Taouk v Commissioner for Fair Trading, Department of Customer Service

NCAT Occupational|2019-11-29

Background

In February 2019 Mr Taouk filed a Tribunal, Administrative review application form (the Application) dated 29 January 2019 seeking a review of a decision of the respondent (the Decision) received by him on 25 January 2019. Attached to the Application form was a notification dated 25 January 2019 from NSW Fair Trading, then a division of the Department of Finance, Services and Innovation but now known as Department of Customer Service stating that a review of a decision to refuse his application for a new contractor licence under the Home Building Act 1989 (HB Act) had confirmed the original decision. The name and address of the respondent to the Application was omitted from the form and is assumed to be the Commissioner for Fair Trading (the Respondent). The grounds for the Application are extracted at [4] below.

Material before the Tribunal

The Respondent relies on oral evidence and counsels' oral submissions made during the hearing together with a 244 page bundle of documents filed 12 March 2019, stated to be filed pursuant to s 58 of the Administrative Decisions Review Act 1997 (s 58 documents); Affidavit of Khadar Roude dated 16 April 219 and Supplementary Affidavit of Mr Roude dated 25 June 2019; Australian Government document named "CPC40912 Certificate IV in Plumbing and Services Release 3" generated 17 January 2017; Australian Government document named "CPCPDR4011B Design and size sanitary drainage systems Release 1" generated 6 February 2013; Australian Government Department of Education, Employment and Workplace Relations document named "CPCPDR3011A Plan layout of a residential sanitary drainage system Release 1" generated 26 May 2012; and written submissions dated 16 April 2019 (RS), supplementary written submissions dated 25 November 2019 (RSS) and closing written submissions dated 12 March 2020 (RCS).

Mr Taouk's Application

Mr Taouk's Application Form dated 29 January 2019 states the grounds for the Application are: 1 I held the tradesperson certificate for Plumbing, Draining, Gas Fitting from 1991 - to 2003 meeting the experience requirements. 2 there was a typing error on initial certificate. This was then re-issued without the error. The original assessor and chief executive officer, Warren Jack has signed a Statutory Declaration to this effect. 3 I am a fit and proper person the material relied on Suggests poor unders (sic) regulatory requirements
Attached to the Application, as the decision which Mr Taouk seeks review of, and dated 25 January 2019, is the result of the internal review by the Respondent of its determination of 13 June 2018 which refused Mr Taouk's application for a new contractor licence. The reasons for the internal review decision are contained in an attachment to the notification of the result of that review.

General legislative scheme

The Tribunal was established by the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act). The objects of the CAT Act include enabling the Tribunal to review and determine appeals against decisions made by certain persons and bodies; enabling the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible; and ensuring that the Tribunal's processes are open and transparent (ss 3(b)(ii) and (iii), 3(d) and 3(f)).
Section 28 of the CAT Act provides "The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation."

Home building legislative scheme

The HB Act is part of the legislative scheme which regulates aspects of the home building industry in New South Wales. The scheme is concerned to provide consumer protection including regulating the issue, cancellation and suspension of contractor licences, supervisors' certificates and trades persons' certificates in the industry, Commissioner of Fair Trading, Office of Finance and Services, NSW Fair Trading v Kassem [2015] NSWCATAP 173 at [9] and [10].
References to sections in this decision are to sections of the HB Act unless stated to the contrary.

Jurisdiction of the Tribunal

There is no dispute that the Tribunal is empowered to review the Decision (s 83B(1) of the HB Act and ss 9 and 55 of the ADR Act). Section 63 of the ADR Act requires the Tribunal, in determining an application concerning an administratively reviewable decision such as the Decision, to decide what the correct and preferable decision is having regard to the material then before it including any relevant factual material and any applicable written or unwritten law, and authorises the Tribunal to affirm, vary or set aside the administratively reviewable decision. If the Tribunal sets aside that decision the Tribunal is to make a decision in substitution for that decision or remit the matter for reconsideration by the administrator who made the decision.

