Veselinovic v Secretary, Department of Customer Service [2025] NSWCATOD 36

1. The Applicant filed his application to the Tribunal on 30 August 2024 (A1); his "Statement of Evidence" dated 12 December 2024 with accompanying documents (A2 and exhibit SV-1) and written submissions filed on 18 December 2024 (A3); a "Supplementary Statement of Evidence" of the Applicant dated 3 March 2024 with accompanying documents (A4 and exhibit SV-2), as well as written reply submissions (A5).
2. The Respondent filed documents required by s 58 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) (R1) totalling 535 pages, and written submissions filed on 21 January 2025 (R2).

1. According to s 9 of the ADR Act and ss 28 and 30 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), the Tribunal has jurisdiction over a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review.
2. Part 4A of the HB Act deals with administrative reviews by the Tribunal. Under s 83B, an applicant for the renewal of a Certificate may apply to the Tribunal for an administrative review of (as here) a decision to refuse to grant it. Section 83B therefore gives this Tribunal jurisdiction.
3. The task of the Tribunal is to decide what is "the correct and preferable decision" having regard to "any relevant factual material, and any applicable written or unwritten law": ADR Act, s 63. The Tribunal is not restricted to consideration of the material that was before the original decision-maker but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 129.
4. The Tribunal may affirm the decision, vary the decision, set aside the decision, decide in substitution, or remit the matter for reconsideration by the administrator.
5. The Tribunal isn't bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: NCAT Act, s 38(2).

1. The Original Decision (R1, p255) provided - in summary - the following reasons for the refusal:

(1) The Company was the subject of orders made in respect of three consumer claim proceedings in the NSW Civil and Administrative Tribunal (the NCAT proceedings) that had not been satisfied within the period required by the Tribunal;

(2) the Applicant was the director of the Company, which was a Chapter 5 body corporate; and

(3) the Applicant was not a fit and proper person to hold a Certificate.

1. The IR Decision (R1, p529) maintained the decision to refuse. However, the reasons were different. As explained by the Respondent (at R2 [17]):

(1) The review only took into account one of the NCAT proceedings, in which the Applicant was personally named as a respondent. In respect of those proceedings, it found that insufficient material was provided by the Applicant to demonstrate that he made "all reasonable attempts to comply with the orders". Based on the evidence provided, all efforts to negotiate with the NCAT plaintiffs pre-dated the making of the orders by NCAT on 23 October 2023;

(2) The review considered the discretion available under s 33B(5) of the HB Act and determined that there was still insufficient independent evidence to establish the circumstances leading up to the administration of the Company beyond the NCAT Proceedings. Thus, the delegate declined to exercise the discretion to issue the authority notwithstanding the Applicant was the director of a Chapter 5 body corporate; and

(3) It affirmed that the Applicant had not satisfied the fit and proper person test under s 25(1) of the HB Act. The Applicant's failure as director of the Company to comply with NCAT orders was indicative of the Applicant's failure to complete work under contract and caused detriment to consumers. There was a concern that the Applicant did not comply with his legal obligations to obtain HBCF insurance in specific cases. The combined effect of those factors did not satisfy the delegate of the Applicant's fitness and propriety.

1. The Applicant was the only witness who attended the hearing, or was required to do so. He was cross-examined by the Respondent.
2. The following persons (among others) provided letters or reports which were referred to in, and exhibited to, the Applicant's statements. The Respondent did not seek to have these persons attend the hearing:

(1) Ms Kennedy - the external accountant for the Company at all relevant times;

(2) Mr Sierocki - the managing director of Insolvency Advisory Accountants; and

(3) Mr McLean - a psychologist and Senior Clinician at Veretis Legal Psychology who assessed the Applicant face-to-face for 2.5 hours on 9 December 2024, provided a report dated 11 December 2024 (McLean Report; SV-1 p10), and who acknowledged in that report to be bound by the Expert Witness Code of Conduct.

