Trist v Commissioner for Fair Trading, Office of Finance and Services [2016] NSWCATOD 131 | Case summary

Trist v Commissioner for Fair Trading, Office of Finance and Services [2016] NSWCATOD 131 | Case summary | Zoe

[5]

Legislative Scheme

Section 20(2) of the Home Building Act 1989 (the Act) provides that the regulations may fix or provide for the Respondent to determine standards or other requirements that must be met before any contractor licence is issued or before a contractor licence of a particular kind is issued.
Section 20 (3) (a) of the Act provides that the Secretary must refuse an application for a contractor licence if the Secretary is not satisfied that any such requirement would be met were the contractor licence to be issued, or
Section 20(5) of the Act provides that a decision of the Respondent relating to the determining of qualifications or other requirements under sub-section (2) cannot be reviewed by the Tribunal in an application for review made under this or any other Act. The effect of this is that the Tribunal must apply the terms of the relevant Instrument.
Section 25 of the Act provides that the Secretary must refuse an application for a supervisor or tradesperson certificate if: (a) the Secretary is not satisfied that the Applicant is a fit and proper person to hold such a certificate, or (a1) the Secretary is not satisfied as to the matters of which the Secretary is required to be satisfied by sections 33B and 33D,
Section 33C sets out additional requirements for obtaining contractor licences (1) A contractor licence must not be issued unless the Secretary is satisfied that: (a) the Applicant has, or proposes to have, such numbers of nominated supervisors for the contractor licence as the Secretary considers are needed to ensure that all work for which the contractor licence is required will be done or supervised by qualified individuals, and (b) the Applicant, if also applying for an endorsement of the contractor licence to show that it is the equivalent of a supervisor certificate: (i) satisfies the requirements of section 33D for the issue of a supervisor certificate to the Applicant, and (ii) is not disqualified from holding a supervisor certificate or a supervisor certificate of a particular kind, and (iii) is not the holder of a supervisor certificate that is suspended.
Section 33D sets out additional requirements for obtaining supervisor and tradesperson certificates (1) A supervisor or tradesperson certificate must not be issued unless the Secretary is satisfied that the Applicant: (a) has such qualifications or has passed such examinations or practical tests, or both, as the Secretary determines to be necessary to enable the Applicant to do, or to supervise, the work for which the certificate is required, and (b) has had experience of such a kind and for such a period as the Secretary considers would enable the Applicant to do, or to supervise, the work for which the certificate is required, and (c) is capable of doing or supervising work for which the certificate is required.
The current standards and other requirements determined by the Director- General in relation to the qualifications, examinations and experience required for an endorsed licence or supervisor certificate to do or to supervise building work under section 33D are set out in an Instrument effective 22nd April 2016. This postdates the Instrument applying at the time of the Internal Review decision made about Mr Trist. That earlier Instrument was dated 5 January 2015. There is no material difference between the 2 Instruments for the purpose of this matter.
The definition of experience set out in the Instrument which commenced on 5 January 2015 (on foot at the time of Mr Trist's application) is as follows: "Applicants must show at least 2 years relevant industry experience in a wide range of building construction work where the majority of the experience was obtained within 10 years of the date on which the application is made. "Experience" means experience gained by the Applicant as: a) an employee of, or b) a holder of a supervisor certificate and as a nominated supervisor for the contractor licence held by, or c) a holder of an endorsed contractor licence contracted to, or d) a holder of a supervisor certificate in the capacity of a nominated supervisor for a contractor licence held by an individual, partnership or corporation contracted to, the holder of a contractor licence authorising the holder to do the class of residential building work in which the experience was gained ("the Work"), where the Applicant, during the relevant period, was: supervised and directed in the doing of the Work by the holder of an endorsed contractor licence or supervisor certificate authorising its holder to supervise the Work, and remunerated with money in accordance with law for the Work which the Applicant carried out.