Legislative scheme

The HB Act is part of the legislative scheme which regulates aspects of the home building industry in New South Wales (the Industry). The scheme is concerned to provide consumer protection including regulating the issue, suspension and cancellation of various licences, certificates and permits in relation to residential building work (Building Work).

Dismissal and reinstatement

The Application was dismissed on the second hearing day, 5 August 2019, because Mr Taouk did not attend the hearing, was not contactable and had provided no notice to the Tribunal. I observe that Mr Taouk had previously failed to appear at a directions hearing of the Tribunal on 12 March 2019. On that occasion an order was made by the then presiding member that if Mr Taouk failed to appear at the next listing the proceedings would be dismissed. Mr Taouk applied on 12 August 2019 for reinstatement of his Application on the grounds that he thought the hearing was being resumed on a later date and had so informed his witnesses by email. Despite being invited to do so, Mr Taouk failed to produce any relevant email.
The Respondent consented to the reinstatement, and on 22 August 2019 the Tribunal reinstated the Application.

Issues before the Tribunal

There is no dispute that: 1. the Respondent has power to issue the Licence. 2. Mr Taouk previously held a tradesperson certificate with the Respondent. 3. in order for Mr Taouk to succeed in his Application he must satisfy the Respondent (and in these proceedings, the Tribunal in place of the Respondent) that he possesses the relevant experience and qualifications and is a 'fit and proper' person to be issued with the Licence.
Each of 'experience', 'fit and proper' and 'qualifications' is dealt with below.

Previous proceedings before the Tribunal

Mr Taouk has previously unsuccessfully sought the assistance of the Tribunal in relation to an application for a contractor's licence under the HB Act. In Taouk v Director General, NSW Fair Trading [2016] NSWCATOD 41 (Taouk 2016) the Tribunal observed at [12] that Mr Taouk's qualifications were not an issue. The Tribunal affirmed a determination of a delegate of the Respondent that the Respondent was not satisfied that Mr Taouk was a fit and proper person to hold a contractor's licence under s 21(a) of the HB Act.
The delegate had also determined that Mr Taouk did not meet the relevant experience requirements. The Tribunal held that having regard to its decision concerning Mr Taouk's 'fit and proper' situation it was not necessary for it to make a decision in relation to Mr Taouk's relevant experience.
In these proceedings, the Respondent states that he is now satisfied with Mr Taouk's experience. However, the Respondent is no longer satisfied with Mr Taouk's qualifications. The Respondent also remains unsatisfied that Mr Taouk is a fit and proper person to hold the Licence.

Experience

At RS [1.11] the Respondent concedes "The Commissioner's delegate has determined that Mr Taouk has satisfied the experience requirements." Accordingly, the issue of relevant experience is not alive in these proceedings.