1. Prior to the events described below, the Applicant had established and run a successful business which operated without any apparent financial difficulties.
2. The Applicant engaged a qualified accountant, Ms Kennedy, to manage the financial affairs of the Company. She commenced in around 2016-17, from the Applicant's recollection. The relevant history of Ms Kennedy's advice and actions is set out in letters authored by Ms Kennedy dated 31 October 2024 (A2/SV-1 p40) and 3 February 2025 (A4/SV-2 p16). I acknowledge that the letters were "unsworn", but they stated she was available to answer questions as required. I find that her explanations of the events that occurred were not challenged in any material respect.
3. Ms Kennedy described herself as the "former accountant and financial advisor for [the Company], where she worked closely with the Applicant throughout the operational life of the company until it entered external administration in January 2024".
4. As explained by the Applicant, Ms Kennedy conducted her own accounting business. Despite being based in Brisbane, she had full online access to the financial records of the Company through Xero; she could log on at any time, and she provided bookkeeping services as well as preparing all accounts and tax returns. She also prepared draft invoices for the Applicant to approve and send on behalf of the Company. She could monitor the cash flow and see when invoices had been sent out.
5. The Company, in line with standard practice for many building companies undertaking residential building work, entered into fixed price contracts.

1. The Applicant submitted that the precipitating factor for the financial difficulties was the COVID-19 pandemic.

(1) The first element was the lockdowns: When lockdowns were imposed, his staff could not attend the factory, and full capacity did not resume until sometime around 2021, to the best of his recollection.

(2) The second element was large increases in material costs; and

(3) The third factor was staff shortages after COVID.

1. Ms Kennedy described it in her 31 October 2024 letter as follows:

"[The Applicant] consistently demonstrated a responsible and proactive approach to financial management, frequently seeking my advice on strategies to manage emerging cash flow challenges. He successfully led the company from 2008 until the unforeseen impacts of the pandemic, navigating his team through numerous projects. However, like many in the industry, the rapid increase in material costs and the broader economic downturn during the global crisis placed unprecedented pressures on the business."

1. As 2021 progressed, the Applicant said that suppliers were still increasing costs "constantly", and the Company was "stuck" with the fixed price contracts. The evidence suggested some contracts were entered into in 2022 as well. In any event, it was not disputed that the contracts explained in his statements did not allow for pricing adjustments to pass on increasing costs.

The events leading up to the appointment of the liquidator

1. The Applicant told the Tribunal he first became aware of financial issues which were raised by Ms Kennedy in around January 2023. It is convenient to set out the salient parts of Ms Kennedy's letter dated 3 February 2025 which builds upon the previous letter in more detail: (emphasis in original).

"As [the Applicant's] former accountant and financial adviser, I closely monitored his financial situation, provided strategic recommendations, and worked alongside him as he implemented these measures to stabilise his business.

Identification of Financial Challenges and Immediate Actions

In January 2023, while reconciling accounts for the second quarter of 2022-23, I identified early signs of cash flow issues, noting increased payables compared to previous periods. I raised this with [the Applicant], who immediately recognised the urgency of the situation and sought my guidance. At my request, he provided a detailed list of current clients, expected payments, and anticipated profits for the remainder of the financial year.

During our initial discussions, we formulate a strategy that included cost-cutting measures, cash flow optimisation, and financial restructuring, all of which [the Applicant] diligently implemented.

Strategic Recommendations & Actions Taken

1. Speed up Project Completion & Improve Invoicing

• My Advice: Expedite project timelines, issue invoices immediately upon progress completion, and implement automated invoice reminders.

• Action Taken: [The Applicant] held a meeting with his workers, stressing the need to increase efficiency and minimise downtime. He ensured that all invoices were issued the same day as progress milestones were reached, resulting in improved cash flow Additionally, I configured automatic invoice reminders in Xero to follow up on outstanding payments.

2. Liquidate Non-Essential Assets & Lease Instead of Buying

• My Advice: Identify and sell underutilised machinery, vehicles, and other assets to inject funds into the business.

• Action Taken:

• Sold Polystyrene Recycling Machine for $14,500, opting to use Shellharbour Recycling & Waste Depot instead.