[6]

The Reasons for the Respondent's Internal review decision 21 March 2016

The internal review decision affirmed the decision that Mr Trist did not have the necessary experience.
The Reviewer stated that the referee's statements from Anthony Millar, Craig Player and Philip Merrick were not acceptable. Mr Millar referred to maintenance, refurbishment and minor renovation work and Mr Player's and Mr Merrick's references were for work carried out on commercial premises.
The Reviewer also noted that Mr Trist works as a senior maintenance officer with the Sydney Harbour Federation Trust and that any work carried out does not require council approval, or home warranty insurance coverage. In addition the work was predominantly maintenance work, with no major construction projects, certainly no new house builds or extensive additions. This all indicated to the reviewer that the experience did not meet the current requirement of a wide range of residential construction work.
The Reviewer also noted that the Instrument excluded commercial or industrial building work as acceptable building experience. The experience claimed by Mr Trist in the renovation and fit out of commercial premises could not be considered relevant industry experience in a wide range of building construction work. Further Mr Trist was the owner of the premises and as such would not be a subcontractor of the builder. Rather the builder would have been working for Mr Trist.
The Reviewer referred to Mr Trist's claim that the three years of experience accepted by the Department in 2005 should now be seen as acceptable experience. The Reviewer noted that the experience requirements had altered many times over the past 10 years. While Mr Trist had been active in the building industry for 35 years, his experience had not been in construction of a dwelling, or even major renovations or additions.
The Reviewer stated that Mr Trist's work as a plumber and more recently as a senior maintenance officer with the Trust had been working with a majority of projects which had been for two or three months only. This confirmed to the Reviewer that Mr Trist did not have the relevant experience of being involved in the construction process from beginning to end. Mr Trist had not been involved in a residential project that would give him the experience or understanding of the construction of a dwelling from site set out to final handover to the client.

[18]

Form at p73, s 58 docs

Building site 1 - 5 St Barbara's Ave Manly, North Head from 21 October 2015 to 3 December 2015 - 43 days. Additions/Alterations to an existing dwelling Internal External Renovations. Mr Trist's roles and responsibilities at the site were leading hand, co-ordinating trades, replace weather boards, floor, gable end replacement, brickwork repairs/repoint, plumbing, gyprock, concrete, tile, and glaze.

In his letter of 7 December 2015 Mr Millar stated that he had known Mr Trist in a professional capacity for a little over two years at the Sydney Harbour Federation Trust. Mr Millar stated that he had supervised Mr Trist in a wide range of works, he has renovated and altered many of the Harbour Trust houses. He can administer the building construction knowledge he has learnt and take a project from concept to completion with his impeccable knowledge of the construction process, he can interpret plans and prepare budgets, write the scope of works, prepare and evaluate tenders, select and prepare the necessary contracts, obtain quotes, create a construction program, ensure compliances with WH and S and risk assessments, apply codes, standards and the BCA. Charles can manage (a) project on a building site, its works and its contractors, he has the ability to apply construction principles and converse with authorities, engineers, architects, clients and Stakeholders.
Mr Millar set out a brief outline of some of the on-site building construction works where he had supervised Mr Trist. "His site set out in competency (sic) use of lasers and automatic levels which allows him to correctly survey site, excavate, form, tie steel and place concrete. Structural works consist of underpinning masonry walls, as well as needling, for placement of structural steel to form openings for the installation of new windows and doors with all sundry items. Replace/repair bearers and joists and various types of flooring, renew barge and fascia boards, install external cladding, repair timber and steel framed roofs, replace hips, ridges, gable ends and valleys, install kitchens, vanities and various cabinetry. Renew bathrooms including the floor, ceiling and wall linings all types, all types of plasterboard and cornices fixed to altered or new framework. Set out and supervise all trades related to execution of works to be carried out, for example; all related brickwork and core filled blockwork. Rectification of rising damp, subfloor ventilation and all types of flashings and DPC. Installation of subsoil and stormwater drainage, gutters and downpipes, or plumbing….I feel confident in his abilities and experience that I may strongly endorse Charles for a type C builders licence."
In his evidence Mr Millar stated that he was senior maintenance supervisor with the Harbour Sydney Harbour Federation Trust. He has held a current builders licence for about 16 years. He said that all the work set out in his reference statements had been residential building projects. Mr Trist had been required to supervise a large range of trades, broader than those set out in the "information for Applicants" on the Respondent's website. Mr Trist's role had been to coordinate all of the trades. Structural work had been required such as walls being removed, laundries and LVLs inserted. Excavation had been required, as well as brick laying and steel placement. They had been required to remove sections of reinforced concrete slabs. This had also included a plumbing role and reinforcing rods. Some of the jobs had been extensive renovations. The projects were not primarily maintenance. It was general building work. The work at numbers 1 and 3 St Barbara's were worth about $700,000. The projects generally went for 3 weeks to 3 months. Mr Trist's role was as a maintenance officer but this title did not mean that the work undertaken was maintenance. "Maintenance" was merely a title - not a description of the work.
Mr Millar agreed that the work set out in his statements added up to 2 years and 14 days. He stated that since his statements ending in December 2015 that he had undertaken two more renovations at Scenic Drive Manly with Mr Trist. At 5 Scenic Drive Manly he had supervised Mr Trist 3 to 4 days a week. He said that Mr Trist does more of the renovations and alterations of Trust houses than he himself did. Mr Millar agreed that Mr Trist had not been required to construct new single dwellings. The jobs had not required development applications or the obtaining of occupation certificates. Mr Trist had been responsible for the procurement activities.

