Ur Rehman v Commissioner for Fair Trading

Mr Harvey's evidence

1. The affidavit of Roger Harvey annexed the transcript from the record of interview conducted with him in January 2020. At hearing, Mr Harvey gave additional oral evidence. He was shown copies of forms submitted by the Applicant in his various applications, which had been shown to him during the January 2020 interview, and asked again whether he had filled out the forms and whether he had signed them. He denied filling out each of the forms and denied signing each of them. When asked if he had been involved in the building work at the 6 Ramage Street Marsden Park site, he said "Not directly. No. Faisal carried it out as a supervisor. I only saw the house on completion. I don't know if it was under my licence. Personally, I was not involved on that site". When asked if he had supervised the Applicant at that site at all, he said "No".
2. When asked if he had discussions with the Applicant regarding him submitting forms to Fair Trading, he said "Yes we had discussed him applying for the licence. It wasn't finalised. I was unaware of him doing what he did. He's a naughty boy. We never had a form in our hands and talking about filling it out". He denied that he had given the Applicant permission or had made any arrangement with him to use his signature. He also said that the completed supervision and referee statement forms he was shown were "not the way I have done it in the past. I would have given more detail, added a sheet with extra details".
3. Mr Harvey agreed that he had spoken to the Applicant about the referee statements and on-site building forms after he had received an email from Fair Trading asking for his verification, before he was interviewed by them in January 2020. He had also spoken to the Applicant after he was interviewed, saying "I spoke to him [the Applicant] and he said he would withdraw. Then I had the interview. He said he wasn't going to do it but then he put another application in. Silly fellow went and did it."
4. Under cross examination by the Applicant, Mr Harvey was asked about a meeting he had with the Applicant on 11 October 2020, at which it was alleged the Applicant had given him the referee statements and on site building supervision forms to sign. Mr Harvey said "It was exceptionally late at night. I was very tired. I am a type 2 diabetic on insulin. I had to sleep in my car then… I can't specifically say yes I did this…. The signature is a bit wobbly… I don't remember signing any others. The signature is not the same as on the other forms."

