Turnberry Builds Pty Ltd v Secretary, Department of Customer Service; Young v Secretary, Department of Customer Service [2025] NSWCATOD 135;

(1) In November 2022 Turnberry entered into an oral contract with the owners to do residential building work at a property in Figtree.

(2) On 13 November 2022 Turnberry issued an invoice to the owners for $30,000 being a 15% deposit for the building work. The deposit was paid in full by the owners. The deposit was in excess of the maximum amount of a deposit for residential building works of 10% of the contract price prescribed by s 8 of the Home Building Act.

(3) Turnberry failed to provide the owners with a signed copy of the contract within five clear business days after entering into the contract as required by s 7B of the Home Building Act. The owners were provided with a formal written contract on 6 January 2023.

(4) Turnberry did residential building work and received payments without home warranty insurance in place in contravention of ss 92(1) and 92(2) of the Home Building Act.

(5) On 20 February 2024 Turnberry submitted an application for home warranty insurance which contained false information which included a fraudulent contract bearing the date 14 February 2024, an estimated start date for the works of 14 February 2024 when works had commenced in November 2022, and seven items missing from the agreed scope of works.

(6) Turnberry breached statutory warranties under s 18B(1) of the Home Building Act as an Inspection Report showed 27 items of defective or incomplete work at the Figtree property.

(7) Turnberry completed residential building work at a property in Austinmer in October 2024 without obtaining home warranty insurance.

1. Both Turnberry and Mr Young were found by the respondent to have engaged in improper conduct arising out of these allegations.
2. Turnberry and Mr Young do not appear to dispute that the conduct complained of by the respondent occurred, although they put forward several mitigating factors and argue that the penalty imposed is unduly harsh.

1. Section 60 of the Administrative Decisions Review Act 1997 (NSW) ("ADR Act") empowers the Tribunal to make an order staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application. While the term "stay" is used in these reasons it is recognised that the power under s 60(2) of the ADR Act is one that enables the Tribunal to temporarily reinstate a licence that has been cancelled pending the hearing of an application for review of a decision to revoke the licence: AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 at [96] ("AVS").
2. The principles relevant to the exercise of the discretion under provisions such as s 60(2) of the ADR Act are set out in QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAP 113. Those principles can be summarised as follows:

(1) whether the order is appropriate to secure the effectiveness of the determination of the application for review;

(2) whether the order is desirable taking into account:

(a) the interests of any persons who may be affected by the determination of the application for review;

(b) any submission made by or on behalf of the administrator who made the decision to which the application relates;

(c) the public interest;

(3) the applicant's prospects of success on the application for review.