[19]

The Applicant's submissions

Mr Trist submitted that he had gained experience and supervision in a wide range of building work that would satisfy the requirements of the Instrument. His experience fell under the definition of "general building work". It was not a requirement that he should have constructed a house from start to finish. He referred to the matter of Tange vs New South Wales Fair Trading [2013] NSWADT 201.
Further it was not a requirement that residential building work in which the experience is undertaken is subject to a development application - see Shoobridge v Commissioner of Fair Trading [2015] NSWCATOD 42 at 53.
It was not a requirement that the applicant has experienced in all aspects of building work, provided the experience is sufficiently wide - see Sollazzo v Commissioner of Fair Trading [2015] NSWCATOD 20.
There was no basis on which to reject his work experience undertaken for the Sydney Harbour Federation Trust. The applicant referred to Shoobridge v Commissioner of Fair Trading [2015] NSWCATOD 42 at 53 where Senior Member Moloney accepted that experience gained by the applicant on a hospital site and in the renovation of police houses at Broken Hill and the restoration of a house in Rockdale was valid experience.
The Applicant submitted that the work that he had undertaken to gain his experience was work which falls under the definition of "residential building work" in the Act, which states that residential building work includes alterations or additions, repairing, renovation, decoration or protective treatment of a dwelling. He had worked on dwellings under the supervision of Mr Millar for the preceding two years. The work was major renovation and refurbishing work. The majority of projects were undertaken over a period of 2 to 3 months with budgets ranging from $30,000-$700,000. This work fell within the category of residential building work for the purposes of experience.
Mr Trist submitted that he had experience in supervising a wide range of trades. These were clearly outlined in his referee statements. This included work from planning through to completion and included supervising a wide range of trade contractors in the undertaking of residential building work.
The applicant referred to the matter of Sollazzo, Sollazzo v Commissioner of Fair Trading [2015] NSWCATOD 20, where the senior licensing officer Mr Degenhardt from the licensing branch of the home building service of the Department had said in his evidence that in order to obtain the licence, an applicant must also have had experience in: "structural aspects of construction such as formwork, brickwork and a full range of carpentry. While not every residence will require those skills, the licence permits the holder to undertake the full work of activities."
In that matter Senior Member Mrs Isenberg stated: "In short the experience must include a broad range of the construction and finishing trades."
The Applicant distinguished his circumstances from the matter of Mr Locking where Mr Locking had only undertaken carpentry and joinery. In this matter, see Locking v Department of Finance and Services [2013] NSW ADT 239, the Deputy President set out criteria for a building contractor's skills: "A building contractor has the overall responsibility for a site and must be able to supervise all of the trades required to complete any kind of dwelling. Additionally a builder must be able to determine that all trades have complied with all standards and requirements."
Deputy President Hennessy listed such necessary trades as "flooring, bricklaying, stone masonry, wet plastering, painting, decorating, general concreting and tiling, demolishing, fencing, glazing and waterproofing." …….
Deputy President Hennessy also stated that "a building contractor is also able to contract with the public, and therefore must be able to negotiate a contract, quote for a project and coordinate the trades to be able to complete the project on time and within budget. He or she must also be able to negotiate the jobs with Council and private certifiers to ensure that work is passed when appropriate."
Mr Trist submitted that he had demonstrated that he is able to undertake all of the roles identified in these criteria.
Mr Trist also referred to the Home Building Regulation 2014, regulations 13 and 14 which list categories of residential building work and categories of specialist work. He submitted that he met the majority of the trade categories and specialist work in both regulation 13 and 14.
Further in order to gain the role of "senior maintenance officer" Mr Trist had been required to demonstrate he held the skills also applicable to a builder's experience referred to in the position description. Mr Trist submitted that the role of senior maintenance officer included the majority of the experience requirements for a general building licence.
Mr Trist referred to the Respondent's claim that the Instrument excludes commercial or industrial building work as acceptable building experience. Mr Trist submitted that work undertaken on a commercial site can be valid experience and referred to the findings of Senior Member Molony in the matter of Shoobridge. Senior Member Molony had accepted that experience gained by the applicant on a hospital site (commercial construction), in the renovation of police houses of Broken Hill and the restoration of a house in Rockdale was valid experience. Mr Trist also noted that the Respondent had, in its own criteria, not ruled out considering experience other than residential building experience and provides the option for applicants to give details of this experience.
The Applicant submitted that the Respondent had previously found that he had 35 months relevant experience in his application lodged in November 2004 with the Respondent. The applicant submitted that this experience with Mr Philip Merrick and Mr Christopher Boniface should be taken into account.
The Applicant submitted that the Home Building Act 1989 is a consumer protection act; that skill knowledge and ability are the significant factors and that the Applicant had demonstrated he has over 35 years' experience in residential building work. He has no blemishes on his licence record. For over two years he had undertaken the role of builder for the Trust. His position description for his role as senior maintenance officer also described the role of a builder. He has experience in a wide range of residential building work. The evidence shows that he has the required skill, knowledge and ability to undertake the work as a builder.

