Sydney AC Pty Ltd v Commissioner for Fair Trading, Department of Finance, Services and Innovation

Background

1. The applicant ("the air conditioning company") held a contractor licence in the categories of refrigeration and air conditioning. The air conditioning company's sole director, David Hesford, was listed as the nominated qualified supervisor.
2. Mr Hesford attended Mr Matos's premises in about July 2017 in respect of an air conditioning unit which was not working properly. During this attendance, Mr Hesford observed that English appeared to be Mr Matos's second language .
3. The air conditioning company quoted $12,850 plus GST to remove Mr Matos's old air conditioner and replace it with a new air conditioner. Mr Matos accepted this quotation.
4. In July 2017, the air conditioning company assisted Mr Matos with an insurance claim in respect of his old air conditioner. The claim was approved and the insurance company sent Mr Matos a cheque for $14,135 (being $12,850 plus GST). Mr Matos then forwarded the cheque to the air conditioning company.
5. On 1 August 2017, the air conditioning company returned the cheque as it was made out to Mr Matos. On the same day, Mr Matos's son sent Mr Hesford a text message asking whether there was "a little percentage of the cheque" that his father could keep. That is, he wanted a discount on the invoice. Mr Hesford refused.
6. On 4 August 2017, Pioneer International Pty Ltd, a subcontractor of the air conditioning company, attended and completed the installation of a new air conditioner. Mr Matos was invoiced $14,135.
7. Mr Matos's son emailed the air conditioning company on 16 August 2017 expressing dissatisfaction with the work. Mr Matos did not pay the invoice.
8. Mr Hesford gave oral evidence that he took Mr Matos to Fair Trading about this, and then applied to the Tribunal. The evidence indicates that the proceedings in the Tribunal were brought by Mr Matos. The material before the Tribunal indicates that Mr Matos contended that the air conditioning company did not install a new unit but replaced broken components on the existing unit.
9. On 3 November 2017, the Tribunal relevantly made the following consent orders: 1. By consent, the respondent is to supply and install the "Indoor Unit" …. on or before the 04-December-2017. 2. .. 3. By consent, the applicant is to pay the respondent the sum of $12,000 prior to the respondent supplying and installing the "Indoor Unit." 4. By consent, the applicant is to pay the respondent the sum of $1,700 in full and final settlement of all monies owed on the day the "Indoor Unit" is installed. 5. …
10. Mr Matos paid the air conditioning company $12,000 on 8 November 2017.
11. The air conditioning company did not install the indoor unit by 4 December 2017.
12. On 4 June 2018, the air conditioning company applied to renew its contractor licence. That application was refused on 9 October 2018, pursuant to section 33B(1)(a)(vi) of the Home Building Act 1989 ("the refusal decision"). Section 33B(1)(a)(vi) provides, in effect, that a contractor licence must not be issued unless the Commissioner is satisfied that the applicant "is not subject to any order of the Tribunal that has not been satisfied within the period required by the Tribunal."
13. The refusal decision was affirmed on internal review.
14. The air conditioning company applied to the Tribunal, under s 83B(1) of the Home Building Act, for an administrative review under the Administrative Decisions Review Act 1997 of the decision.

Evidence

1. The Tribunal had before it documents filed by the Commissioner under s 58 of the Administrative Decisions Review Act. These included the air conditioning company's application for a contractor licence and renewal application, material provided by the air conditioning company to the Commissioner, the orders made by the Tribunal in Mr Matos's matter, material sent to the Commissioner by Mr Matos and a file note of a conversation with Mr Matos, correspondence between the parties, the refusal decision and the internal review decision.
2. The applicant provided to the Tribunal, with its application, an account of the relevant events surrounding its non-compliance with the Tribunal's orders. It also provided tax invoices issued to Mr Matos, information about the air conditioning system and material supporting its application for an internal review which included a statutory declaration made by Mr Hesford. Mr Hesford gave oral evidence at the hearing and was cross examined.

Relevant law

1. The Commissioner (referred to in the Home Building Act as the "Secretary") may grant contractor licences for the purposes of the Home Building Act (Home Building Act, s 19(1)).
2. Section 33B of the Home Building Act 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: … (v) is not subject to any order of a court in relation to a building claim under Part 3A that has not been satisfied within the period required for satisfaction of the order, and (vi) is not subject to any order of the Tribunal that has not been satisfied within the period required by the Tribunal, and … (2) For the purposes of this section, each of the following persons is a relevant person in relation to an application for an authority: (a) the applicant, … … (4) Subsection (1) (a) (v) and (vi) do not prevent the issuing of an authority if the Secretary is satisfied that the person: (a) has complied with the order of the court or Tribunal after the period required by the court or Tribunal, and (b) has a reasonable excuse for the failure to comply with the order within that period.
3. The Tribunal's task when determining the application for review of the Commissioner's decision to refuse to renew an authority is to decide what the correct and preferable decision is having regard to the material before it (Administrative Decisions Review Act, s 63(1)).