1. The circumstances that are relevant in any particular case to the considerations identified above may well overlap or be interrelated.
2. In AVS at [129] the Court of Appeal held that securing the effectiveness of the determination of the application involves matters such as ensuring that the lapse of time before the determination is actually made does not deprive the review of practical point. The Court went on to say that it also involves considering the possibility that the result of the review might be that the decision is affirmed, with the consequence that, if stay is granted, the decision has not been implemented during the period of the stay.
3. Mr Young has provided two affidavits in support of the stay application. He states that he is currently unable to work as a builder for Turnberry or as a nominated supervisor for another company. Similarly, Turnberry is unable to work as a builder. He states that this has had a significant impact on his business and on his personal finances. He also provides background information concerning the Figtree property.
4. The primary matter relied upon by Mr Young concerning whether a stay is necessary to secure the effectiveness of the review relates to the viability of Turnberry. Mr Young states that the company now has significant debts and has provided invoices dating back to March 2025 which he indicates remain unpaid. He states that the company is at risk of external administration which would likely see the business come to an end and his creditors not paid in full.
5. Mr Young also refers to his family's financial circumstances and states that, if he is not able to work, he would need a further $38,000 a year to cover his family expenses. He is concerned about the impact on his wife and three young children if he is unable to meet these expenses, including his ability to repay his mortgage.
6. Mr Young states it is likely that, if a stay is not granted, there will be no remaining business to be licenced should his application for review be successful. He notes that the period in which the licences would be reinstated is relatively short, the substantive hearing being listed in February 2026. He states that there would not be any risk to the public if the licences were reinstated as there is "zero risk" of him acting again in the way he did. He notes that he has not had other complaints against him or the company during the time they have held licences.
7. While Mr Young has provided some invoices which he indicates remain unpaid, he has not provided any evidence of the current financial position of either the company or himself. It is therefore not possible for me to make any assessment of the likelihood of Turnberry going into administration. It does not appear that any action has been taken to date, even though the company has not been trading since March 2025. I note that a stay was not sought at the time the applications to the Tribunal were made and it is now a relatively short period of time until the final hearing. In the absence of any evidence that the company is facing external administration, I am not satisfied that a stay is required to secure the effectiveness of the review.
8. I accept that there are other people whose interests may be affected by the determination of the review. Mr Young refers to employees who have lost their jobs. I note that the licences were suspended on 12 March 2025 and that it is now many months since the company has traded. While the situation of his employees is unfortunate, at least one has found other employment. Mr Young states that the two apprentices he employed have not found anyone to take on their apprenticeships. It is not clear whether they have found alternative employment.
9. Mr Young has not provided any substantial evidence concerning his family's financial situation, but I accept that his loss of income would have had an adverse effect upon the family's finances. Mr Young also states the family income has been further reduced as his wife is currently on workers compensation. He has not, however, provided details of the family's expenditure to enable a proper assessment to be made of the impact of his loss of income.
10. Mr Young states that projects he had underway at the time the licences were suspended and then cancelled have had to be completed by others. He does not provide any evidence that those homeowners are waiting for him to return. He does say, however, that prior to the suspension Turnberry was in the final stages of quoting on two projects. The homeowners for one of these projects have provided a letter of support for Mr Young and speak highly of his professionalism. They state, however, that they are not privy to the circumstances which led to the cancellation of the licences.
11. Mr Young also refers to three smaller projects which he states would enable the company to stay afloat. The homeowners in relation to those three projects state that the continued involvement of Mr Young is essential.
12. None of the above projects are on foot and, while I accept that it may take the owners some time to find a replacement builder (if they have not done so already), that course is open to them, particularly in circumstances where work has not commenced. I also accept that they may incur some additional expense.
13. The respondent submits that, as Mr Young, has been dishonest in his application for home warranty insurance, he would not be able to obtain insurance in the future which would mean he would be limited to work not requiring home warranty insurance. The respondent notes that all projects mentioned by Mr Young require insurance. I agree with Mr Young that, in essence, the respondent's claim with regard to the availability of insurance is speculative.
14. While I accept that there are people whose interests may be affected by the outcome of the determination of the review application, this factor must be weighed against the other considerations.
15. The respondent makes submissions concerning the protective nature of the Home Building Act for consumers in the contracting for and the construction of residential buildings: McGufficke v Commissioner for Fair Trading [2022] NSWCATOD 176 at [48]. She submits there is a broad public interest in the integrity of the residential building sector and ensuring compliance with the regulatory regime.
16. Mr Young seeks to characterise the relationship between himself and his wife and the Figtree homeowners as one of friendship. That may be so, but that does not explain why Mr Young failed to provide a written contract, failed to obtain home warranty insurance and provided false information to the insurer when he did make such an application. It also does not explain his behaviour in failing to obtain insurance for the Austinmer property.
17. Mr Young also argues that the respondent failed to take into account that he rectified the defects found in the work at Figtree. As the respondent points out, however, his obligation was to undertake work without defects.
18. The allegations against Mr Young and Turnberry are serious, particularly the prospect of leaving homeowners with work that is uninsured. Mr Young does not dispute these matters but his current tendency to downplay their importance does not suggest he fully appreciates the seriousness of his conduct.
19. It is always very difficult to assess an applicant's prospects of success in an administrative review application. As noted, Mr Young does not challenge the matters relied upon by the respondent in the disciplinary decisions. Rather, he disputes the penalty which he describes as harsh and unreasonable. Mr Young states his actions were an aberration and an isolated incident. He also submits that the penalty is out of keeping with that imposed in other cases. Overall, the question of whether Mr Young and Turnberry would be successful in their review applications is finely balanced.
20. The matters which led to the disciplinary action against Mr Young and Turnberry involve serious non-compliance with their legal obligations. The seriousness of these matters lead me to conclude that these matters outweigh the interests of Mr Young and others and the business of Turnberry. I am also not satisfied it would in the public interest to allow him and Turnberry to operate on an interim basis pending the outcome of the reviews.
21. Mr Young has proposed that he give an undertaking to notify all customers of these proceedings and to comply with the Home Building Act. He also undertakes to offer reemployment to the employees stood down following the suspension of the licences. It is Mr Young's and Turnberry's legal obligation to comply with the Home Building Act. Any undertaking in that regard can offer no further protection to the public. As to the former employees, it is not clear why an offer of employment, possibly for a few months only, is significant. While notifying perspective clients of these proceedings may offer some comfort, I am not satisfied that this would sufficiently counter my other concerns.
22. The applications for interim orders staying the operation of the decisions under review are therefore refused.

(1) The request by Turnberry Builds Pty Ltd for interim orders in relation to the decision made by the respondent to cancel the applicant's licence and to disqualify it from holding a licence for a period of five years is refused.

(1) The request by Nathanial Young for interim orders in relation to the decision made by the respondent to cancel the applicant's licence and to disqualify him from holding a licence for a period of four years is refused.

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