Consideration

1. Neither party made any submissions as to whether or how the Tribunal should take into consideration or apply the Respondent's 'Guidelines for Determining a Disciplinary Action Outcome', (the Disciplinary Guidelines) which were relied upon by the Respondent in making the decision of 5 July 2022. The Disciplinary Guidelines propose a five step process in determining disciplinary action involving: Assess the severity of the conduct, Propose a disciplinary action, Consider subjective factors, Apply an adjustment if appropriate, Determine a disciplinary action outcome. Each step is then given detailed guidance for a decision-maker's application.
2. The Tribunal is not required by s 64(4) of the ADR Act to have regard to such policies or guidelines, and is permitted to do so only if the policy is not contrary to Government policy and if doing so does not produce an unjust decision: Whitehouse v Commissioner for Fair Trading [2017] NSWCATOD 108 at [39]; Carrigan v NSW Fair Trading [2018] NSWCATOD 60 at [32]; Limberis v Commissioner for Fair Trading [2017] NSWCATOD 128 at [32]. In the absence of specific submissions addressing the Disciplinary Guidelines and their application to the facts in these proceedings, I have not taken the Disciplinary Guidelines into account in my consideration.
3. Under cross examination the Applicant's evidence about how and by whom the supervisor forms were completed and signed was inconsistent. Initially he explained that he had a scanned version of Mr Harvey's signature on a form on his computer, which he would then fill out with the details of the locations and dates he was claiming at which Mr Harvey had supervised him. Later in cross examination, he said that "I remember he signed one in the office and one near Rooty Hill when we had some exchange of documents there", suggesting that two of the forms had been physically signed by Mr Harvey. He said "I filled it all in and he signed it… he signed on other applications too for Victoria and Queensland. He signed there. I filled in the rest of the details." This was additionally inconsistent with the explanation given in his 4 April 2023 submissions, where he admitted that he had stored a form which was signed by Mr Harvey on his computer, and then filled it out multiple times with the different site addresses and dates by which he was claiming experience. In cross examination when asked if he had "more than one form saved to your computer", he said that he had saved "two to three copies. One in Rooty Hill and one in Bella Vista". He also said that "the lady at Service NSW signed the form. Yeah she just wrote down the name" when asked whether he had signed his own referee statement.
4. The Applicant distinguished this type of conduct from physically signing Mr Harvey's signature on the forms he submitted, which he denied doing. His oral evidence contradicted the statements he made during his record of interview on 14 July 2020, where he admitted writing Mr Harvey's name in the signature box in the 5 forms submitted with Application 3. When asked during cross examination about his various responses to questions about the signing of documents in the July 2020 interview, he said "I can't remember". When asked about the discrepancies between his responses in the July 2020 interview and the evidence provided to the Tribunal he "couldn't remember" and then gave an explanation involving "the lady at Service NSW filling out the forms".
5. I find that the Applicant was not a truthful witness. His evidence was entirely self-serving, contradictory and inconsistent. He took advantage of Mr Harvey and falsified his signature on the referee statements and on-site building experience forms he submitted to Fair Trading on three occasions.
6. The evidence demonstrates further that the Applicant was not supervised by Mr Harvey on any of the building sites claimed, either adequately at all. The Applicant said "They want someone to supervise me most of the time or all of the time. But that's not how I work". Mr Harvey has and had mobility challenges which prevented him from attending on-site, and left the building works undertaken by Safari Homes entirely to the Applicant. Even if the Applicant did send Mr Harvey photos of the work completed (which I do not accept in the absence of any documentary evidence to that effect), this is not sufficient in the circumstances to constitute "supervision", and does not satisfy the requirements of the HBA.
7. I accept Mr Harvey's evidence that he neither completed any of the on-site building forms and referee statements, nor signed any of those forms, nor gave permission for his signature to be used on those forms.
8. The evidence of Parmjit Singh Gill and Saif Ur Rehman was relevant only to the Applicant's supervision by Bilal Ali. In any event, I do not accept the evidence of either Parmjit Singh Gill or Saif Ur Rehman. I consider it likely in the circumstances of Mr Ali's withdrawal of his referee statement, the similarities between their witness statements, the Applicant's explanation for those similarities, and my view of the Applicant's truthfulness, that the Applicant drafted their statements and they merely signed them on the Applicant's request. I am also not satisfied that the forms signed by Bilal Ali were, in fact, signed by him, or that Mr Ali supervised the Applicant as claimed by him.
9. The forms lodged with the Respondent by the Applicant in support of his applications contained statements which were false and misleading. A total of 13 forms purported to be signed by Roger Harvey were submitted by the Applicant to the Respondent, each of which I find were not, in fact, signed or authorised by Roger Harvey.

Improper Conduct

1. I am satisfied that the elements of an offence under s 307A of the Crimes Act are made out. The Applicant has submitted documents, being the on-site building experience forms and referee statements submitted in relation to Applications 1, 2, and 3, to a public authority, being the Respondent, for an authority, being the licence to which the applications were made. Each of those statements was false and misleading in that they were not signed by Roger Harvey, were not authorised by him, and attributed supervision to him of the Applicant, which did not occur. The Applicant knew that the statements were false and misleading. In my view the strength of the evidence goes well beyond the standard required in these proceedings, and would satisfy the criminal standard of proof.
2. This supports a finding that the Applicant has engaged in improper conduct pursuant to s 51(1)(a) of the HBA. Ground 1 and 2 are therefore made out, specifically that disciplinary action may be taken towards the Applicant as a contractor licence holder (Contractor Licence No. 324588C) pursuant to s 56(c) of the HBA, and as the holder of a supervisor certificate (Supervisor Certificate No. 90170S) pursuant to s 57(c) of the HBA.