• Sold Screw Piles Auger Setup for $9,200.

• Sold Holden Ute for $5,700, as it was not in use.

• Proceeds from these sales were deposited into the company's ANZ bank account, which I later reconciled.

3. Reduce Inventory Costs & Free Up Cash

• My Advice: Ony purchase materials as needed and sell slow-moving stock.

• Action Taken:

• [The Applicant] reassured me that he was strictly controlling material purchases to avoid =excess stock.

• He sold surplus Structural Insulated Panels from his leased warehouse, generating $8,100, which was deposited into his Inventive Bank Account.

4. Prioritise High-Profit Jobs

• My Advice: Identify and fast-track high-margin projects to inject immediate cash into the business.

• Action Taken: We identified three highly profitable jobs:

• [client name] (Penrose)

• [client names] (Croom)

• [client names] (ACT)

• These projects were successfully completed in [financial year] 2023, significantly improving cash flow.

5. Utilise Available Credit & Explore Loan Options

• My Advice: Use existing overdrafts ad explore short-term financing to cover urgent expenses.

• Action Taken:

• Accessed a $40,000 ANZ business overdraft, which was used to settle outstanding bills.

• Obtained a personal loan with his wife and injected $90,000 into the company 3rd March 2023, which was recorded as a Director Loan.

• Explored business loan options but ultimately declined them due to high-interest rates and impractical repayment terms.

• Had previously injected $300,000 of personal funds in developing the Panelup Prefabricated Construction System, which was presented at the Darling Harbour and Canberra Home Show - a testament to his long-term commitment to the industry.

6. Cut Overhead Costs by Downsizing Operations

• My Advice: Cancel the leased warehouse to reduce expenses.

• Action Taken:

• In May 2023, after evaluating his financial position, I recommended terminating the warehouse lease, which was costing nearly $10,000 per month. Despite initial reluctance, he made the difficult but strategic decision to vacate the premises by 31st July 2023 and transition to operating from home and construction sites.

7. Re-Evaluate Upcoming Projects & Focus on Profitability

• My Advice: Avoid taking on projects with low margins and ensure accurate pricing on new contracts.

• Action Taken:

• During our monthly discussions, he assured me he was only taking on profitable projects.

8. Eliminate Non-Essential Expenses

• My Advice: Cancel unnecessary software subscriptions to cut recurring costs.

• Action Taken: In June 2023, he reviewed and cancelled multiple subscriptions, including Shapespark (3D virtual environments) and Adobe products (video marketing tools), keeping only essential business software.

9. Negotiate with Creditors & Clients on Payment Terms

• My Advice: Engage with key creditors and clients to establish manageable payment plans.

• Action Taken:

• Negotiated a $500/week payment plan with Bunnings, successfully avoiding legal escalation.

• Attempted to arrange payment plans with Bondor and Boral, but both rejected his offers and escalated the debts legally.

• Attempted to renegotiate with his main client, [name] (Sydney), but relationships deteriorated after disclosing financial difficulties, making negotiations unsuccessful.

Outcome & Final Observations

Despite executing every possible financial strategy and taking personal financial risks - including exposing himself to legal risks and caveats on his home - the company's situation ultimately became unsustainable. His 12-month financial battle was fought with full commitment, and he exhausted all avenues before making the difficult decision to place the company into liquidation.

Having known [the Applicant] for many years, and despite being very stressed during this period, I can attest that he took his financial responsibilities seriously and remained proactive in addressing challenges. While the outcome was unfortunate, his dedication to his clients, creditors, and business was evident in his relentless efforts to turn the situation around.

Despite investing nearly $400,000 of his personal and family funds into the company, he has not recovered any of it. This demonstrates his unwavering commitment and belief in the long-term success and reputation of his business..."