Consideration

1. The air conditioning company is a "relevant person" for the purposes of s 33B(1) of the Home Building Act because it is the applicant for the renewal of its contractor licence (Home Building Act, s 33B(2)(a)). Section 33B(1) therefore precludes the Commissioner (and the Tribunal) from issuing a contractor licence to it unless satisfied that it "is not subject to any order of the Tribunal that has not been satisfied within the period required by the Tribunal" or unless s 33B(4) applies. That is, a contractor licence may be issued to the air conditioning company in accordance with s 33B(4) if the Tribunal is satisfied that it complied with the Tribunal's order after the period it was required to do so and that it has a reasonable excuse for failing to comply with the order within the required period.
2. There is no dispute that the air conditioning company failed to comply with the Tribunal's order that it supply and install the indoor unit of the air conditioner ("the work order") within the required period (that is, by 4 December 2017). It still has not installed the indoor unit as required by those orders. It says that it could not comply because it and its agent contacted Mr Matos numerous times to make an appointment to install the unit but Mr Matos did not respond.
3. There is a question as to whether, as a matter of statutory construction, the words "satisfied" in s 33B(1)(vi) and "comply" in s 33B(4) require a "relevant person" to have fulfilled the terms of a Tribunal order even where this has not been reasonably practicable (for example, because another party's conduct prevented the relevant person from doing so). If so, then there is a separate question as to whether the air conditioning company did, in fact, take sufficient steps to attempt to comply with the work order and whether Mr Matos refused it access to the premises by his conduct.
4. The primary definition of "satisfy" in the Macquarie Dictionary is "to fulfil the desires, expectations, needs, or demands of, or content (a person, the mind, etc.); supply fully the needs of (a person, etc.)." Another meaning is "to answer sufficiently (an objection, etc.)."
5. I consider that the ordinary meaning of an order having "been satisfied" (within s 33B(1)(vi)) is that the order has been complied with. This construction is consistent with s 33B(4) which uses the term "comply" as if it were interchangeable with "satisfy." The Parliament has expressly made provision for a person who has a reasonable excuse for not complying with an order within the required period in s 33B(4). There is no provision for a person who has a reasonable excuse for not complying with an order at all. The text suggests that Parliament intended that, if a "relevant person" did not comply with an order at all, even if the person had a reasonable excuse for non-compliance, the person would not be entitled to be issued with an authority.
6. The consequences of this interpretation might suggest that it was not intended and that a different construction should be preferred. The consequences might be that a person with a reasonable excuse for non-compliance with an order would never be entitled to be issued with an authority again. It might be, of course, that a person in this situation could approach the Tribunal and apply for a variation of the orders, subject to the Tribunal being functus officio.
7. Even if a strict construction of s 33B(1)(vi) is adopted, there is a possibility that the work order itself was subject to an implied condition precedent, requiring Mr Matos to provide access to his property before the obligation to install the air conditioner arose.
8. In my view, the work order was subject to at least one implied condition precedent, being the payment of money to the air conditioning company by Mr Matos. The Tribunal's third order required Mr Matos to pay $12,000 "prior to" the installation. That condition precedent was satisfied when Mr Matos sent the air conditioning company a cheque for that amount. However, if Mr Matos had not paid the $12,000, then the air conditioning company would probably have "satisfied" the Tribunal's first order without doing anything (in that the condition precedent not having been fulfilled, the order would not have required any action by the air conditioning company). A possible construction of the work order is that it was also subject to an implied condition precedent that Mr Matos provide the air conditioning company with reasonable access to the premises.
9. The Home Building Act contemplates that there are some circumstances in which a home owner may be obliged to allow a holder of a contractor licence access to his or her premises. Section 48MA of the Home Building Act provides, relevantly, that a tribunal determining a building claim involving an allegation of defective work is to have regard to the principle that rectification of the defective work by the responsible party is the preferred outcome. In Kurmond Homes Pty Ltd v Marsden [2018] NSWCATAP 23 at [31]-[32], the Appeal Panel referred to the second reading speech inserting this provision and commented that the Minister made clear that the purpose of the provision "was to prevent unreasonable refusal of a homeowner to permit access to a building site to a builder who was willing to carry out rectification work." When ordering a builder to rectify defective work, under s 48O(1)(c) of the Home Building Act, the Tribunal may, consistently with s 48MA, require the homeowner to permit the builder to access the property in response to a reasonable request for access. It is possible that such a requirement, if not made explicit, may be an implicit precondition of a work order made against a builder.
10. Section 48O(2) of the Home Building Act provides that the Tribunal can make an order even if it is not the order that the applicant asked for. This evinces an intention that the Tribunal's power to make orders extends, for example, to making work orders where an applicant has requested a money order, even if the applicant does not want such an order. This statutory context might support a conclusion that a home owner has a duty to allow a contractor reasonable access to the home owner's property for the purposes of complying with a work order and that a work order may implicitly be contingent upon a home owner providing such access. It might follow that, if reasonable access is not provided, the work order would nevertheless be "satisfied."
11. It is not, however, necessary for me to decide whether the legislation or the work order can properly be construed in this way because I am not satisfied that Mr Matos unreasonably refused access to his property.