Fitness and Propriety

1. I agree with the Respondent's submission that the Applicant's conduct in submitting the 13 forms containing false or misleading information to NSW Fair Trading, across multiple occasions and a period of 22 months, goes to his character, integrity and reputation.
2. As discussed above at [18] to [24], fitness and propriety encompasses a broad range of things, but in the circumstances of these proceedings, the Applicant's dishonesty is significant. Additionally, the Applicant was unable to recognise or admit that he had done anything inappropriate (let alone, improper). He said in final submissions "I did nothing to be wrong, to be honest... I don't feel guilty."
3. Both the HBA and the PSAA establish regimes for the licensing of persons to perform work in a particular industry, and for the protection of the public. The intent and purpose of the HBA is consumer protection in relation to residential building. The accreditation of a person as a contractor or a qualified supervisor under the HBA means that they are held out to consumers and the general public as being possessed of relevant knowledge and expertise, and that they can be trusted to do the job for which they are engaged by the consumer. Similarly, the PSAA establishes that integrity, honesty and trustworthiness are central to the certification and licensing regime for persons engaged in the real estate industry in NSW. As the Tribunal noted in Maher v Department of Fair Trading [2019] NSWCATOD 21 at 124: A licensed real estate agent carries privileges and obligations. Agents are entrusted to hold deposits on sales of properties and to receive rent on behalf of landlords. The industry is regulated to provide the public with a measure of confidence that agents follow rules in respect of trust money and conduct themselves competently, honestly and fairly.
4. The consumer protection aspects of the licensing regimes established by the HBA and PSAA are significant and have been repeatedly reinforced by this Tribunal.
5. The Applicant's fitness and propriety must be determined for each of the licences, in consideration of the particular role the licence authorises the Applicant to take. Regard must be given to the nature of the functions, obligations and duties which would arise under each of the licence.
6. There are 4 licences or authorities under consideration in these proceedings. A contractor licence in the category of 'bricklayer' under the HBA, a supervisor certificate in the category of 'builder' under the HBA, a Class 1 Agent - Real Estate - Sales or Leasing Property - Individual licence under the PSAA and a Certificate of Registration Assistant Agent - Real Estate - Sales or Leasing Property licence under the PSAA.
7. A contractor licence in the category of bricklayer allows its holder to contract and advertise to do bricklaying work over the value of $5000, Schedule 1, clause 2(3)(a) of the HBA. The licence is limited to non-structural, non-load bearing works, associated flashing and associated minor concreting: see Schedule 4 to the Home Building Regulation 2014. A supervisor certificate in the category of builder allows its holder to supervise residential building work, making its holder responsible for the work supervised, and requires the holder to ensure that the work is done with due care and skill, that suitable materials are used, and that the work is complaint with the relevant regulations and building codes.
8. A Certificate of Registration Assistant Agent - Real Estate - Sales or Leasing' Property licence is an entry level registration under the PSAA, allowing an individual to gain the qualifications and experience for a Class 2 real estate licence. It authorises its holder to carry out the activities of an assistant real estate agent, whilst employed and under the supervision of a licensee in charge of a real estate licence. It does not allow its holder to enter into any contracts for sale of land, agency or franchising agreements, act as agent, affix the seal of an owner's corporation, or authorise withdrawal of trust funds.