Fit and Proper

In his decision in Taouk 2016, Montgomery SM helpfully summarised the meaning of 'fit and proper' in the context of the refusal of Mr Taouk's then application for a licence under the HB Act. With respect, I find that summary remains relevant in these proceedings and I repeat it below: 40 The High Court dealt with the expression "fit and proper person" in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; 94 ALR 11; 64 ALJR 462; 21 ALD 1. In that matter the ABT was required to refuse a licence if it was not satisfied that the Applicant or the holder of a licence was a "fit and proper person". Toohey and Gaudron JJ stated (at 380) that: "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. " 41 In the same case, Mason CJ stated at [63] that: "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." 42 In Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 at paragraph [9] the High Court defined the concept of fitness and propriety as having three components - "honesty, knowledge and ability." 43 In Director General Department of Finance & Services v Porter [2014] NSWCATAP 6, the Appeal Panel stated: 30. In the light of the High Court's comments in Hughes and Vale Pty Ltd v New South Wales No 2 [1955] HCA 28; (1955) 93 CLR 127 at 156 it can be accepted in determining this appeal that honesty, knowledge and ability are each considerations which the relevant decision maker was bound to take into account in reaching a conclusion as to whether the respondent was a fit and proper person in the context of the PSBA Act. 44 Those comments are equally applicable in the context of the [HB] Act. 45 In Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 Walters J said of the term "fit and proper ": "In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails." 46 The Applicant's fitness and propriety must be determined in the light of the role he is to undertake. The Tribunal must consider the evidence before it, taking into account and weighing up matters both contrary to and in favour of the Applicant.
Division 1 of the HB Act, ss 19 to 23, deals with Contractor Licences and s 19(1) provides "The Secretary may grant contractor licences for the purposes of this Act." Section 20 relevantly states: 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 …, … (1A) Without limiting subsection (1)(a), in determining whether an applicant is a fit and proper person to hold a licence the Secretary is to consider whether the applicant is of good repute, having regard to character, honesty and integrity.
Mr Taouk dealt with the fitness and propriety issue at pages 2 to 4 of AS and in ACS at paragraphs 5-6 under the heading "Fit and proper" as well as touching on the issue to a greater or lesser extent at several points in ACS including paragraphs 8, 11, 13, 14 - 24, 32, 34 - 35, 38 - 40, 88 and 92. I have considered these submissions and Mr Taouk's supporting evidence.
In ACS paragraph numbers 29 to 40 inclusive are used twice. References in the immediately preceding paragraph to paragraphs "32, 34 - 35, 38 - 40," are to the first occasion on which those numbers were used in ACS.
In summary Mr Taouk submits that he has taken steps to address his "issues with understanding what is required and not careless in the information that [he provides] to Fair Trading'; he sought legal assistance in putting his application together and making sure his information is stated correctly, (page 3 of AS); and his character is not in question. He also refers to his firearms licence, ACS at [88].
Mr Taouk indicates he was well aware that whether he was a fit and proper person would arise in relation to his Application. Accordingly he cannot plausibly suggest that he was caught off guard by the Tribunal's consideration of this issue.
Unfortunately for Mr Taouk, the evidence now before the Tribunal does not support his submissions concerning his understanding of what is required by the Respondent, nor the extent of the care he takes with information he provides, nor the accuracy of his submissions to and evidence before the Tribunal.
The Respondent deals with matters involving fitness and propriety under heading 6 in RS, then at [5] to [7] in RSS and at [2] and [3.1] to [6.4] in RCS. I deal with several of the Respondent's submissions and supporting evidence and Mr Taouk's responses below.

Firearms Licence

The April documents include at page 6 a copy of a Firearms Licence/Permit issued in Mr Taouk's name and showing his photograph. The licence expires on 1 August 2022. Mr Taouk submits that holding such a licence requires him to be "fit and proper". He claims, without corroboration, that he has held the licence since 1985.
The Respondent submitted at [6] in RSS: The Tribunal also invited the Respondent to reconsider its opposition to Mr Taouk's fitness and propriety in light of Mr Taouk having received a firearms licence. Although a firearms licence has a fit and proper person test, each test takes its content from the relevant licence under consideration (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321). Various decision of this Tribunal and the Court of Appeal (e.g. Taouk v Commissioner of Police, NSW Police Force [2015] NSWCATAD 45, and Commissioner of Police New South Wales v Gray [2009] NSWCA 49 at [64]) identified matters relevant to fitness and propriety in the context of the firearms legislation (particularly matters relating to firearms safety) that are irrelevant to a contractors' licence. Equally, matters such as reliability in dealing with customers, past bankruptcies and business dealings are relevant to whether a person is fit and proper for the purpose of a contractors' licence but would not be an impediment to holding a firearms licence.
Mr Taouk submitted at [6] and [88] in ACS: 6. … the Commissioner of Police has determined that [Mr Taouk] is fit and proper to hold a firearms licence. No evidence has been adduced to suggest that the Commissioner has erred or that this higher standard (being one of extreme safety/danger) has been diminished by conduct or word. … 88. [Mr Taouk's] character is not in question (Firearms Licence …). He has no criminal record.

Consideration

I do not wholly agree with the Respondent's submission, in the last sentence at [6] in RSS referred to above, at least to the extent that the commission of offences involving fraud, dishonesty or stealing to which paragraphs 5(1)(f) and 5(2)(d) Firearms Regulation 2017 may apply, "would not be an impediment to holding a firearms licence".
I also note that no evidence has been brought to the Tribunal's attention as to what evidence was put before the Commissioner of Police or his delegate when Mr Taouk was issued with his firearms licence/permit. Accordingly I cannot be satisfied with Mr Taouk's implied claim that the issue of a firearm licence/permit provides automatic and compelling evidence that the holder of such a licence/permit is a fit and proper person to hold a relevant contractor's licence under the HB Act.

