Tricon Builders Pty Ltd v Secretary of the Department of Customer Service; Nahas v Secretary of the Department of Customer Service [2025] NSWCATOD 128;

1. Accordingly, according to the Applicant, any contravention should be characterised at the lowest end of potential seriousness with little basis for a penalty calculated to deter future contraventions or to send a message to the industry.
2. In response, the Respondent pointed out that section 66 of the DBPA imposed a maximum penalty of $220,000 in the case of a body corporate and $110,000 in the case of an individual. Section 62 of the HBA imposes a maximum penalty of $50,000 in the case of a corporation and $11,000 in the case of an individual and the penalties in these applications must be viewed in this context.
3. In addition, the Respondent contended that no reliance should be placed on the Applicant's claims of pecuniary loss which is a bare assertion and unsupported by evidence.
4. As to the fact that the DBPA was a new statutory regime, the Respondent submitted this was not sufficient to address the breaches of Tricon of fundamental requirements such as to have CIRDs prior to the commencement of building work and to have them lodged by an authorised person. According to the Respondent, the evidence establishes that even with the assistance and intervention of the regulator, the Applicants continued to fail to comply with the requirement to have the CIRDS lodged by an authorised person prior to commencement. This is a reference to the fact that Mr Elias Nahas made a lodgement when he was not properly authorised with such authorisation occurring approximately a month later. The Respondent submitted as follows:

The Tribunal would find that the applicants' focus was upon their own financial interest in completing the building work comprised in the development and not on their obligations to comply with the statutory regime in the public interest.

The respondent acknowledges that the applicants made some attempts to cooperate with the regulator but on the whole the focus of Tricon's energies (through Mr Elias Nahas) in particular was on his frustration with the process and his perception that Tricon was being victimised. This attitude plainly did not assist Tricon to focus its mind on the matter at hand and its actual obligations: to comply with the essential requirements of the DBPA, to comply with the Section 77 Notice fully, and to respond to the issues raised with it by the regulator.

1. During the hearing it was indicated that it was not in dispute that apart from the payment of the penalty for which a stay had been obtained, that what was outstanding with respect to compliance with the disciplinary action was implementing a quality assurance system. In written submissions, the Respondent indicated:

That, Mr Nahas and Tricon have complied with the conditions, other than the condition as to implementation of a quality assurance system, does not mean that the Tribunal should not affirm the disciplinary action so imposed.

1. Despite this common ground, in subsequent written submissions, the Respondent then contended that there is no evidence that there had been compliance with the requirements of the educational components. This submission was because while there was evidence that Mr Elias Nahas had enrolled in courses to fulfill the education requirements, the courses for Mr Elias Nahas were scheduled for June 2025 and September 2025. In subsequently acknowledging these course dates, the Respondent then took issue with the delay in compliance. In any case, the Respondent contended that in these circumstances, it would be open to the Tribunal to find that there has been a breach of the educational conditions and for the Tribunal to impose more severe disciplinary action.
2. In written submissions, the Respondent contended that in determining an appropriate penalty, the key consideration is proportionality. In subsequent written submissions, the Respondent relied on Australian Building and Construction Commissioner v Pattison [2022] HCA 13; (2022) 399 ALR 599 by way of analogy to submit that the imposition of penalties is not constrained by the notion of proportionality and the primary purpose of penalties is deterrence both specific to the wrongdoer and to the industry.
3. As to the qualification of the monetary penalties, the Respondent submitted that:

(1) The monetary penalty imposed on Mr Nahas under the HBA is modest - $5,000.

(2) The monetary penalty imposed on Mr Nahas under the DBPA is modest - $20,000 under the DBPA is 18% of a maximum under the DBPA of $110,000 for non-corporations.

(3) The monetary penalty imposed on Tricon under the HBA is modest - $4,000.

(4) The monetary penalty imposed on Tricon under the DBPA is modest - $80,000 is 36% of the maximum available of $220,000 for corporations under section 66(1)(c) of the DPA and the additional monetary penalty of $4,000 is in the context of a maximum monetary penalty $50,000 for corporations under section 62(1)(c) the HBA.

(5) The evidence is that the cost of the development was in the order of $6,050,000.

(6) There is no evidence as to the effect on Tricon of the imposition of the monetary penalty and no attempt at quantification.

(7) There is no evidence as to whether Tricon made a profit from the development or whether Tricon has sold or retained and rents for income the apartments or commercial spaces comprised in the development and otherwise retains the asset constituted by the development.

(8) The monetary penalties reflect the seriousness of the breaches found, the nature of the breaches (including breach of stop work orders imposed by the regulator) and amount to less than 0.02% of the cost of the development.

1. The first issue to be resolved is whether the power to take disciplinary action is evoked as against Tricon and/ or Mr Nahas.
2. If the answer to the first issue is yes, what is the appropriate disciplinary action to be taken with respect to Tricon and/or Mr Nahas in the circumstances, if any.

Consideration in relation to disciplinary grounds

1. There is no dispute that prior to the disciplinary action the subject of these proceedings, there were no conditions attached to Mr Nahas' registration. I accept that prior to the disciplinary action the subject of these proceedings, no adverse action had been taken against the Applicants in respect of any licences or registrations held by them under the applicable statutory framework. I also accept that the Applicants and Mr Elias Nahas are experienced and qualified in their respective fields.

Tricon Disciplinary Ground 1: Contravention of s 89(7) DBPA - Failing to comply with SWOs

1. The alleged work which the Respondent contends falls outside the exceptions to the SWOs can be split into three categories. The first is glazing work where the aluminium metal work that was undertaken was to window or facades i.e. "aluminium glazing". The second category was to fire safety elements which the fire certifying authority has directed Tricon to rectify and the third was to the removal of the crane which was undertaken by its owner, and not Tricon, and the work undertaken by Tricon to make the area safe after its removal.
2. I am not satisfied based upon the circumstances of granting the exceptions to the SWOs that the aluminium glazing was unauthorised. In this respect, I note that on 26 October 2022, Mr Elias Nahas proposed that an exemption be applied to SWO-1 in relation to brick laying, tiling and aluminium work in the following terms:

I propose the bricklayer, tiler, and aluminium metal worker be allowed to continue.

1. The exception was initially refused but was later granted on 8 November 2022 and was phrased as follows:

Limited Building Work for the site including brick laying, tiling and aluminium metal work only

1. A distinction can be drawn as between what was requested by Mr Elias Nahas and the terms of the grant. Mr Elias Nahas requested an exemption based upon the work certain workers undertake. The Respondent indicated that the request was approved but then rephrased it by defining it according to the work. In the case of the former, an aluminium metal worker will often perform the glazing where the aluminium metal work is with respect aluminium glazing to windows and facades as it was in this case. In those circumstances, it was a reasonable and valid interpretation to apply to the exemption, given the form that it was requested, that it included aluminium glazing to windows and facades because the exemption that was sought was for the work that an aluminium metal worker undertakes and such work is undertaken by this type of worker.
2. With respect to the fire safety elements, according to the Applicant, during a meeting between representatives of Tricon and representatives of the Respondent including Ms Cianci, Mr Whitton, Mr Lynch, Tricon was advised that fire safety work had to be addressed and found compliant before the stop work orders could be removed. According to the Applicant, the fire safety works were undertaken in consideration of that direction as well as the written order from Jospeh Hallal of Phoenix Building Approvals Pty Ltd directing Tricon to rectify minor defects. According to the documents relied upon by the Applicants, Tricon's understanding was that it was obligated to comply with that direction and SWO-1 did not impact that obligation. That the Respondent required fire safety work to be compliant was also consistent with some of the action items and audit report issued by the Respondent to Tricon including:

(1) the installed sprinkler layout was not installed as per the regulated design

(2) the provision of evidence by Tricon as to the fire booster assembly being installed in compliance with the fire engineering report.