9. A Class 1 Agent - Real Estate - Sales or Leasing' Property - Individual licence allows its holder to: 1. act as an agent for a client to sell, buy or exchange property, businesses or professional practices, 2. negotiate with clients and vendors, 3. collect rent, deposits, bond payments and fees related to a lease, licence or contract; 4. act as a licensee in charge (LIC), and open and authorise trust account transactions for the business, including withdrawals.
10. In determining the Applicant's fitness and propriety with respect to each of the licences or authorities in question, the Tribunal must consider the evidence before it, taking into account and weighing up matters both contrary to and in favour of the Applicant.
11. In my view the certificate of registration as a real estate assistant agent cannot be considered in the same terms as the contractor licence in the category of bricklayer, the supervisor certificate under the HBA, or the Class 1 real estate agent licence under the PSAA. An entry level position with little or no unsupervised responsibility or ability to engage with consumers does not require an equivalent level of fitness and propriety to the other three licences or authorities. Whilst the Contractor licence in the category of bricklayer is far more limited in scope and responsibility to the supervisor certificate under the HBA or the Class 1 real estate agent licence under the HBA, it still involves the possibility of engaging with and entering into contracts with consumers.
12. In consideration of the Applicant's fitness and propriety is his honesty, knowledge and ability. The Applicant's knowledge and ability with respect to the functions and responsibilities of each of the licences or authorities has not been disputed by the Respondent. His honesty is the issue.
13. There is no evidence that he has been dishonest with consumers in either the HBA context or the PSAA context. Nor is there any evidence of complaints from consumers in either the building construction or real estate industry. This acts in favour of him being a 'fit and proper person'.
14. The Applicant submitted in relation to his fitness and propriety that because "I always pay tradies on time", and that as a Muslim he prayed 5 times a day, that this demonstrated honesty and integrity. It does not. The Applicant's evidence of hardship also has little bearing on the assessment of whether the Applicant is a fit and proper person for the purposes of each of the above-mentioned licences or authorities.
15. The Respondent submitted: Real estate agents are entrusted to deal with large sums of money on behalf of clients. The holders of contractor licences are able to enter into contracts with consumers. Holders of supervisor certificates under the HBA and property certificates under the PSAA are involved in industries within which the public must have confidence in the honesty and integrity of holders of authorities. The Respondent submits it is not in the public interest for the Applicant to be accredited to the public as a person to be entrusted with the sort of work the Applicant's contractor licence, supervisor certificate, real estate agent licence and certificate entail.
16. I agree with the Respondent's submissions. Each of the licences or authorities in question results in its holder being held out to the public by the Respondent as a fit and proper person to hold that authority. In my view, given the Applicant's improper conduct in relation to the applications submitted to the Respondent, and given his evidence to the Tribunal, a consumer and the general public could have absolutely no confidence in the Applicant's honesty. This, combined with his inability to recognise that his conduct was improper, demonstrates that he is not a fit and proper person within the meaning of the HBA or the PSAA with respect to each of the licences or authorities.
17. I find that the Applicant is not a fit and proper person to holder a contractor licence under the HBA, is not a fit and proper person to hold a tradesperson certificate under the HBA, and is not a fit and proper person to be involved in the direction, management or conduct of the business of a real estate licensee.