Did Mr Matos unreasonably refuse access to his property before 4 December 2017?

1. The Tribunal's orders were made on 3 November 2017. Mr Matos's payment of $12,000 was made on 8 November 2017. That left just under four weeks for the air conditioning company to comply with the work order.
2. In a "timeline of events" which the air conditioning company provided to the Commissioner for the purpose of the internal review, the air conditioning company stated that, on 23 November 2017, "Pioneer attempted to call customer to arrange installation of new evaporator…. Pioneer posted letter as well to Mr Tony Matos." Mr Hesford explained in his statutory declaration that Pioneer International is the manufacturer of the air conditioning unit and that it had agreed to undertake the works required by the works order. Mr Hesford also stated in his statutory declaration that Mr O'Loughlan of Pioneer International attempted to contact Mr Matos "via letter" after "failed attempts" to contact him by telephone. He did not, however, provide any details or evidence of the number of failed attempts or the dates on which they occurred.
3. The air conditioning company provided a copy of the letter sent by Pioneer International to Mr Matos on 23 November 2017. As the Commissioner pointed out and Mr Hesford accepted at the hearing, the letter was sent to the wrong address.
4. The Commissioner's materials record that, on 5 December 2017, Mr Matos emailed Fair Trading to advise that the works remained outstanding. They also record that, on 7 December 2017, a Fair Trading officer telephoned Mr Matos on a mobile number and spoke to his grandson "due to the language barrier." The grandson advised that Mr Matos intended to return to the Tribunal to have the $12,000 reimbursed.
5. The Commissioner's materials included a file note of a telephone conversation between an officer of Fair Trading and Mr Matos dated 8 October 2018. The note indicates that the Fair Trading officer called Mr Matos on a mobile telephone number. The note records: "Mr Matos expressed his disappointment with the FT/NCAT process with much profanity. Mr Matos advised the licensee did not make contact, 'no phone calls, no letters, no visits.' Mr Matos advised after the last conversation between myself and his grandson he made the decision to not go back to the Tribunal, and had the matter resolved via NRMA insurance claim. Mr Matos advised 'as far as I'm concerned the matter is closed'."
6. Mr Hesford suggested that this call to Mr Matos must have been to Mr Matos's son or grandson, because Mr Matos did not have a mobile number. However, the reference to Mr Matos's "grandson" in the file note indicates that this is unlikely.
7. Mr Hesford's oral evidence at the hearing was, first, that his "office girl" rang Mr Matos twice in December 2017 to arrange installation, but there was no answer. He said she also called him before 4 December 2017, but did not get a reply, because the company wanted the $1,700 he would be required to pay after installation. Under cross examination, Mr Hesford said his "office girl" had called Mr Matos twice before 4 December 2017. Mr Hesford also told the Tribunal that he had spoken to George Hadoch of Pioneer International who said the company had been "chasing" Mr Matos "trying to get in there." Mr Hesford did not personally make any attempts to contact Mr Matos.
8. At the hearing, I pointed out to Mr Hesford that the tax invoice provided to "Mr and Mrs Matos" on 20 July 2017 contained Mr Matos's phone number (a landline), but one digit appeared to have been corrected and another digit was crossed out. Mr Hesford informed me that the correct telephone number was contained on an invoice dated 4 August 2017. The telephone number on that invoice, a landline, had nine digits instead of eight (and was very similar to the number on the invoice of 20 July 2017). Mr Hesford then assured me that his employee and Pioneer International had telephoned the correct number, being the number on the invoice dated 20 July 2017.
9. I am not satisfied that an employee of the air conditioning company telephoned Mr Matos on the correct telephone number prior to 4 December 2017. The company made no mention of this occurring in the "Timeline of Events" it relied upon for the internal review. There was no evidence from any employees of the air conditioning company as to their attempts to call Mr Matos, nor was there any evidence from Pioneer International about this. There was no evidence (other than Mr Hesford's assertion at the hearing) as to the telephone number which the air conditioning company's employee and Pioneer International used to contact Mr Matos.
10. The evidence which the air conditioning company relied upon for the internal review, which I accept, is that Pioneer International "attempted to call" Mr Matos. There is no evidence as to whether the call rang out or whether the attempt was unsuccessful for another reason. There is no evidence as to what telephone number Pioneer International used.
11. The air conditioning company had the mobile number of Mr Matos's son, as they had exchanged text messages with him in July and August 2017. Mr Hesford's oral evidence was that neither his company nor Pioneer International contacted Mr Matos's son on this number after the Tribunal's orders for the purposes of arranging access to install the indoor unit.
12. I am not satisfied that Mr Matos refused the air conditioning company or its subcontractor access to his premises prior to 4 December 2017. This is because I am not satisfied that the air conditioning company or Pioneer International left any telephone message for him to call either of them or requested access, other than by a letter sent to the wrong address. The attempted telephone call from Pioneer International was made on 23 November 2017, less than two weeks before the date on which the air conditioning company was required to install the indoor unit and fifteen days after payment had been made to the air conditioning company. There is no evidence of any attempt being made to gain access prior to this date.
13. Even if I were to accept Mr Hesford's evidence that his employee called Mr Matos twice before 4 December 2017, there is no evidence as to which number she called or whether she left a message for him.