1. It was also consistent with the email sent by Ms Cianci with SWO-1 on 6 September 2022 which stated that the action items had to be completed to the DBP Audits team's satisfaction to lift the Stop Work Order. That was reiterated in an email on the same day by Fair Trading Building Inspector, Mr Jonathan Lynch.
2. The issue of whether that representation was made on behalf of the Respondent to Tricon is of obvious significance to whether there has been a breach of s 89(7) of the DBPA by Tricon because if it was made, it acted as an exception to the SWOs or permission to Tricon to undertake such work to have the SWO withdrawn or, alternatively, it was reasonable for Tricon to apply that understanding.
3. The Respondent admits that fire safety works were undertaken by Tricon in consideration of the directions of Innova (see for example, the statement of Mr Sorgese), however there is scant evidence from the Respondent as to the Applicant's allegation that it received advice from the Respondent's officers, specifically at a meeting with Ms Cianci, Mr Whitton and Mr Lynch, that the fire safety work had to be addressed in order to have the SWOs removed. For example:

(1) the Notice to Show Cause denies that Mr Whitton or Ms Cianci authorised such work other than the express exceptions that were approved, however, other than a blanket denial, the identity of the holder of this information or how it became known to them is unclear as the Notice to Show Cause and the cover letter is not attributed to any specific individual.

(2) Mr Sorgese does not expressly deny the representation was made but it is also not contended that he was present at the meeting in which the alleged representation was made in any case.

(3) Mr Whitton nor Mr Lynch have provided a statement either in these proceedings or as part of the decision-making process of the Respondent despite the email from Mr Lynch indicating that the action items, that included some fire safety work, needed to be addressed to have the SWO lifted.

(4) Ms Cianci denies approving any other work but is silent as to whether any of her colleagues including Mr Whitton and Mr Lynch, approved such work at a meeting or otherwise.

(5) Ms Cianci also gives evidence of the following exchange with Mr Elias Nahas while observing the fire safety work that had been undertaken which is consistent with Tricon's understanding that they were informed to rectify the first safety defects:

I said: When did you do this work

He said: Sometime after Christmas

I said: You know there was a stop work order in place

He said: You told me to rectify the defects

[Emphasis added]

1. Given the factual matter in dispute, the absence of evidence from individuals present at the alleged meeting, and the lack of cross-examination of any witnesses who did give evidence, I cannot resolve on the evidence before me the ambit of the exception to the SWOs. It would be inappropriate to make a finding of breach of s 89(7) of the DBPA against Tricon in those circumstances and I decline to do so.
2. The last issue is in respect of the movement of the crane. The crane was not moved by Tricon but the Respondent takes issue with the fact that Tricon made safe the area by filling holes left by the crane with cement which was to comply with a direction of SafeWork NSW. I do not accept that this work is a breach of the SWOs. This is because the power of a SWO pursuant to section 89(1) of the DBPA is limited to "building work" (as defined in section 4), "professional engineering work" (as defined in section 31) or "specialist work" (as defined in section 34) and the work does not fall within any of these definitions. With respect to "building work", the term is defined as follows

(1) For the purposes of this Act,

"building work" means work involved in, or involved in coordinating or supervising work involved in, one or more of the following--

(a) the construction of a building of a class or type prescribed by the regulations for the purposes of this definition,

(b) the making of alterations or additions to a building of that class or type,

(c) the repair, renovation or protective treatment of a building of that class or type.

1. I am not satisfied that the filling of holes left by the crane is work involved in the construction of a building or otherwise falling within (a), (b) or (c) but rather was a result of the removal of a crane on a site in circumstances where that Site was the subject of SWOs.
2. Even if I was satisfied that the aluminium glazing, the fire safety works and/or the filling of holes left by the crane were breaches of the SWOs, the circumstances are such that it would be inappropriate to exercise the discretion to impose a penalty or disciplinary action on Tricon: section 66(1)(a) of the of the DBPA. This is because it was reasonable for Tricon to adopt an interpretation that such work was permissible in the circumstances and therefore the case is not consistent with the objective of deterrence: Australian Building and Construction Commissioner v Pattison (2022) 399 ALR 599; [2022] HCA 13 at [9].
3. These circumstances are as follows:

(1) With respect to the aluminium glazing, the circumstances have been identified above and pertain to the inconsistency as between the approval of the exemption requested with the terms of the exemption once issued.

(2) With respect to fire safety and the filling of the holes left by the crane, irrespective of the ambit of the issued exemption, an exemption was issued which allowed certain work to proceed. As such, workers were attending the Site. It was reasonable for Tricon to assume that the Site needed to be safe for those workers and consistent with its occupational health and safety obligations including by complying with a direction from SafeWork NSW and in consideration of fire safety.

1. I am therefore not satisfied that Tricon breached the SWOs and, accordingly, I am not satisfied that Tricon's breached s 89(7) of the DBPA. Accordingly, the discretion in s 64(b) of the DBPA to take disciplinary action as provided in s 66 of the DBPA is not enlivened.

Tricon Disciplinary Ground 1: Contravention of s 19 DBPA - Absence of regulated designs

A building practitioner must not, except with reasonable excuse, carry out any part of building work for which a regulated design is to be used unless--

(a) the practitioner has obtained a design from a registered design practitioner for the work and a design compliance declaration for the design from a registered design practitioner whose registration authorises the practitioner to provide a declaration as to the matters to which the declaration relates, and

(b) the declaration states that the design complies with the requirements of the Building Code of Australia and other applicable requirements prescribed for the purposes of section 8(1).

1. A regulated design is required for "mechanical systems" which includes systems to facilitate the safe occupation and use of a building associated with heating, ventilation, air-conditioning and air distribution, smoke control and exhaust and stairwell pressurisation: Design Practitioners' Handbook.
2. As summarised above, the Respondent does not dispute that there was an absence of regulated designs in respect of installation of refrigeration piping and drainage pipes for air conditioning in April 2022 and the replacement of refrigerant pipe insulation on 21 June 2022 however, the Applicant explains the circumstances relevant to the contravention.
3. I accept, as submitted by the Applicant that those circumstances included the following:

(1) The installation was a product of an honest mistake because of the fact that as at this time, Tricon held a construction certificate for installation of air conditioning units and was not aware that it also required a CIRD.

(2) Tricon became aware of the need to lodge a CIRD for the air conditioning when DBPAT carried out their inspection in June 2022. Tricon then stopped works related to air conditioning until it had lodged a CIRD except for work that DBPAT directed Tricon to complete as part of the audit. This included replacing the refrigerant pipe insulation which was completed by the time of the 18 August 2022 inspection.

(3) Tricon otherwise consistently engaged with the DBPAT in the drafting of the CIRDS and acted in response to their advice arising from the audit.