1. The Applicant's statements and his oral testimony before the Tribunal were consistent with the above correspondence from Ms Kennedy. He provided further details under cross-examination, much of it relating to the timing of what transpired. Other confirmatory material was included in his statements and in other documents before the Tribunal (such as bank statements or emails showing relevant dates). The salient matters are set out below:

1. The Applicant confirmed that Ms Kennedy's discussions with him in January 2023 went into more detail regarding cashflow issues but in essence there were more bills than cash coming in, and in large amounts. She spoke to him about what jobs could be done, so that she could continue to monitor expected profit margins on the jobs, and more profitable ones could be prioritised. Their ongoing communications were by phone or video.
2. The Applicant told the Tribunal that he did not recall discussing the possibility of external administration with Ms Kennedy at that time (early January 2023), or that the Company would become insolvent. Rather, they were seeking to put a plan in place to steady (and turn around) the Company's financial position.
3. At that time, the Applicant told the Tribunal:

(1) There were still staff shortages; staffing was very inconsistent, and some staff left for other jobs;

(2) The materials costs remained much higher than pre-COVID prices;

(3) From his recollection, he still had around 6 active customer contracts at that time, all fixed price contracts.

1. The Applicant confirmed that he held the meeting with his workers "definitely in January" (2023), because they got on to it quickly. He told Ms Kennedy about it shortly after it occurred as she was based in Brisbane.

1. The Applicant said that the polystyrene machine was sold at the end of January 2023, and the other assets in February 2023.

1. He confirmed that the three jobs listed by Ms Kennedy were completed and also invoiced prior to 30 June 2023; being Penrose, Croom and the ACT.
2. One of these jobs (Penrose) completed in April 2023. It was the build of a new home. The client provided a glowing reference letter (SV-2, p22), stating inter alia:

"Sasa's construction expertise, attention to quality, efficiency, and professionalism exceeded our expectations...

What impressed us even more was Sasa's transparency and integrity. In early 2023, he informed us that his company was undergoing financial challenges and restructuring. Despite this, he reassured us that he was working hard with his team to resolve the issues. While he mentioned that there could be potential delays, our project was not affected beyond the usual weather-related disruptions common in Penrose.

Sasa has successfully completed our home, and we can confidently recommend him to other clients."

1. As noted in Ms Kennedy's letter above, the Company had a $40,000 ANZ business overdraft, which was used to settle outstanding bills.
2. The Respondent queried the Applicant when he said he had injected an amount of $100,000 into the Company, which was incorrect as the amount was only $90,000 (R1, p308). The Applicant conceded the amount should have been $90,000; that was clear from both his statements, which both referred to an amount of $90,000 being raised by a personal loan and deposited into the Company's bank account on 3 March 2023 to try and improve the cash flow and to permit him to finish the projects for existing clients. I find his reference to $100,000 to have been an unintended error.
3. Ms Kennedy's reference to the Applicant's contribution of "nearly $400,000" (refer extract at par 28 above) took into account this $90,000, as well as $300,000 contributed some years prior.
4. On 30 May 2023, the Applicant obtained pre-approval for a business loan (i.e. a loan to the Company, and not him personally) in the amount of $22,500 (A4 [17]-[18]; SV-2 p25-26). It was clarified at the beginning of the hearing that the funding was never actually received; the funds were far less than had been requested, and the interest rate was very high. He therefore did not accept that offer.
5. Shortly afterward, on 12 June 2023, the Applicant contacted Mr Elmol of WE Finance Group on 12 June 2023 to explore business funding options. Due to the state of the Company financials, he was unable to secure another loan. This was confirmed by the letter dated 3 February 2025 from Mr Elmol (SV-2 p27) which said:

"The primary concern was the high risk associated with the construction industry and current company's state at the time, making lenders reluctant to provide financing."

1. The Applicant said that by November 2023, his intention was to obtain additional personal finance to contribute to the Company, consistent with what was done in the past. Before the Tribunal, he explained that the insolvency adviser thought that if he could put $300,000 into the company, this would pay out everything in respect of the NCAT proceedings (while continuing to seek to negotiate another outcome). In this regard, the Applicant contacted Mr Elmol again on 14 November 2023 to try and obtain a $300,000 personal loan secured against his family home to cover the NCAT orders (which, I note, were orders for the Company to pay amounts, and not the Applicant personally). The loan did not eventuate. The letter stated (inter alia):

"...his property did not have sufficient equity to secure the loan. Given these factors - due to the lack of stable income and insufficient collateral, he did not meet the minimum lending criteria. As a result, no formal loan application was submitted, as approval was unlikely even for a significantly lower amount."