[23]

Respondent's analysis of reference from Craig Stephen Player

The Respondent noted that Mr Player holds a contractor licence in the category of general building work although the Player Group Holdings, by which he was employed, does not hold a contractor licence under the Home Building Act 1989. Mr Player's referee statement of 1 September 2013 certified that Mr Trist had worked as a subcontractor at 1433 Botany Road Botany from June 2006 to November 2006. The work had been a third storey addition to a building consisting of new concrete slabs and third storey brickwork and a new timber roof and metal roofing.
The Respondent submitted that Mr Player had told a staff member of the Respondent on 1 July 2016 that the work was carried out under an owner/ builder permit which had been taken out by Mr Trist. Mr Player carried out some of the work and left his carpenters at the site for Mr Trist to supervise them. No money had changed hands as they had practised the barter system. Mr Trist had done some plumbing work at Mr Player's house and in exchange Mr Player did some work at the Applicant's Botany site. Mr Trist had not been remunerated with money contrary to the requirement of the Instrument.
The Respondent submitted that the work verified by Mr Player did not satisfy the experience requirements prescribed by the Instrument because: 1. Mr Trist was not contracted to Mr Player to carry out the work described in the residential building experience form; 2. Mr Trist had not been financially remunerated for the work in accordance with the law; 3. as the holder of the owner builder permit, Mr Trist not Mr Player had been in control at the building site; Mr Trist as the holder of the owner builder permit had supervised the trades who were left by Mr Player on site; and 4. Mr Player had not supervised or directed the Applicant in the doing of the work.
Accordingly the Respondent submitted that Mr Trist was not able to claim the period he had worked at the 1433 Botany Road Botany site as the holder, or on behalf of the holder, Mrs Trist, of an owner builder permit.