(4) Regarding the failure to lodge CIRDs or DCDs on the NSW Planning Portal in relation to CC3, Tricon attempted to lodge CIRDs and DCDs the subject of CC3 via the NSW Planning Portal on six occasions between 25 January 2022 and 30 June 2023 but was unable to do so because it was not familiar with the NSW Planning Portal system. Tricon had believed that it had done so and only became aware that they were not lodged as a consequence of the audit. Tricon then took steps to address the issue in relation to lodgement including completing a TAFE NSW course that was endorsed by the Building Commission as 'useful tools'.

1. While these factual findings as to the circumstances are relevant to a consideration of the severity of the conduct and the appropriateness of disciplinary action (which is considered below), they do not provide a "reasonable excuse" for the purposes of section 19 of the DBPA.
2. I am satisfied that Tricon carried out the installation of refrigeration piping and drainage pipes for air conditioning in April 2022 and the replacement of refrigerant pipe insulation on 21 June 2022. I find that Tricon carried out building work in relation to air conditioning elements without first obtaining CIRDs and DCDs. I am satisfied that Tricon contravened section 19 of the DBPA.
3. The maximum penalty for a contravention of s 19 of the DBPA is 1,500 penalty units (in the case of a body corporate) or 500 penalty units (in any other case). A penalty unit is quantified as $110.

Tricon Disciplinary Ground 1: Contravention of s 21 DBPA - Not built in accordance with regulated designs

A building practitioner who does building work must take all reasonable steps to ensure that building work relating to a building element or performance solution for which a regulated design is to be used is carried out in accordance with a design for which a design compliance declaration has been obtained from a registered design practitioner whose registration authorises the practitioner to provide a declaration as to the matters to which the declaration relates.

1. A "building element" is defined in section 6 as:

(1) For the purposes of this Act,

"building element" means any of the following--

(a) the fire safety systems for a building within the meaning of the Building Code of Australia ,

(b) waterproofing,

(c) an internal or external load-bearing component of a building that is essential to the stability of the building, or a part of it (including but not limited to in-ground and other foundations and footings, floors, walls, roofs, columns and beams),

(d) a component of a building that is part of the building enclosure,

(e) those aspects of the mechanical, plumbing and electrical services for a building that are required to achieve compliance with the Building Code of Australia,

(f) other things prescribed by the regulations for the purposes of this section.

(2) The regulations may exclude things from being building elements for the purposes of this Act.

1. The Design and Building Practitioners Regulation 2021 provides that a "a vertical transportation product" is also a building element. This in turn is defined as lift, escalator or moving walkway in the Dictionary.
2. The Applicant admits that certain work was carried out which was not consistent with regulated designs but does not identify which work this admission pertains to. This ambiguity may have been contributed to by the fact that the alleged conduct relied upon by the Respondent is difficult to identify in the materials and requires a traversing of several sources.
3. The Notice to Show Cause refers to certain paragraphs of the audit report and notes that building elements did not accord to the corresponding declared designs. Reference is also made to certain paragraphs of the Statement of Ms Cianci as also containing instances that give rise to the finding of breach of s 21 of the DBPA. It is not stated whether the list in the Statement of Ms Cianci is an accumulative list which incorporates the items from the audit report but from an assessment of both, it would appear not to be.
4. After citing those paragraphs of the audit and the Statement of Ms Cianci, the findings are then adopted. The Reasons for Decision then refers to the Notice to Show Cause as well as the audit and the Statement of Ms Cianci and adopts the findings. Likewise, the Internal Review, adopts the findings of the Reasons for Decision. Apart from the adoption of those findings, there is no consideration given in the Notice to Show Cause, the Reasons for Decision or the Internal Review or in the submissions of the Respondent in these proceedings to the substance of those findings or the weight that should be given to the evidence relied upon in the circumstances.
5. In any case, to determine the conduct that the Respondent relies upon to find a contravention of s 21 of the DPBA, one must consider the audit and the Statement of Ms Cianci.
6. The sections in the audit which are cited and adopted are [1.2], [1.3], [1.7] and [1.8]. In each of those sections, observations are made along with the auditor's findings and the action required.
7. The sections may be summarised as follows:

(1) Sections [1.2] and [1.3] pertain to "Apartments" with the former relating to "air handling ductwork" and the latter pertaining to "ventilation". It is observed at [1.2] that a PVC plumbing pipe has been used for toilet and kitchen exhaust air handling ductwork which did not accord with the declared mechanical design which required sheet metal. It is also observed at [1.3] that combining the kitchen exhaust and toilet exhaust was a failure to comply as was self-closing dampers. In each case, the relevant declared mechanical design is identified, and the audit includes photographs and the mechanical services plan.

(2) Sections [1.7] and [1.8] pertain to the "Basement" with the former relating to "ventilation systems" and the latter pertaining to "fire damper penetrations". With respect to [1.7], it indicates that the garbage exhaust and fire pump room ventilation systems are not installed as per the declared regulated design "record 14/03/2022" however, there is no explanation as to what that non-compliance is and no photographs or further explanation. Nor is there a copy in the report of the alleged regulated design. With respect to [1.8], the observation is made that there is work progressing without a regulated design for passive fire and indicating that the action required was that one should be lodged. A photograph is included of a duct penetration through the wall.

1. Based upon the explanations provided in the audit report for sections [1.2], [1.3] and [1.8], the photographs and the mechanical services plan, and in the context of the Applicant's qualified admission, I accept that this work was undertaken and varied from declared designs. I also accept that the work related to a "building element" as defined in section 6 of the DBPA as being part of the "mechanical services" which includes ventilation, air-conditioning and air distribution in the case of sections [1.2] and [1.3] and fire safety systems in the case of section [1.8].
2. With respect to section [1.7] of the audit, the only evidence cited is the opinion contained in the audit report which records that the work is inconsistent with something identified as "regulated design record 14/03/2022". The reasoning is not exposed as to why that opinion is held, what the inconsistency is and nor is there any evidence, photographic or otherwise, to support the conclusion. I am not satisfied based upon this opinion alone that the Applicant has contravened section 21 of the DBPA because of the work described in section [1.7] of the audit.
3. With respect to the Statement of Ms Cianci, the Respondent relied upon paragraphs [22] to [25]. In the cited section of the Statement, Ms Cianci states:

On 12 July 2023, I attended the Development for a further inspection with officers from Fair Trading. Present at the inspection was Mina Rofiel, Christopher Nicolson, Sally El Falak, Mohamed Moukahal, and Matt Sheary from Fair Trading in addition to Elias Nahas, Jason Nahas and Nick Nahas.