Production by Mr Taouk of incorrect information to the Respondent in support of an application for a licence under the HB Act

In the course of the Respondent's internal review requested by Mr Taouk as to the Respondent's refusal to issue him with a Licence following his 2018 application, the Respondent requested certain additional information. There is no dispute that Mr Taouk spoke with an officer of the Respondent and sent an email to that officer on 18 September 2018 (page 54 of the s 58 documents) in support of the Application.
The email included: … As an added benefit I've also completed a new assessment through Australian Institute of Training, to aid in eliminating any doubt that I am a fully qualified and competent plumber …
The Respondent submitted at [4] in RSS and [5] in RCS: 4. On 18 September 2018, Mr Taouk informed the Respondent that he had completed a new assessment with the Australian Institute of Training and would provide a further certificate. That certificate has not been provided. Mr Taouk should provide that certificate to the Tribunal at the hearing. If it includes all mandatory modules, the Respondent will accept that Mr Taouk is appropriately qualified. … 5 …, Mr Taouk's representations to the Respondent in September 2018 that he had 'also completed a new assessment through Australian Institute of Training' was false, or at the very least misleading, about a crucial matter - being whether he had completed the Cert III and Cert IV in plumbing: Ex A at p 54. 5.1 Mr Taouk's evidence at hearing was that he had started and then abandoned a further qualification: T73.20-30. This is in direct conflict with his statement that the new qualification had been 'completed.' The Respondent later asked for his 'newly issued qualifications' demonstrating that they believed Mr Taouk had new qualifications, not that he had merely attempted to obtain them: Ex A at p 59. 5.2 Evidence of Mr Taouk's qualifications were critical to the Respondent making an informed decision about whether he was a fit and proper person who was qualified to hold a licence. After deciding not to complete his further qualification, Mr Taouk should have informed the Respondent that he did not hold a new qualification from the Australian Institute of Training.
Mr Taouk's response in ACS included at [35]: … on many occasions the applicant made many admissions (T59.10, 61, 67.30, 71.40, 74.30) including that he had not in fact completed any new assessment was both a matter of memory debilitation and disputed facts. With great respect, the answers in cross examination appeared to confirm already established documentary facts.

Consideration

Mr Taouk certainly made some admissions when being cross-examined during the hearing. However Mr Taouk also changed his evidence on many occasions.
An example of changes in evidence appears several times in the transcript of cross examination on 29 Nov 19 from page 70 to page 74. During those pages Mr Taouk was referred to his email of 18 September 2018 and his statement that he had completed a new assessment through Australian Institute of Training (AIOT). Mr Taouk initially agreed he had started a new assessment but had not yet finished it. He said "I've paid my fees and everything. I've got proof of that."
Mr Taouk also said he had enrolled in an additional certificate III and certificate IV; he had not completed them and had not been refunded his money because he had ceased to do them - "I paid the fees and I was undergoing … a two to three week process". He said his intention to continue the assessments depended on the outcome of the proceedings and whether he could afford the fees. He said he had already paid for the certificate III and IV courses. He also said there were additional costs involved, such as taking time off work.
Eventually, after further cross-examination, Mr Taouk conceded that he had not completed any modules as part of certificates III or IV and was relying on credits for work done some years earlier with a different training organisation.
Mr Taouk conceded that he was trying to see what AIOT needed in order to issue fresh qualification certificates for him. He then said it was too difficult to have new certificates provided by AIOT and he had abandoned his proposal to complete new assessments but he might redo the assessments in the future.
Despite Mr Taouk informing the Respondent that he had completed certain courses and informing the Tribunal that he had paid for them, to my recollection Mr Taouk produced no evidence that he had at any relevant time enrolled in such courses with any training organisation nor had he paid any money for any such (proposed) enrolment.
I find that Mr Taouk had not enrolled in any relevant courses referred to in his 18 September 2018 email. I also find that it is highly implausible that Mr Taouk had paid any money for such courses