[26]

The Respondent's further submissions

The Respondent submitted that the Applicant's statement about his experience before the Tribunal, should be given little weight as he could not verify his own experience. The Respondent also noted that the scope of works in his employment for the Sydney Harbour Federation Trust which had been attached to the Applicant's statement had been prepared for the purposes of the proceedings before the Tribunal, rather than for the works themselves and that the document was of no value in assessing Mr Trist's experience.
The Respondent noted that the Tribunal had specifically in more recent times stated that owner builder experience could not be considered as relevant experience. The Respondent referred to the matters of Thukral v Commissioner for Fair Trading [2006] NSWADT 356 and Kocoski v Department of Services, Technology and Administration [2011] NSW ADT 135.
The Respondent also submitted that the circumstances of Mr Trist's case were different from the circumstances taken into account in the matter of Shoobridge - Shoobridge v Commissioner for Fair Trading [2015] NSWCATOD 42. In the matter of Shoobridge, the Tribunal had found that even though the work was done under an owner builder permit, that the Applicant Mr Shoobridge had been engaged as a project manager by his referee Mr Brookes and that his work for four months was relevant industry experience while working on that site. This was not such a case, as Mr Trist, the owner builder on behalf of himself and his wife, had engaged Philip Merrick and Craig Player to carry out the works. Further he had not been financially remunerated as contemplated by the Instrument.
The Respondent referred to the Applicant's valuations of the work at the Sydney Harbour Federation Trust as mere, uncorroborated assertion. The Applicant had stated that the work involved a significant number of various trades. However the involvement of various trades is neither descriptive of the extent of the work undertaken nor determinative of the breadth of experience. In this case, the trades had been involved within the context of the work which the Applicant undertakes as a Senior Maintenance Officer of the Trust "building and site infrastructure maintenance, coordinating the trades, recurring maintenance contracts and undertaking general building and services maintenance as required". The Respondent submitted that the Applicant's work in the Trust is limited in scope. Although maintenance, refurbishment and renovation of dwellings forms part of the definition of "residential building work" they do not of themselves constitute the required "wide range of building construction work."
The Respondent also referred to the matter of Ozcelik v Commissioner for Fair Trading [2014] NSWCATOD 100 where the Tribunal had found that Mr Ozcelik could only lawfully do carpentry work under his employment and other experience could not be counted. By implication the Tribunal understands that the Respondent contends that Mr Trist could only lawfully do plumbing work for which he holds a licence in terms of the relevant Instrument and could not be supervising others on site.
The Respondent submitted that, based on the available material in the proceedings, the Applicant's work experience with the Trust was limited in scope. Accordingly that experience, standing alone does not constitute a "wide range of building construction work."

[30]

The Respondent's rejection of experience with Mr Merrick

The Respondent rejected Mr Trist's claimed experience of 13 months with Mr Merrick on the basis that the work was commercial work and therefore could not be counted for the purposes of residential building. Further the work had been conducted more than 10 years prior to his application for a contractor licence and the information had been provided on an old referee's statement form.
The Tribunal respectfully disagrees with the Respondent's interpretation of the requirement in relation to the recency of experience. The wording of the Instrument is that "the majority of the experience has been obtained in the 10 years prior to the lodging of the application." The Tribunal considers this means that the majority of Mr Trist's experience must have been obtained in the 10 years prior to the lodging of his application in October 2015. Theoretically 51% of his experience needed to have been obtained in the period between October 2005 and October 2015. The complement of this is that 49% of Mr Trist's claimed experience obtained prior to October 2005 could be considered by the Respondent and the Tribunal.
However the Tribunal accepts the Respondent's submission that because the nature of the work at the Botany Road, Botany sites working with Mr Merrick was renovating and fitting out a restaurant and takeaway food bar, it was commercial and is excluded from consideration as "residential building work experience."
The Tribunal notes that the Respondent previously recognised Mr Trist as having 35 months of experience in relation to a previous application for a building contractor's licence. The detail of this experience was not put before the Tribunal. In these circumstances the Tribunal has not taken this "experience" into account. It is the Tribunal's view that experience obtained prior to 10 years before the submission of an application, can be taken into account as set out in the Instrument, although the majority of the experience must have been obtained in the immediately previous 10 years.