As a result of the inspections and general audit work, including desktop searches of the NSW Planning Portal, I am of the opinion that the following building work had occurred at the Development that varied from the regulated designs prepared for construction. I have outlined this work in the table below:

1. The "table below" contains 13 alleged instances where building work varied from the regulated design. The alleged instances are listed under the headings, "regulated designs", "what the design showed" and "what was built on site". The building elements included building enclosure, sprinkler system, fire systems and mechanical engineering, vertical transportation and drainage. For example, the first instance identifies "Building Enclosure - drawing Door Schedule 8699_CD 801 Issue 1" as the regulated design; "Aluminium framed sliding doors are 2400mm high" as what the design showed and "Aluminium framed sliding doors are 2880mm high" as what was built on site.
2. I am not persuaded as to these allegations given the paucity of the evidence relied upon by the Respondent. In this respect, Ms Cianci's opinion, which is a list of conclusions she has drawn is presented as a table without the reasoning process exposed nor the steps taken by Ms Cianci to ascertain each of the factual allegations in the column headed "what was built on site". In the absence of evidence as to the reasoning process and the steps taken to draw these conclusions, it is unclear whether this opinion that Ms Cianci holds is based upon things she saw, heard, tested, examined and the reasonableness of those steps or whether it is based on the experiences of the other attendees from Fair Trading noting that there were, according to Ms Cianci, six different people from Fair Trading attending the Site on 12 July 2023. In short, this evidence is insufficient for me to make the findings of fact urged by the Respondent.
3. The Applicant contended that the works did not alter the design or layout of the Development, was remorseful for the error and was dedicated to not repeating the conduct. While these factors may be relevant to a consideration of the severity of the conduct and the appropriateness of disciplinary action (which is considered below), they do not provide that "reasonable steps" were undertaken for the purposes of section 21 of the DBPA.
4. I therefore find that Tricon carried the work described at sections [1.2], [1.3] and [1.8] of the audit report which varied from the declared designs. Accordingly, I am satisfied that Tricon contravened section 21 of the DBPA.
5. The maximum penalty for contravention of section 21 of the DBPA is 3,000 penalty units (in the case of a body corporate) or 1,000 penalty units (in any other case).

Tricon Disciplinary Ground 1: Contravention of s 87 DBPA - Failure to comply with a direction

1. Section 87 of the DBPA states:

A person must not, without reasonable excuse, fail to comply with a direction of an authorised officer made in accordance with this Part.

1. The answers to the Section 77 Notice the subject of this allegation of contravention are extracted at paragraphs 105 to 112. While I accept that the Applicant took a literal approach in some cases (see the answer question 1(a)) and the Respondent may have desired answers to have more specificity, for example, references to specific days as opposed to months (see answer to question 1(d)(i)), I do not accept that the substance of the answers amounts to a failure to comply. It is not in dispute that in relation to item 1(q) which requested a copy of each regulated design identified in response to the questions, Tricon did not re-provide the records but that was because the records had already been lodged with Fair Trading and so the provision of those records had already occurred.
2. I do not accept the answers were a failure to comply pursuant to section 87 of the DBPA.

Tricon Disciplinary Ground 2: Contravention of section 307B of the Crimes Act 1900 (NSW): Making false and misleading statement

1. Section 307B of the Crimes Act 1900 (NSW) states:

(1) A person is guilty of an offence if--

(a) the person gives information to another person, and

(b) the person does so knowing that the information--

(i) is false or misleading, or

(ii) omits any matter or thing without which the information is misleading, and

(c) any of the following subparagraphs apply--

(i) the information is given to a public authority,

(ii) the information is given to a person who is exercising or performing any power, authority, duty or function under, or in connection with, a law of the State,

(iii) the information is given in compliance or purported compliance with a law of the State.

: Maximum penalty--Imprisonment for 2 years, or a fine of 200 penalty units, or both.

(2) Subsection (1) does not apply as a result of subsection (1) (b) (i) if the information is not false or misleading in a material particular.

(3) Subsection (1) does not apply as a result of subsection (1) (b) (ii) if the information did not omit any matter or thing without which the information is misleading in a material particular.

(4) Subsection (1) does not apply as a result of subsection (1) (c) (i) if, before the information was given by a person to the public authority, the public authority did not take reasonable steps to inform the person of the existence of the offence against subsection (1).

(5) Subsection (1) does not apply as a result of subsection (1) (c) (ii) if, before the information was given by a person (the "first person") to the person mentioned in that subparagraph (the "second person"), the second person did not take reasonable steps to inform the first person of the existence of the offence against subsection (1).

(6) The burden of establishing a matter referred to in subsection (2), (3), (4) or (5) lies on the accused person.

(7) For the purposes of subsections (4) and (5), it is sufficient if the following form of words is used "Giving false or misleading information is a serious offence".

1. A "person" for the purposes of the section includes a company or corporation.
2. The Alleged False or Misleading Information relied upon by the Applicant is in summary:

(1) In answer to question 1(d)(iv) which asked whether work was completed during the period in which the SWOs were in place, Tricon answered that it had not completed any work except that which was allowed as an exception to the SWOs.

(2) In answer to question 1(e)(ii) Mr Elias Nahas indicated that he had not made a request of the fire certifying authority to release the fire engineering certificate where the related works were non-compliant.

1. Consistent with my findings at paragraphs 137 to 150, I am not satisfied that Tricon breached the SWOs and, as such, I am not satisfied that Tricon provided false or misleading information to the Respondent when answering question 1(d)(iv). Further, even if I had held that the information was false or misleading, the evidence would not satisfy me that it was knowingly false or misleading for the reasons articulated at paragraph 148 and 149 above. This approach is also consistent with the Respondent's acceptance in its Reasons for Decision that there was confusion as to its requirements to have the SWOs withdrawn - a finding that sits uneasily with the Respondent's conclusion that there was a breach of section 307B of the Crimes Act given the need to establish that the giver of information knew it was false and misleading. The Notice and reasons for the decision state:

I accept that there may have been some confusion on behalf of Tricon in respect of the physical work that needed to be undertaken in order for SWO-1 [to be] revoked.

1. With respect to the answer to question 1(e)(ii), I find that the request of Innova to issue the fire engineering certificate was not made in circumstances which would have made the answer to that question false or misleading. This is because:

(1) When the request was made, Tricon did not believe that the works were non-compliant. Innova has inspected the development on 8 March 2023 and 21 April 2023 and Tricon took steps to ensure fire safety compliance pursuant to the issues that were identified by Innova. On 2 May 2023, Innova sent an email to Tricon which in part requested full payment before release of the certificate indicating that the condition precedent to release was payment. This evidence supports that the request for the release of the certificate was on the assumption that the works were compliant.

(2) Secondly, Tricon's request was that Innova "consider" releasing the certificate not a demand for release or the exertion of undue pressure. The request, framed in that matter, left the matter to be decided by Innova.

1. I therefore find that Tricon's answer to question 1(e)(ii) was not false and certainly not knowingly false.

Tricon Disciplinary Ground 4 and Ground 5: Contravention of section 6.3 EPAA: Improper conduct

1. Section 6.3 of the EPAA states:

(1) A person must not carry out any of the following work or activity without a certificate under this Part that is required by this Part for that work or activity--

(a) building work,

(b) subdivision work,

(c) the occupation or use of a building (including a change of use),

(d) the subdivision of land,

(e) any other activity to which this Part applies.

(2) A person must not, in carrying out any such work or activity, contravene a certificate under this Part that applies to the carrying out of the work or activity.

(3) A certificate under this Part is not required for the carrying out of exempt development.

(4) This section does not apply to a compliance certificate.