Non-production of documents destroyed in a fire

The Respondent submitted at 1(b) in RCS: … Mr Taouk gave unreliable evidence about his explanation for not having the necessary documents to verify his qualifications. He relied on a fire that he said occurred in late 2017 to justify not producing documents that the Respondent formally requested in 2016
Mr Taouk submitted in response at ACS [32]: … No evidence (which exists only in cross examination) establishes this as unreliable evidence. The cross examination on the topic did not cause retraction, and notwithstanding capable submission, no evidence was adduced to establish lack of reliability.
In cross-examination on 29 November 2019 at T21 Mr Taouk said a storage facility was "unfortunately destroyed by a fire in 2017. Had that not occurred I'd have all the documentations … had the Department of Fair Trading asked me for these documents early in the piece when I did the submission at the beginning I would have provided them with all of that …"

Consideration

I find that Mr Taouk applied on 15 November 2016 for a qualified supervisor's certificate in various work categories including plumbing, draining and gas-fitting (s 58 documents page 106 ff).
There is no dispute that the Respondent issued a notice to Mr Taouk by email on 25 November 2016 (s 58 documents page 143 ff) requesting the provision within 14 days of further information and supporting evidence in relation to his 15 November 2016 application.
Mr Taouk's evidence is that he could not provide the requested information because of a fire in late 2017.
I reject Mr Taouk's evidence.

Potential breaches of s 13 - work for Elevation Projects

The Respondent submitted in RCS at [3.1] to [3.5] that Mr Taouk's evidence included potential breaches of s 13 while working for Elevation Projects.
The Respondent claims that Mr Taouk's evidence included: 1. he did not hold a licence that allowed him to perform home building work in the last three years; 2. he worked (part time) for Elevation Projects on its home building construction projects; 3. he performed the role of 'foreman ', making sure contractors had arrived and were doing their work both generally and safely; 4. Mr Dib, who supervised Mr Taouk, was not on site all the time Mr Taouk worked on site; and 5. When Mr Dib was not on site he sometimes left Mr Taouk in charge.
The Respondent submitted, and it was not disputed, that Mr Taouk did not at any relevant time hold an endorsed contractor licence, nor a supervisor or tradesperson certificate nor an owner-builder permit. The Respondent also submitted, and again it was not disputed, that "Mr Taouk had his application for an endorsed contractor licence refused just before he started working at Elevation Projects".
Mr Taouk's response is found in ACS from [16] to [22].