[34]

Analysis of Experience under supervision of Mr Millar at Sydney Harbour Trust

The Tribunal has set out in detail above the contents of the Referee statement and attachments from Mr Millar, his letter verifying Mr Trist's experience and skill and his evidence to the Tribunal. He is a licensed builder of 16 years standing. Mr Millar appeared to be a witness of credit. He was unshaken under cross examination about his view that Mr Trist demonstrated in his role with the Sydney Harbour Federation Trust "experience in a wide range of building construction work".
The Respondent did not contest that Mr Millar had supervised Mr Trist for a period of 24 months at least. The Tribunal is satisfied that Mr Millar supervised Mr Trist for a period in excess of 24 months.
Mr Millar rejected the Respondent's contention that the role was just a maintenance role, by referring to the required skills set out in the relevant job description.
The Respondent contended that Mr Trist could not be said to have experience in a wide range of construction work. He had not been responsible for the building of a house from start to finish. In the matter of Tange v NSW Fair Trading [2013] NSWADT 201 at 57 Judicial Member Montgomery found that: "It is not in dispute that the Applicant has not constructed a house from start to finish. However, in my view that is not conclusive of the issue. As noted, the Act is a consumer protection Act. Skill, knowledge and ability are the significant factors."
The New South Wales Fair Trading website, downloaded on 21 April 2016, set out the contemporary Instrument and text in relation to "Building" as follows. Any work that is residential building work under the Home Building Act 1989 which involves construction of a dwelling, or alterations or additions to a dwelling. It also includes repairing, renovation, decorating or replying protective treatment to a dwelling.
The Tribunal does not consider it is necessary for Mr Trist to have constructed a house from start to finish to demonstrate experience in a wide range of building construction work. Rather his role as a builder requires him to have the skills to plan and then manage a construction project from start to finish.
The Respondent also contended that although Mr Millar's statements nominate Mr Trist as having co-ordinated a number of trades, the work was limited in scope, given the limited monetary value of and the time spent at each job.
The Tribunal accepts Mr Millar's evidence that the value of the projects ranged from $35,000 to $700,000. The Tribunal does not consider that there is a specific value of work which demonstrates experience in a wide range of building construction work.
The Tribunal returns to Deputy President Hennessy's analysis of the experience requirements for licensing of a building contractor in the matter of Locking v Department of Finance and Services [2013] NSWADT 239 at 18 -19, "A building contractor has the overall responsibility for a site and must be able to supervise all of the trades required to complete any type of dwelling. Additionally a builder must be able to determine that all trades have complied with all standards and requirements. …….There are many gaps in Mr Locking's trade supervisory experience and therefore his understanding of certain trades. Those trades include flooring, bricklaying, stonemasonry, wet plastering, painting, decorating, general concreting, tiling, demolishing, fencing, glazing and waterproofing. 19. A building contractor is also able to contract with the public, and must therefore be able to negotiate a contract, quote for a project and co-ordinate the trades to be able to complete the project on time and within budget. He or she must also be able to negotiate and discuss the jobs with council and private certifiers to ensure that the work is passed fit when appropriate."
In the light of this analysis, this Tribunal accepts Mr Millar's evidence about the scope of projects undertaken by Mr Trist and the breadth of trades he was required to oversee.
Mr Millar referred to Mr Trist's capacity in initiating a project on site: "His site set out in competency (sic) use of lasers and automatic levels which allows him to correctly survey site, excavate, form, tie steel and place concrete. Structural works consist of underpinning masonry walls, as well as needling, for placement of structural steel…."
