had received no response.

Consideration

The application for review of the decision to refuse to renew the contractor license for Style Tiles and Bathrooms is considerably out of time. I do not accept Ms Graham's assertion that she was unaware of the option of seeking review of the decision by the Tribunal. This was made plain in the decision itself and in subsequent conversations she had with an officer from NSW Fair Trading.
I also do not accept Ms Graham's submission that she encountered considerable delays in speaking with or obtaining information from offices of the Tribunal and NSW Fair Trading due to COVID-19 restrictions. The information provided by NSW Fair Trading shows that she had considerable contact in relation to both this matter and other licensing issues over many months. Neither agency was closed during the relevant period and both remained open for business. Indeed, as set out in guidelines issued by the President of the Tribunal, enhanced arrangements for the filing of electronic documents were put in place to assist parties. It also appears that during this period other businesses operated by Ms Graham continued to trade.
While I accept that her son's diagnosis would have had a significant impact upon the family, I note that this did not prevent Ms Graham pursuing her son's licence during this period and, it seems, making other business arrangements.
There is no evidence before the Tribunal of any adverse impact, economic or otherwise, on employees or subcontractors engaged by Style Tiles and Bathrooms. Indeed, the evidence to the contrary is that business has continued to be carried on through other companies.
The fact remains that the Tribunal's order remains unsatisfied. It is difficult to accept Ms Graham's statements that she has been unable to contact Mr Vazan or that her solicitors were unable to progress a settlement. The draft Deed and correspondence from Mr Vazan to the solicitors in October 2020 indicates that he was prepared to enter into a payment arrangement by instalments at that time. The fact that he has not sought to enforce the judgement in the Local Court is irrelevant.
While not wishing to reach a concluded view, I agree with the submissions of NSW Fair Trading that the prospects of success in the substantive application are not high. The mandatory nature of s 33B in circumstances where the monies have not yet been paid strongly indicates that the application may fail.
In circumstances where Ms Graham has been able to carry on business through her other companies and where she was clearly informed of the need to make an application for review within 28 days but took no action, it is difficult to understand how strict compliance with the rules will work and injustice upon the applicant company. There do not appear to be any public interest considerations in Style Tiles and Bathrooms being permitted to pursue the review application.
In all the circumstances, particularly given the length of the delay and the absence of an adequate explanation for that delay combined with the fact that the substantive application has little prospect of success, I consider that time for the filing of the application should not be extended.

Orders 1. The application to extend time for the lodging of the application is refused.

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: 25 May 2021

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