Consideration

In the context of Mr Taouk's application for a Licence, much of his written response, such as "no submission is made that when Mr Dib absented himself, a fall in standards of construction and work, occurred or tat (sic) there was a complaint" at [19] and "In any case, if there was a potential breach, the responsibility and investigation would lie with the respondent not Mr Taouk" at [20] is non-responsive to the Respondent's submissions and unhelpful to Mr Taouk's application.
Similarly the statement at [17] in ACS: 17. No court, tribunal, or audit has found that he had committed an actual breach. Potentials and possibilities are not evidence, nor can they be relied on as a reason for refusal of Mr Taouk's licence application. is not evidence that there has been an investigation or a hearing by a court or tribunal or audit which has made a finding in Mr Taouk's favour, nor does the lack of any particular investigation or hearing satisfy me that Mr Taouk has relevant knowledge or is a fit and proper person in the context of his Application.
Section 13 of the HB Act provides; 13 Unqualified residential building work (1) An individual must not do any residential building work, except - (a) as the holder of an endorsed contractor licence, a supervisor or tradesperson certificate or an owner-builder permit, authorising its holder to do that work, or (b) under the supervision, and subject to the direction, of the holder of an endorsed contractor licence or supervisor certificate authorising its holder to supervise that work. Maximum penalty - 1,000 penalty units in the case of a corporation and 200 penalty units in any other case. ….
I observe that Mr Taouk's evidence was that he carried out home building work "under the supervision, and subject to the direction" of Mr Dib, whether or not Mr Dib was on site or elsewhere. Mr Taouk relied on Mr Dib being readily accessible by phone whenever he (Mr Dib) was off site.
No evidence was brought to my attention of any statement from Mr Dib or any other person in support of Mr Taouk's evidence. Mr Dib was not called to give oral evidence nor was there any evidence or submission that Mr Dib or any relevant person was unavailable to give evidence..
The transcript from page 39 of Mr Taouk's cross-examination on 29 November 2019 includes Mr Taouk's evidence that his daily tasks as a foreman included managerial responsibilities such as making sure "the workers were doing their work". Mr Taouk referred to the workers as being mainly contractors.
When it was put to Mr Taouk that he was "supervising contractors" he denied that he was supervising them. He said "I was just overseeing them … Dib oversees all the technical work and things. I just make sure the workers are there and doing their work and they're not doing anything stupid."
Mr Taouk admitted that, while he had no HB Act licence or certificate, he was "managing" and "overseeing" contractors although denying that he was "supervising" them.
The Respondent submitted at [3.5] in RCS that the Macquarie dictionary provides "To supervise is to 'to oversee (a process. work, workers, etc.) during execution or performance; superintend; have the oversight and direction of''"".
I find that the words "overseeing" and "supervise" have the same practical meaning in the context under discussion and there is no real difference between the phrases ""supervising contractors" and "just overseeing them".
Having regard to multiple errors in other uncorroborated written and oral evidence given by Mr Taouk throughout the proceedings, I find his evidence as to both the supervision and direction provided to him by Mr Dib and that he does not supervise contractors highly implausible.
Accordingly, I accept the Respondent's submission.
It may well be that English is not Mr Taouk's native tongue and he is honestly but mistakenly confusing the meaning of the words under discussion. Perhaps this is not the case. However, I am not satisfied that Mr Taouk was not, while working for Elevation Projects, carrying out work in breach of s 13.