Mr Millar's evidence also referred to Mr Trist's experience in construction fundamentals. This included: "Structural work had been required such as walls being removed, laundries and LVLs inserted. Excavation had been required, as well as brick laying and steel placement. They had been required to remove sections of reinforced concrete slabs. This had also included a plumbing role and reinforcing rods. Some of the jobs had been extensive renovations. The projects were not primarily maintenance. It was general building work."
The Tribunal considers that this is evidence of Mr Trist's capacity to prepare the fundamental elements of onsite work, which would be expected of a builder being in control of a site. Further the Tribunal is satisfied that this is evidence of Mr Trist's capacity to manage essential building processes.
The Tribunal also refers to the range of trades and functions involved in Mr Trist's work undertaken at the Trust as set out by Mr Millar.
The types of activities that Mr Millar refers to include removal of load bearing walls, lintel and brickwork replacement, water proofing, gyprock replacement glazing bricklaying/repointing, roof repairs, door and window replacements concreting, tile laying, plumbing, electrical, BCA compliances, kitchen replacement and flooring. The Tribunal is satisfied that these constitute a wide range of trades, overseen as leading hand by Mr Trist.
Mr Millar has also set out that Mr Trist's specific role was as leading hand. The Tribunal understands this to mean he was the most experienced person on the job who supervised others, subject to the supervision of the foreperson or supervisor, which in this instance was Mr Millar. The Tribunal is satisfied from Mr Millar's evidence that Mr Trist fulfilled the role of coordination and supervision of various trades on-site.
Mr Millar and Mr Trist also gave evidence of Mr Trist as having participated in the planning of projects and allocation of budget. Mr Trist presented a project plan to the Tribunal as evidence of his capacity to do so. The Respondent contended that the plan had been prepared only for these proceedings. Even if this is so, the Tribunal is satisfied that Mr Trist has demonstrated the capacity to do this in his obtaining experience with the Trust to the satisfaction of his supervisor, Mr Millar.
The Respondent also contended that Mr Trist had not been required to obtain Development Application Approval or occupation certificates for his work at the Trust and that this contributed to him not having experience in a wide range of building construction work.
In the matter of Shoobridge at 53, Senior Member Mr Molony stated: The Respondent also submitted that work done by Mr Shoobridge on a site which did not require the issue of DA, such as the renovations and repairs of the Broken Hill Police houses, should not be regarded as relevant industry experience. As I understood it, the thesis behind this submission was that work that did not require a DA did not provide the type of experience necessary for a licensed contractor. The Respondent did not lead any evidence to support this. Mr McMahon, on the other hand, considered that the experience Mr Shoobridge gained when working on the Police houses was relevant, and was testimony to Mr Shoobridge's competence. In my view whether experience gained on any building site is relevant industry experience is a question of fact to be determined in each case. The standards do not require that there be a DA in place for work done on a site to be relevant industry experience.
It would have been of advantage for Mr Trist to have had experience in obtaining a DA and occupation certificates certifying work undertaken. However this Tribunal does not consider having obtained DA approval for work as essential to establishing experience in a wide range of building construction work. The Tribunal is satisfied that Mr Trist has the skills to undertake the process of obtaining DA approval - based on Mr Millar's attestation to Mr Trist's project planning skills. In other respects, as set out, the Tribunal considers Mr Trist's experience is sufficiently broad.
On balance, this Tribunal is satisfied that Mr Trist's work with the Sydney Harbour Federation Trust meets the requirement of supervised experience for at least 24 months in a wide range of building construction work. The Tribunal is satisfied that Mr Trist has the skill, knowledge and ability to hold a building contractor's licence.
The Tribunal notes that Mr Trist has the necessary qualifications to be licensed as a building contractor under the Instrument. There was no suggestion that Mr Trist lacked fitness and propriety to be licensed as a building contractor.

Trist v Commissioner for Fair Trading, Office of Finance and Services

At a glance

Court

Decision date

Source

Judgment (35 paragraphs)

Parties

Cases Cited (5)