1. On 25 February 2021, CC1 was issued to Tricon which allowed for demolition, excavation and construction of basement up to the transfer deck only.
2. On 29 November 2021, CC2 was issued to Tricon which allowed for the approval for the external structure only.
3. The Respondent maintains that Tricon contravened section 6.3 of the EPAA by undertaking work above the basement on or before 7 August 2021 several months before the issue of CC2. The Respondent relies on Nearmap aerial photographs.
4. The Applicants deny this and give evidence that the ground floor slab was completed in June 2021 and the only other work undertaken prior to the issue of CC2 were those works required to prepare for the commencement of stage two works including the reinforcement of level 1. Rather, the stage two works commenced on 30 November 2021.
5. Dealing firstly with the Respondent's reliance on the Nearmap photographs as supporting the allegation that work was undertaken on or before 7 August 2021 that fell outside of ambit of CC1 as it was work above the basement. Having studied the photographs, and specifically the work that had been undertaken as at 7 August 2021, it is not evident to me that the work exceeded demolition, excavation and construction of basement up to the transfer deck only. In that respect, the photographs are taken from some distance above the site and it is difficult to ascertain with precision what has and has not occurred.
6. From what can be reasonably discerned, the photograph taken on 5 June 2021 appears to show progress of the ground floor slab however it is not clear whether this work had been completed in its entirety noting the Applicants' evidence is that the slab was completed in "June 2021" and so more work may have been undertaken in that month after the photograph was taken. Otherwise, the next photograph is noted as being dated 7 August 2021 and appears to show the completed construction of the basement including its roof and the transfer deck or at least, it is not clear to me that the photograph shows progress that exceeds that work. The two photographs taken dated 6 and 17 October 2021 seem to show no progress with the next photo taken on 1 February 2021 (and after CC2 was issued) shows that the Development had been significantly progressed.
7. Secondly, I do not treat the evidence of Tricon that it undertook work during stage one that included the reinforcement of level 1 in preparing for stage two as an admission of contravention. This is because it was part of stage one to prepare for stage two, for example, the "reinforcement of level 1" includes the building of the basement and the construction of the transfer deck (a transfer deck, by its very nature, not only being a reinforcement for stage two but a reinforcement for the entire structure). Tricon admitting that they readied the Development for stage two does not rise to an admission of contravention as each stage is inter-connected because of the nature of a development. There is otherwise no other evidence to support that Tricon contravened section 6.3 of the EPAA or that its officer or Mr Nahas is guilty of improper conduct because of such a contravention.

Nahas Disciplinary Grounds 1 and 3: Section 56(c) of the HBA and section 64(d) of the DBPA: Improper conduct and failure to comply

1. Consistent with the written submissions of the Respondent, the findings made as against Mr Nahas are based upon the contraventions committed by Tricon and the fact that Mr Nahas was the "nominated supervisor" for the build, a "registered building practitioner" and a holder of a contractor licence.
2. In respect of ground one, the Respondent relied upon section 56(c) of the HBA because of a contravention of section 53(1)(a) of the HBA. Section 53(1)(a) of the HBA states:

53. The holder of an endorsed contractor licence or a supervisor certificate who has control over the carrying out of residential building work or specialist work of any kind is guilty of improper conduct if--

(a) the requirements applicable to the work made by or under this Act or any other Act are not complied with, or

...

(2) The holder of an endorsed contractor licence or a supervisor certificate is to be presumed, in the absence of evidence to the contrary, to have control over the doing of all work for which the holder is a nominated supervisor.

(3) It is a sufficient defence to a complaint that a holder has been guilty of improper conduct under this section if the holder proves to the satisfaction of the Secretary that the holder used all due diligence to prevent the occurrence of the improper conduct.

The Secretary may take disciplinary action under section 62 against the holder of a contractor licence on any of the following grounds--

...

(c) that the holder is guilty of improper conduct,

...

1. I have found that Tricon did not comply with the requirements applicable to the work under the DBPA and specifically the work described below, and therefore it is presumed that Mr Nahas as the nominated supervisor is guilty of improper conduct:

(1) carried out building work in relation to air conditioning elements without first obtaining CIRDs and DCDs in contravention of section 19 of the DBPA; and

(2) Tricon carried the work described at sections [1.2], [1.3] and [1.8] of the audit report which varied from the declared designs in contravention of section 21 of the DBPA

1. The evidence relied upon by the Applicants goes to the fact that the works which were a contravention of sections 19 and 21 were an honest oversight and a product of Tricon's inexperience with the new DBP registration scheme. However, once it was made aware of the issue after the first inspection, it took immediate steps to relodge the correct documents and remedy the issues including undertaking steps to ensure Tricon understood its obligations. In respect of the contravention of s 21 of the DBPA, Tricon maintained that the differences in the designs were cosmetic but in any case, the true problem was not lodging the amended plans correctly which for the reasons given, has been remedied. For these reasons, the Applicants say that Mr Nahas has not engaged in improper conduct. With specific regard to Mr Nahas, the Applicants contended that:

(1) Such conduct was uncharacteristic of his unblemished history

(2) The conduct does not have significant objective gravity.

(3) Mr Nahas sincerely regrets the conduct.

1. However, this evidence fails to satisfy me of the defence in section 53(3) as it does not deal with specifically what Mr Nahas did to exercise all due diligence (as opposed to Tricon) and nor it is evidence of conduct to prevent the occurrence of the improper conduct as opposed to remedy it after it occurred. This evidence may be relevant to whether disciplinary action is required and what disciplinary action is appropriate (as discussed below) but in accordance with the presumption in section 53, I find that Mr Nahas is guilty of improper conduct.
2. The Respondent also relies upon, as a separate contravention, section 64(d) of the DBPA which states:

The Secretary may take disciplinary action against a registered practitioner on one or more of the following grounds -

...

(d) the practitioner has failed to comply with a statutory or other duty, or a contractual obligation, imposed on the practitioner by or in accordance with a law of this or another Australian jurisdiction with respect to the preparation of regulated designs or the carrying out of building work, professional engineering work or specialist work or work authorised to be carried out under a relevant authorisation or the provision of a compliance declaration

1. As I have found that Mr Nahas is guilty of improper conduct pursuant to section 53 of the HBA, it follows that the power to take disciplinary action pursuant to section 64(d) of the DBPA is enlivened as Mr Nahas has failed to comply with section 53 of the HBA with respect to the carrying out of building work. I do not accept, as contended by the Respondent however, that this enlivenment gives rise to a finding of a separate contravention as against Mr Nahas because it is reliant on the contravention under section 53 of the HBA.
2. I accept the Respondent's submission that by virtue of Tricon's contraventions of sections 19 and 21 of the DPBA, the discretion of the Respondent to take disciplinary action as against Tricon is enlivened. In this respect, section 64(b) of the DBPA states:

The Secretary may take disciplinary action against a registered practitioner on one or more of the following grounds -

...

(b) the practitioner has contravened this Act or a regulation made under this Act, whether or not the practitioner is prosecuted or convicted for the contravention

1. Section 66 of the DBPA specifies the disciplinary action that may be taken. That section states:

(1) The Secretary may, if satisfied that one or more of the grounds for taking disciplinary action against a registered practitioner has been established, do one or more of the following--

(a) determine to take no further action against the practitioner,

(b) caution or reprimand the practitioner,

(c) make a determination requiring the practitioner to pay to the Secretary, as a penalty, an amount not exceeding $220,000 (in the case of a body corporate) or $110,000 (in any other case) within a specified time,

(d) impose a condition on the registration of the practitioner, including a condition requiring the practitioner to undertake specified education or training relating to a particular type of work or business practice within a specified time,

(e) suspend or cancel the registration of the practitioner in accordance with Part 5,

(f) disqualify the practitioner, either temporarily or permanently, from being registered or being registered in a particular class.