Mr Taouk's character

Section 20 (1A) requires the Secretary (in these proceedings, the Tribunal) to consider whether Mr Taouk is of good repute having regard to his character as well as to his honesty and integrity.
In ACS Mr Taouk submitted at [88] [his] "character is not in question (Firearms Licence …). He has no criminal record". Contrary to this submission, there is a substantial and relevant dispute between the parties concerning Mr Taouk's character.
I observe that in Schmierer & Anor v Taouk [2004] NSWSC 345, proceedings in which the plaintiffs claimed the recovery of money paid to Mr Taouk by a company of which he had at all relevant dates been a director, White J made the following remarks: 1. At [11] in relation to a dispute with the company's other director as to whether that other director authorised Mr Taouk to deduct from the company's bank account whatever he was owed" ... I shall deal with this contention later in the judgment. I do not accept the defendant's evidence about it. 1. At [48] to [50]: 48 I formed an adverse view of the defendant's credibility for a number of reasons. His answers in cross-examination were often unresponsive … However there were two other matters of greater significance which reflected adversely on him. The first was his conduct in withdrawing $164,718.61 from the company's bank account on 17 September 1998, leaving it with a balance of only $100.00.[45] Even on his own evidence,[46] he did not have authority to deduct more from the company's accounts than that which he claimed to be owing to him in respect of work done on the … premises. The defendant has not claimed to be owed anything like the sum of $164,781.61 which he withdrew. I find below that this conduct was a serious breach of his duty as a director. 49 The second matter was more significant again. The defendant contended that he was entitled to the payments he received from Kentlans on the basis that he was owed money in respect of the … property. Accordingly he adduced evidence to show the amount he was owed in respect of that work. He produced a schedule he had prepared summarising a list of cheque butts which were claimed to show payments he had made in respect of the … project and the … property.[47] 50 The schedule … included an item in the following terms "04-12-1998 Cement Render and Plastering $12,500.00 Cheque No. 000090". The cheque butt recorded "4/12/98 … (Renderer)" … . The amount was recorded as "$12,500-". … counsel for the plaintiff pointed out that the bank statement for the account showed that the relevant cheque was for an amount of $2,500.00, not $12,500.00.[48] In subsequent oral evidence the defendant said that he gave the renderer bits and pieces of money, $2,500.00 and $2,000.00 and a cash amount of $10,000.00. He said that he placed the figure "1" in front of the figure "2" in the figure $2,500.00 on the cheque butt to record that he had paid an additional $10,000.00 in cash to the renderer.[49] I do not accept that evidence. Plainly the cheque butt was intended to convey that the cheque to which it was a butt had been written in the amount of $12,500.00. When a call was made for the production of any documents which recorded the withdrawal of a sum of $10,000 from an account of the defendant being the $10,000 said to have been paid to … no document was produced.[50] I do not accept that the defendant paid $10,000.00 in cash to … However, even if he did, the cheque butt and the summary were prepared with what I can only regard as the intention of producing a false impression that the rendering work had been paid for, in part, by a cheque for $12,500.00. I do not accept … submission that the cheque butt was merely an indication of the defendant's very informal accounting system in respect of work done. The fact that the deception was readily picked up by the plaintiff's representatives owing to the application of an ink of a slightly different hue of blue on the cheque butt and by comparison with the bank statement, does not persuade me that the defendant did not attempt a deception. 1. At [54] in relation to a cash payment Mr Taouk said he had made to the other director, His Honour said: … Not only is the defendant's assertion not corroborated by any record, such records as have been produced in evidence are inconsistent with his evidence ... 1. His Honour further stated: 70 In respect of [a second] … claim I find: a. the defendant had no authority to withdraw further funds from the company's account; b. even if the defendant had the authority which he claimed he had, it would not have justified the withdrawal of the sum of $164,718.61; c. the defendant's claim that he was entitled to all or some of the amount withdrawn because he was owed money by [the other director] in relation to work which he did at … is without foundation; d. the withdrawal was made by the defendant in breach of his fiduciary duties to the company; … 78 … the defendant helped himself to all save $100.00 of the money in the company's account. He had no authority to do so from his co-director. 79 His withdrawal of the money was a serious breach of his duty to the company. … 81 Even on the defendant's own evidence, he was not authorised to withdraw the money he did … … 84 The defendant's receipt of this sum was a misfeasance in the nature of a breach of trust whereby he acted wrongly by misapplying and retaining in his own hands moneys of the company. … 85 The defendant identified as one of the issues in the proceedings whether, if there were a breach … the defendant ought to be excused of liability … It is a pre-condition to relief … that it appear to the Court that the person liable has acted honestly and, having regard to all of the circumstances of the case, that he ought fairly to be excused for his negligence, default or breach. 86 In my view the defendant did not act honestly in applying the company's money to himself. He ought not fairly to be excused for his breach of his duty as a director.
I accept that the above judicial decision related to events occurring from 1997, more than 20 years ago. I also observe that Mr Taouk's evidence, which was not accepted by White J, was given in 2004, some 16 years ago. However, notwjthstanding the passage of time, the reasons given by His Honour for his decision do not assist me to find that Mr Taouk is a person of honesty and integrity.