Disciplinary Action

1. I am satisfied that the findings of improper conduct, and that the Applicant is not a fit and proper person, support disciplinary action being taken against the Applicant. The Applicant disputed the severity of the imposed penalties, essentially submitting that disqualifications for a period of 3 years 9 months were overly harsh and meant that he was unable to work, and support his family, for a considerable period of time.
2. The Respondent submitted that it was open to the Tribunal to impose different penalties on the Applicant, but made no submissions regarding the distinction between the penalties imposed for the different authorities or licences.
3. The cancellation of each of the Applicant's licences or authorities by the Respondent is justified by the findings that the Applicant is not a fit and proper person to hold each of the relevant licences or authorities.
4. The Applicant's licences and authorities have been cancelled now for over 12 months and he has been disqualified from re-applying for those licences or authorities during that time. Imposing a disqualification period with respect to each licence or authority is appropriate given the improper conduct engaged in by the Applicant. However, the periods of disqualification should take into account all of the relevant circumstances, which include the impact on the Applicant, in addition to the objects and purposes of the HBA and PSAA including consumer protection and the public interest.
5. Bearing in mind the Applicant's assertion (in the absence of supporting evidence) that he is left with no way of supporting his family, and because the conduct underpinning the disciplinary action is the same for each of the disciplinary actions taken, in light of the distinctions identified at [76], [77], [78] and [80] above, it is my view that the periods of disqualification should be varied in line with the level of consumer confidence required of the particular licence or authority. This reflects the principle that a person's fitness and propriety needs to be examined in view of the nature of the particular role's functions, obligations and duties.
6. The Decision initially determined that disqualification for a period of 3 years was appropriate with respect to both the HBA and PSAA licences or authorities, on the basis of the Applicant's conduct submitting 16 false and misleading statements to the Respondent in connection with Applications 1, 2 and 3. This was increased by 25% to 3 years 9 months following consideration of subjective factors including those with a mitigating effect and those with an aggravating effect. The mitigating factors included the Applicant's compliance history and his personal financial circumstances, both factors which I have considered in the context of his submissions regarding fitness and propriety, above at [82] and [83]. In the context of the imposition of a disciplinary penalty they have more relevance and I take them into account. The aggravating factors included the Applicant's repeated instances of unlawful conduct over almost 2 years, and the fact that he has not shown any insight into that conduct, both of which I have also referred to above and which I have considered in relation to the imposition of an appropriate penalty. I have also taken into consideration the fact that the Respondent did not rely on the forms purportedly signed by Mr Ali in these proceedings, to the effect that only 13 of the 16 false and misleading statements were the subject of tested evidence in these proceedings.
7. As discussed above at [59] and [60] the Tribunal is not bound by the Disciplinary Guidelines, especially in circumstances where their application may produce an unjust outcome. There is no requirement for the Tribunal therefore to apply discounts or percentage increases in the manner expressed in the Decision.
8. In my view a disqualification pursuant to s 62(1)(g)(i) of the HBA from holding a Contractor licence in the category of bricklayer for 12 months is appropriate. The disqualification period should be varied accordingly. This means that, taking into account the 12 months which have passed since the disqualification, the Applicant should now be able to apply for that licence again. The disqualification period pursuant to s 62(1)(g)(i) of 3 years and 9 months from holding a supervisor certificate is, in my view, appropriate.
9. Declaring the Applicant to be a disqualified person for the purposes of the PSAA for a period of 3 years and 9 months pursuant to section 192(1)(h) of the PSAA draws no distinction between the two different licences or authorities held by the Applicant under that legislation. Section 192(1)(i) disqualifies the Applicant from being involved in the direction, management or conduct of the business of a licensee under the PSAA. In my view the period of disqualification in relation to direction, management or conduct of the business of a licensee imposed by the Respondent is appropriate, however, declaring the Applicant a disqualified person should be varied to a period of 12 months. This means that the Applicant could now re-apply for his assistant agent certificate under the PSAA, but is not able to obtain a Class 1 or Class 2 licence.

Orders 1. The Respondent's decision is varied in accordance with these reasons for decision to impose the following disciplinary action on Faisal Ur Rehman (the Applicant) pursuant to section 62 of the Home Building Act 1989 (NSW) (HBA) and section 198 of the Property and Stock Agents Act 2002 (NSW) (PSAA): 1. Cancellation of the Applicant's Contractor Licence No. 324588C and Supervisor Certificate No. 90170S pursuant to section 62(1)(f) of the HBA; 2. Disqualifying the Applicant from holding a Contractor Licence in the category of Bricklayer under the HBA for a period of 12 months pursuant to section 62(1)(g)(i) of the HBA; 3. Disqualifying the Applicant from holding a Supervisor Certificate in the category of Builder under the HBA for a period of 3 years and 9 months pursuant to section 62(1)(g)(i) of the HBA 4. Cancellation of the Applicant's Real Estate Licence No. 20155529 and Certificate of Registration 1520083 pursuant to section 192(1)(g) of the PSAA; 5. Declaring the Applicant to be a disqualified person for the purposes of the PSAA for a period of 12 months pursuant to section 192(1)(h) of the PSAA; and 6. Disqualifying the Applicant from being involved in the direction, management or conduct of the business of a licensee under the PSAA for a period of 3 years and 9 months pursuant to section 192(1)(i) of the PSAA.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 July 2023