(1A) If a registered practitioner is a body corporate and the Secretary is satisfied that a ground for taking disciplinary action against the practitioner has been established, the Secretary may take one or more of the following actions against a director of the body corporate--

(a) determine to take no further action against the director,

(b) caution or reprimand the director,

(c) require the director to undertake specified education or training relating to a particular type of work or business practice within a specified time,

(d) disqualify the director, either temporarily or permanently, from being registered or registered in a particular class.

(1B) The Secretary may suspend the registration of a body corporate during a period when a director of the body corporate is disqualified under subsection (1A)(d).

(1C) The Secretary may take disciplinary action under subsections (1A) and (1B) in addition to, or instead of, taking disciplinary action under subsection (1).

(1D) This Part applies to disciplinary action taken under subsection (1A) in the same way as it applies to disciplinary action taken under subsection (1) and references in this Part to registered practitioners extend to the directors of registered body corporates.

(1E) Sections 65 and 68 apply to disciplinary action taken under subsection (1B).

(2) In determining the disciplinary action to take, the Secretary must take into account other disciplinary action taken against the person under this Part.

(3) The Secretary is to provide a written statement of a decision made under this section to the practitioner as soon as is reasonably practicable after the decision is made.

(4) The statement of a decision must specify--

(a) the decision that has been made, and

(b) if relevant, the date or time on which the decision takes effect, and

(c) the grounds for the decision.

1. In Boyd trading as Kalana Homes v Commissioner for Fair Trading [2018] NSWCATOD 4, Senior Member Dinnen stated:

The Tribunal's approach in determining whether disciplinary action should be taken and, if so, what form it should take, considers that the object of sanctions under the legislation is to protect the consumers of home building services and not to punish contractors: see Lotus Constructions Pty Limited v Director -General, Department of Finance and Service, NSW Fair Trading [2013] NSWADT 260 and Pilipczyk & anor v Commissioner for Fair Trading, NSW Office of Fair Trading [2007] NSWADT 85. [Emphasis added]

1. In Ng & anor v Commissioner for Fair Trading, NSW Office of Fair Trading & anor [2007] NSWADT 259, Judicial Member Molony referred at [71] to [72] to the series of factors which might be relevant to the assessment of an appropriate penalty which are consistent with the decision of Trade Practices Commission v CSR Ltd (1991) ATPR 41-076:

71 In Director-General, Department of Fair Trading v. Cohen [2000] NSWFTT 3 (cited in Younan [2007] NSWADT 170 at [26]; and Harb [2007] NSWADT 175 at [60]) the Fair Trading Tribunal outlined a series of factors which might be relevant to the assessment of an appropriate penalty. They were:

- the nature, width and extent of the contraventions

- the loss or damage and prejudice in consequence of the contraventions

- the circumstances in which the contraventions took place

- whether the licensee has been found to have engaged in any similar conduct

- the presence of fraudulent or dishonest intent and deliberation on the part of the licensee

- the extent of carelessness or wilfulness of the conduct

- the efforts made to correct the situation and what measures have been taken by the licensee

- what consciousness the licensee (a) had (b) displayed, of its obligations under the relevant statute and to the owners

- the effect upon the licensee

- antecedents

- attitude, building history and future compliance

- the penalty range.

72 To that list I would add two factors which were outlined in a list of relevant factors, which a court might take into account in determining the amount of a civil penalty, that were proposed by the Australian Law Reform Commission in Principled Regulation: Federal Civil and Administrative Penalties in Australia (2002) ALRC 95 in recommendation 29-1: see Calcaro v Chief Commissioner of State Revenue [2004] NSWADT 158. These are:

- any gain made as a result of the contraventions

- the degree of cooperation with the authorities.

1. With respect to the quantification of any penalty, deterrence, both specific and general, is the principal if not the only objective of imposition of a civil penalty and consistent with the Respondent's statutory function: Australian Building and Construction Commissioner v Pattison (2022) 399 ALR 599; [2022] HCA 13 at [9]. In Trade Practices Commission v CSR Ltd (1991) ATPR 41-076; at 52, 152-53, French J listed several factors which informed the assessment of a penalty of appropriate deterrent value:

The assessment of a penalty of appropriate deterrent value will have regard to a number of factors which have been canvassed in the cases. These include the following:

1.The nature and extent of the contravening conduct.

2.The amount of loss or damage caused.

3.The circumstances in which the conduct took place.

4.The size of the contravening company.

5.The degree of power it has, as evidenced by its market share and ease of entry into the market.

6.The deliberateness of the contravention and the period over which it extended.

7.Whether the contravention arose out of the conduct of senior management or at a lower level.

8.Whether the company has a corporate culture conducive to compliance with the Act, as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention.

9.Whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention.

1. However, the High Court in Australian Building and Construction Commissioner v Pattison at [19] has warned against using such a list as a rigid catalogue of matters for attention as if it were a legal checklist and rather:

The Court's task remains to determine what is an "appropriate" penalty in the circumstances of a particular case

1. I accept these principles, however, in the context of determining the appropriate disciplinary action including penalty (if any) once satisfied that the discretion arises, it is necessary to characterise the conduct causing those contraventions as a first step. It is only by characterising the conduct that the appropriate disciplinary action can be framed to amend or eradicate the offending conduct and ensure that the action has its protective effect.
2. In certain circumstances where there are multiple contraventions, it may be appropriate to define the conduct as one course of conduct. Such an approach avoids double punishment. This does not involve fixing a single penalty if there are multiple contraventions; rather, there is an adjustment of the individual penalties to take into account the single course of conduct. This approach is one that is commonly applied albeit in different regulatory regimes: Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; (2010) 269 ALR 1; Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73; (2018) 262 FCR 243. The alternative (i.e. treat all instances of contravention as separate penalty amounts) may create a theoretical maximum penalty of particularly limited significance as it would be a product of there being a number of contraventions and inconsistent with the deterrence purpose: see Commonwealth Bank of Australia [2020] FCA 790 (at [65] and [137] per Beach J); Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; (2016) 340 ALR 25 (at 634 [156][157] per Jagot, Yates and Bromwich JJ).
3. In the current circumstances, I find that it is appropriate to treat the breaches of sections 19 and 21 of the DBPA as a single course of conduct due to the interrelationship between the legal and factual elements of the multiple contraventions. Specifically, the contraventions were a product of Tricon's failure to lodge documents (i.e. CIRDs, DCDs and variations to designs) using the online portal.
4. For the reasons that follow and having regard to all the relevant factors including a consideration of the Guidelines for Determining a Disciplinary Action Outcome issued by the Disciplinary Action unit, in my opinion, disciplinary action is warranted. However, in light of this being the first occasion giving rise to disciplinary action the most appropriate action is not a penalty but a caution and the imposition of education conditions.
5. In coming to this conclusion, I find that the severity of the conduct is of minor severity because:

(1) There is no evidence of any consumers being impacted by Tricon's behaviour nor causing detriment to a consumer or a claim on a compensation fund. At its highest there was a risk to the integrity of the industry system in that the registration of designs and then the obligation to abide by those designs is part of the process to ensure proper compliance and safety.

(2) With respect to culpability however, the evidence satisfies that the conduct was, at its highest, reckless and was due to Tricon's inexperience with the relatively new regime and the on-line portal and otherwise a failure to inform itself of such matters. The conduct was not deliberate and nor did Tricon implemented a course of dishonest conduct.