In 2014 Mr Taouk applied to the Respondent for an individual contractor's licence under the HB Act. That application was refused and the refusal affirmed on internal review. Mr Taouk than applied to the Tribunal for a review of the internal review. The Tribunal heard Mr Taouk's application in November 2015 and in April 2016 published its decision affirming the internal review decision in Taouk 2016.
In Taouk 2016 the Respondent argued that the primary issue was whether Mr Taouk was a fit and proper person to hold the licence applied for. The Respondent expressed concerns as to Mr Taouk's honesty. Whether Mr Taouk had requisite experience was also a live issue.
In summary the Tribunal in Taouk 2016 found at [57] that, on the material before it, the combination of Mr Taouk's experience and qualifications removed any doubt regarding his ability to undertake construction work that would be authorised by the licence.
The Tribunal said; 59 … I accept that the decision in Schmierer and Anor v Taouk does the Applicant no credit, however, I also note that a significant period has passed since that decision and, with the exception of issues raised in relation to this application, there is no evidence of any other issues to raise concerns in regard to the Applicant's honesty.
However, the Tribunal also stated: 60 … I am satisfied that the Applicant was at least careless in his response to the application form questions that related to previous business difficulties and in regard to the accuracy of the information that he provided to the Respondent. 61 In my view, the discrepancies and irregularities and the Applicant's failure to declare his directorship of Kentlans are consistent with the approach that he took in regard to his application. It is apparent from his evidence that he held the view that in order to obtain the licence he just needed to establish that he had two years' building experience and that any other considerations were secondary. When seen in that context, the discrepancies and irregularities are easily understood. They show a cavalier attitude to the regulatory regime. … 63 The significance of the consumer protection aspect of the licensing regime established by the Act has been recognised in a number of cases before this Tribunal and the former Administrative Decisions Tribunal. To be regarded as a fit and proper person under the Act requires that that person fully understands the provisions of the Act and be prepared to observe its requirements. Regard must be given to the nature of the functions, obligations and duties which would arise under the licence … 66 [From Mr Taouk's] … submissions … [it] seems that his intention is that the Tribunal should draw the inference that he had learned from these mistakes and that his future conduct should not be viewed in the light of past mistakes. 67 However, my analysis of the Applicant's evidence gives me no confidence that he has any real understanding of the regulatory regime. I have no confidence that he now understands the importance of honesty and accuracy in his dealings with the regulator. 68 There is nothing in his evidence to suggest that he ever sought to gain an understanding of what the regulatory regime involves, or to adopt business practices that would allow him to meet his obligations under that regime. 69 Being fit and proper involves more than honesty and integrity, it involves knowledge and ability. At this point in time, I am not satisfied that the Applicant has the requisite knowledge to ensure that he can comply with applicable laws and other requirements of the regulatory regime. It is my view that the Applicant has not accepted responsibility for his carelessness and I am not confident that he would not repeat this approach in the future. 70 Having reached that conclusion it is my view that the licence should not be granted until such time as he is able to satisfy the Respondent that he has taken sufficient steps to address these issues. That being the case, the decision to refuse to grant the licence should be affirmed.
Mr Taouk has claimed, and I accept, that he has sought and obtained some legal advice in respect of his obligations. However, it seems to me, having regard to the above examples of inaccuracies by Mr Taouk in his communications with the Respondent and in his written submissions and written and oral evidence to the Tribunal, that he may have been more focussed on what he thought the Respondent and Tribunal needed to hear and read in order to approve his application than in accurately communicating what had occurred in the course of both his career and his attempts to obtain relevant qualifications and demonstrating his fitness and propriety.
I agree with the legal principles enunciated by Montgomery SM in Taouk 2016 as detailed above.
I am not satisfied that Mr Taouk has, as yet, demonstrated that he has sufficient understanding of the statutory requirements for fitness and propriety of licence holders or if he has that understanding, that he has demonstrated his compliance with those requirements.
Having regard to my above findings I am not satisfied that Mr Taouk would comply with relevant requirements if the contractor licence he applied for was issued to him at this time. Accordingly I am not satisfied that Mr Taouk is at this time a fit and proper person for the purposes of s 20(1)(a).

Qualifications

There are substantial disputes regarding Mr Taouk's qualifications and their validity.
Having regard to my findings that I am not satisfied that Mr Taouk is a fit and proper person to hold the Licence, it is not necessary for me deal with the voluminous evidence and submissions concerning the disputes regarding Mr Taouk's qualifications.

Further Consideration

Mr Taouk's evidence is that his legal name is Fahd Taouk. However, he also goes by the names Fahd Louie Taouk and Louie Taouk. During the hearing Mr Bagley conceded that documents in evidence bearing the name "Louie Taouk" referred to Mr Taouk. Mr Taouk agreed with this concession and I so find.

Orders 1. Documents in evidence which refer to Mr Louis Taouk are, by consent, taken to refer to Mr Fahd Taouk, the Applicant. 2. The decision under review is affirmed.

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

Amendments 18 June 2020 - Case title & MNC corrected. 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: 18 June 2020

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