Did Mr Matos unreasonably refuse access to his property after 4 December 2017?

1. The air conditioning company provided copies of two letters sent by Pioneer International to Mr Matos after 4 December 2017. These were sent to the wrong address.
2. Mr Hesford's evidence was that his employee rang Mr Matos twice in December 2017. However, there is no evidence from her as to this, or as to the number she called, or that she left any message for him.
3. Mr Hesford also gave oral evidence that Mr Hadoch of Pioneer International said that they had been "chasing" Mr Matos. There is no reliable evidence that Pioneer International called Mr Matos after 4 December 2017, that it called the correct number or that it left messages asking Mr Matos to return its call.
4. For these reasons, I am not persuaded that Mr Matos unreasonably refused access to his property through his conduct or at all.

Summons

1. The air conditioning company sought to issue a summons to Mr Matos to attend the hearing. The Registrar approved the summons but Mr Hesford did not serve it because he understood that a staff member in the Registry would do this. The Registrar does not serve summonses.
2. It may be that, where an individual who is the subject of a summons could provide critical evidence for a party, the Tribunal's obligations to explain to the parties any aspect of the procedure of the Tribunal when requested to do so and to observe the rules of natural justice (Civil and Administrative Tribunal Act 2013, s 38(2) and (5)) could require it to offer an adjournment to a self-represented litigant who had misunderstood the summons procedure. However, this is not such a case.
3. Mr Hesford did not inform the Tribunal of the evidence the air conditioning company wanted to obtain from Mr Matos. Mr Hesford submitted, however, that Mr Matos did not want him to install the air conditioner by November 2017 because Mr Matos did not want to have to pay him the $1,700 which he had been ordered to pay after the installation. Mr Hesford also pointed to what he said was Mr Matos's son's improper suggestion that his father should be allowed to keep $4,000 of the insurance money. Neither of these claims, if established, would change the outcome of these proceedings.
4. The Tribunal is constrained, by s 33B(1)(a), to affirm the Commissioner's decision to refuse to renew a contractor licence if satisfied of one of the matters in that paragraph, subject to the application of s 33B(4). There is no reasonable likelihood that, if Mr Matos was summonsed to attend the Tribunal and give evidence, his evidence would alter my findings that the air conditioning company did not satisfy the Tribunal's order within the required period and did not comply with it after the required period.

Orders

1. I find that the correct and preferable decision is that made by the Commissioner. Accordingly, I made the following order: 1. The respondent's decision is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 23 July 2019