1. That may give rise to a finding of moderate severity and appropriate disciplinary action but in this case, there are mitigating circumstances which are extracted below many of which were also relied upon and referenced in the Reasons for Decision albeit for various of the alleged contraventions. Because of these mitigating circumstances, I consider the overall severity to be minor.

(1) The installation of refrigeration piping and drainage pipes for air conditioning in April 2022 and the replacement of refrigerant pipe insulation on 21 June 2022 was a product of an honest mistake because of the fact that as at this time, Tricon held a construction certificate for installation of air conditioning units and was not aware that it also required a CIRD.

(2) Tricon became aware of the need to lodge a CIRD for the air conditioning when DBPAT carried out their inspection in June 2022. Tricon then stopped works related to air conditioning until it had lodged a CIRD except for work that DBPAT directed Tricon to complete as part of the audit. This included replacing the refrigerant pipe insulation which was completed by the time of the 18 August 2022 inspection.

(3) Tricon otherwise engaged with the DBPAT in the drafting of the CIRDS and acted in response to their advice arising from the audit and engaged with the regulator at length over the course of the audit and disciplinary process which demonstrates an understanding and willingness to comply with the regulatory scheme

(4) Regarding the failure to lodge CIRDs or DCDs on the NSW Planning Portal in relation to CC3, Tricon attempted to lodge CIRDs and DCDs the subject of CC3 via the NSW Planning Portal on six occasions between 25 January 2022 and 30 June 2023 but was unable to do so because it was not familiar with the NSW Planning Portal system. Tricon had believed that it had done so and only became aware that they were not lodged as a consequence of the audit. Tricon then took steps to address the issue in relation to lodgement including completing a TAFE NSW course that was endorsed by the Building Commission as 'useful tools'.

(5) The works did not alter the design or layout of the Development, and Tricon was remorseful for the error and was dedicated to not repeating the conduct.

(6) Since June 2022, Tricon took the following steps to address the issues experienced with lodging documents on the portal:

(a) completed TAFE NSW courses outlined and endorsed by the Building Commissioner as useful tools;

(b) applied for the correct registration;

(c) applied for the correct portal login to lodge plans by authorised persons;

(d) sought advice from relevant authorities regarding lodging and uploading plans and variations to the portal;

(e) sought confirmation from DBPAT officers about lodgement having occurred successfully prior to commencing work; and

(f) Tricon also plans to engage a consultant to lodge or review lodgements on its behalf moving forward.

(7) There is no evidence that Tricon's conduct has resulted in any actual adverse financial, safety or health outcomes for consumers.

(8) Tricon's conduct occurred in the context of its director being affected by stress and anxiety which, as stated by the Respondent in the Reasons for Decision "can be understood in the context of the financial strain that the audit process would have caused".

(9) With respect to that financial strain, the Reasons for Decision states:

Tricon submits that dealing with the audit cost Tricon approximately $2,790,000 between 6 September 2022 and the present date. I take this into account in determining possible future recurrence of non-compliance. I am satisfied that the cost of such a quantum of money is likely to have sufficiently impacted Tricon and it is unlikely to repeat the compliance breaches knowing that such non-compliance may result in significant financial burden on the company again.

(10) Despite the financial strain being accepted in the Reasons for Decision, the Respondent took issue in these proceedings with the Affidavit of Mr Elias Nahas which sought to update the cost of the alleged financial loss. While the Respondent did not cross-examine Mr Elias Nahas, the Respondent urged the Tribunal to not accept such evidence and put no weight on the asserted losses. I find the Respondent's contention to place no weight on financial losses sits uneasily with the Respondent's simultaneously relying upon the reasoning in the Reasons for Decision and the Internal Review which accepts this factual allegation, albeit to a lesser sum because it was earlier in time. In any case, I accept that Tricon has experienced financial losses as a result of the audit which would deter it from adopting like conduct in the future. While I cannot discern the precise sum based on the evidence, I accept it is a significant quantum and that loss is a factor in dissuading Tricon to repeat the behaviour.

(11) Tricon does not have any adverse compliance history prior to these contraventions.

(12) I am not satisfied that the conduct is likely to reoccur or that the community would not have the confidence that it will not occur again because:

(a) Tricon was ultimately capable of having the SWOs revoked ensuring to the satisfaction of DBPAT that it was able to ensure that the Development was compliant.

(b) While the contraventions relate to multiple instances of work, they are limited in ambit and limited to the work described at sections [1.2], [1.3] and [1.8] of the audit report (as described above) and the installation of refrigeration piping and drainage pipes for air conditioning in April 2022 and the replacement of refrigerant pipe insulation on 21 June 2022. Given the size of the Development, they do not demonstrate a systematic approach by Tricon to disregard compliance obligations.

1. I do not consider there to be any factors that have an aggravating effect.
2. In this respect, I do not accept as urged by the Respondent, that it is appropriate to consider for the purposes of determining the disciplinary action that Mr Elias Nahas had attempted to lodge designs when he was not qualified to do so. This was raised as a contravention of clause 20 of the DBP Regulation but rejected by the Respondent. It was found in the Reasons for Decision and the Internal Review that the Respondent was not satisfied that Tricon was not fit and proper. The ground was not otherwise pursued in these proceedings and expressly disavowed. To rely upon those circumstances in defining the appropriate disciplinary action for the contraventions that were pursued where the allegation that Tricon was not fit and proper was conceded would effectively be framing the disciplinary action as if it was not conceded. That would be inappropriate. Rather, the disciplinary action needs to be framed in consideration of the findings of the contravention and the conduct that is being deterred and prevented in the future.
3. Nor do I accept the submission that because Mr Elias Nahas had enrolled in courses to fulfill the education requirements that were scheduled to take place after the hearing, that provides a basis to impose more severe disciplinary action. Even if I was to accept that it was procedurally fair for the Respondent to change its position in subsequent written submissions as described in paragraph 14, I do not accept this is a basis to impose more severe disciplinary action analogous with my reasoning in the preceding paragraph.
4. In defining the appropriate disciplinary action in those circumstances, I find that the conduct to be overcome in this case is that of a lack of experience and knowledge with respect to Tricon's compliance obligations with respect to the registration of designs and variations to those designs. Consistent with the protective aim of disciplinary action, I consider appropriate disciplinary action to be taken against Tricon because of its contraventions of sections 19 and 21 of the DBPA is a caution and education requirements consistent with the action taken by the Respondent under section 66(1)(d) of the DBPA
5. I do not accept that the disciplinary action otherwise attributed to section 66(1)(d) and relating to quality assurance systems and auditing, is justified or necessary to protect consumers given the minor severity of the conduct, the mitigating factors as listed above and my finding of the unlikelihood the Tricon would repeat the conduct. For example, in Boyd trading as Kalana Homes v Commissioner for Fair Trading [2018] NSWCATOD 46 is a decision relating to a builder's multiple breaches of statutory warranties contained in the HBA over multiple properties. Whie the contraventions in this matter relate to the DBPA, the matter is analogous in that it was found that further education was necessary. The disciplinary action taken therefore included, but was not limited to, imposing conditions related to further education but did not contain the onerous and extensive quality assurance and auditing requirements as made by the Respondent in this case. That is despite the contravention in that matter having a direct adverse effect on consumers. Despite giving the parties a subsequent opportunity to deal specifically with the appropriateness of the disciplinary action, such submissions did not identify an instance of disciplinary action in a like or analogous situation justifying such conditions. In any case, for the reasons given, it is not justified here.
6. With respect to the absence of a penalty, for the reasons given I do not accept that it is necessary to meet the aim of deterrence and consumer protection. Consistent with the findings in the Reasons for Decision, I am satisfied that the circumstances have sufficiently impacted Tricon and it is unlikely to repeat the compliance breaches. I am also of the view that a reprimand is too severe for this contravention. As observed in Commissioner for Fair Trading v Cruz [2009] NSWADTAP 51 at [35] to [37] and [50] when considering the nature of a reprimand can have negative public consequences and significant implications:

35 The English verb, to reprimand, is derived, it appears, from the French verb for to reprove (reprimer), which, in turn, would appear to be derived from the Latin verb, reprehendere (to reprove, to blame). The Macquarie Dictionary gives the following meanings to the word 'reprimand': 1, noun, A severe reproof, especially a formal one by a person in authority. 2, verb, to reprove severely, especially in a formal way.

36 The submissions refer to the principal meaning of 'reprimand' given by the Collins English Dictionary (2008 edition) at 469 ('reprimand is blame (someone) officially for a fault'), and the further meanings given for the words that make up the definition.

37 We accept that the natural or ordinary understanding of the word 'reprimand' is to accord blame to the recipient of the reprimand for a failing. It stands as a type of rebuke for a failing. We also accept, as the Tribunal explained in its reasons, that the issuance of a reprimand can have negative public consequences for a person working in the home building industry. There is a public register on which reprimands are recorded.

...

50 As to this case, plainly, and as explained by the Tribunal below, the recording on a public register of a reprimand may carry significant implications for the holder of a licence or other authority operating in the residential building sector.

1. I do not accept that these public consequences and significant implications are justified in this case.
2. Even if I was of the view that a penalty was justified, I was not taken to sufficient evidence to quantify such a penalty such as Tricon's turnover or size. While the Affidavit of Mr Elias Nahas refers to an expected profit from the Development of $420,000 but actual profit was $150,000 (exclusive of GST) and the Respondents refer to the cost of the Development being in the order of $6,050,000 and reference the penalty amount as a percentage of the maximum, this evidence does not assist with the question of what quantum of penalty is appropriate to deter the conduct?. Without such information, I would be unable to satisfy myself that the quantum of the penalty meets its purpose of deterrence and consumer protection while not being so high that it could cause Tricon to enter insolvency and act as a punishment.

(1) If, after compliance with this Division, the Secretary is satisfied that any ground on which disciplinary action may be taken against the holder of an authority has been established in relation to the holder, the Secretary may do any one or more of the following--

(a) determine to take no further action against the holder,

(b) caution or reprimand the holder,

(c) make a determination requiring the holder to pay to the Secretary, as a penalty, an amount not exceeding $11,000 (in the case of an individual) or $50,000 (in the case of a corporation) within a specified time,

(d) vary the authority held by the holder, by imposing a condition on the authority, including a condition requiring the holder to undertake a course of training relating to a particular type of work or business practice within a specified time,

(e) suspend the authority for a period not exceeding its unexpired term,

(f) cancel the authority,

(g) disqualify the holder, either temporarily or permanently, from being any one or more of the following--

(i) the holder of any authority, or any specified kind of authority,

(ii) a member of a partnership, or an officer of a corporation that is a member of a partnership, that is the holder of an authority,

(iii) an officer of a corporation that is the holder of an authority.

(2) If the holder of the authority is a partnership or corporation, the Secretary may take a disciplinary action specified in subsection (1) against the following individuals--

(a) a member of the partnership,

(b) an officer of a corporation that is a member of the partnership,

(c) an officer of the corporation.

(3) The Secretary may take disciplinary action under subsection (2) in addition to, or instead of, taking disciplinary action under subsection (1).

(4) This Division applies to disciplinary action taken under subsection (2) in the same way as it applies to disciplinary action taken under subsection (1) and references in this Division to the holder of an authority extend to the individuals referred to in subsection (2).

1. Having regard to all the relevant factors, in my opinion, the appropriate disciplinary action is to caution Mr Nahas.
2. First, as discussed above, I have found that the contraventions of Tricon are of minor severity. It is only because of these contraventions that Mr Nahas has been found to contravene section 53(1)(a) of the HBA because of the presumption of improper conduct as the nominated supervisor for Tricon in respect of the Development. However, despite this presumption, there is no requirement for the Tribunal to take the same disciplinary action in relation to directors and supervisors: Champion Homes Sales Pty Ltd v Commissioner for Fair Trading [2017] NSWCATOD 110. The appropriate disciplinary action must be determined in the circumstances.
3. Secondly, apart from this presumption, there is a scarcity of evidence of specific conduct attributable to Mr Nahas with the evidence relied upon by the Respondent being directed to Mr Elias Nahas. In the present case the contravention stems back, primarily, to Mr Elias Nahas who was tasked with lodging the declared designs.
4. In addition to the mitigating factors as already identified in respect to Tricon, I also take into consideration with specific regard to Mr Nahas that the conduct was uncharacteristic of his unblemished history, does not have significant objective gravity and he is regretful.
5. In all the circumstances, in my view, disciplinary action is warranted in relation to Tricon of the kind described above however, a caution is sufficient in respect to Mr Nahas pursuant to section 62(1)(b) of the HBA.

(1) The Respondent's decisions are varied to include the Tribunal's reasons for decision, and the following findings:

(a) Tricon Builders Pty Ltd (Tricon) is guilty of improper conduct under section 64(b) of the Design and Building Practitioners Act 2020 (NSW) (DBPA) as a result of its breach of sections 19 and 21 of the DBPA by:

(i) in respect of the breach of section 19 of the DBPA, in installing refrigeration piping and drainage pipes for air conditioning in April 2022 and the replacement of refrigerant pipe insulation on 21 June 2022 without first obtaining CIRDs and DCDs; and

(ii) in respect of the breach of section 21 of the DBPA, in carrying out work the following work which varied from the declared designs as described at paragraph 166 of the Decision limited to the work attributed to sections [1.2], [1.3] and [1.8] of the audit report therein described.

(2) Pursuant to section 66(1)(b) of the DBPA, caution Tricon.

(3) Pursuant to section 66(1)(d) of the DBPA, the following condition is imposed on Tricon's registration for a period of one year from the date of imposition of this condition:

(a) Each current and future director of Tricon must complete and pass within one year of the imposition of this condition or within one year of their appointment (whichever is later):

(i) The UTS short course Advanced Building Regulation (or a successor course or equivalent course offered by the same institution or equivalent course offered by another institution as agreed by the Respondent in writing); and

(ii) The SAI Global course Foundation and Implementing a Quality Management System ISO 9001:2015 or a successor course or equivalent course offered by the same institution or equivalent course offered by another institution as agreed by the Respondent in writing.

(4) Mr Jason Nahas is guilty of improper conduct under section 56(c) of the Home Building Act 1989 (NSW) (HBA) because of a contravention of section 53(1)(a) of the HBA.

(5) Pursuant to section 62(1)(b) of the HBA, caution Mr Jason Nahas.

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.