1. The letter from Mr Elmol also noted that the Applicant was unable to provide payslips, as he had foregone personal wages to support his company. The Applicant told the Tribunal that his wife was an employee of the business, but he said she was also not getting paid.

1. He had one carpenter who was legally employed (the Employee); the other tradesmen were engaged as contractors. The Applicant and his wife were "on the books" as employees, but had not been paid for around 12 months prior to the time under consideration.
2. The Employee remained engaged by the Company to help the Applicant clearing out the factory and office when it was decided to end the lease of those premises in order to further cut costs.

1. In July 2023, when Ms Kennedy was monitoring the financial position at the end of the 2023 financial year, she advised the Applicant that the Company would be technically insolvent, and - relying on her advice - he made the decision to "stop trading from 1 July 2023". He told the Tribunal that as a director, he understood from Ms Kennedy that he had a duty to do so immediately. No work was done for clients on or after that date.
2. The Applicant accepted that from that time (1 July 2023), he was certainly aware that there was a possibility that the Company could be placed into administration.

1. In July 2023, the Applicant sought advice from Mr Sierocki, an insolvency practitioner. The letter from Mr Sierocki before the Tribunal said (SV-1, p42 - extracts):

"I am writing in my capacity as the insolvency advisor for [the Applicant] regarding [the Company]. [The Applicant] initially reached out to me in mid-July 2023, seeking advice on potential solutions to address the company's financial difficulties, with a strong commitment to protecting his clients and creditors from potential losses.

From July to December 2023, [the Applicant] and I held numerous consultations to explore all possible avenues for stabilising the company. During this time, [the Applicant] informed me of the steps he had already undertaken, including attempting to renegotiate terms with creditors and clients, as well as exploring bank financing, all of which ultimately proved unsuccessful. [the Applicant] also indicated that he was working closely with his accountant on financial planning efforts and had explored all reasonable solutions.

Despite these efforts, no viable agreements could be reached with clients or creditors, some of whom initiated legal proceedings, creating a time-sensitive situation. In light of this, I advised [the Applicant] that entering liquidation was in the best interests of the company, its credits, and its clients, as all other options had been exhausted. I also advised that prioritising certain NCAT debts or liquidating assets could place him at personal risk under ASIC regulations, so it was best to leave that to the liquidators to address.

[The Applicant] took time from July 2023 until January 15, 2024, to exhaust all alternatives before ultimately moving to liquidation, demonstrating his commitment to finding a positive outcome for all parties. Based on our interactions, I believe [the Applicant] acted with due diligence and in the best interests of his clients and creditors

..."

1. The Applicant said that he also continued to "rely a lot" on Ms Kennedy's advice and consulted with her "throughout".

1. On 30 July 2024, the Applicant sold his family home, and he repaid multiple creditors who advanced funds that he used to support his Company or who had caveats, including Bondor, Bunnings, Boral, and Stratco (all who were creditors of the Company): see A2 [36]-[37]; settlement statement at SV-1 p55; liquidator's report at SV-1 p29. The house was also highly mortgaged, and so the majority of funds received were repaid to the bank.

Discussions with clients and the NCAT proceedings

1. The Applicant told the Tribunal that upon the decision being made to stop trading, he contacted his clients. Three clients had existing fixed price contracts that he couldn't honour while the Company was unable to trade.
2. He said he was advised to try to resolve matters with his clients and creditors - and they talked through what to offer, different scenarios, and he was also advised to "be open" with them in those discussions.
3. So he told them what the position was, and tried to renegotiate terms so that he could honour the contracts, while still seeking avenues for injecting further personal funds into the company.
4. He told them that he had ceased trading from 1 July 2023, being "open" as he was advised to do. That, in his view, caused things to escalate, because some had paid deposits and brought in legal teams. He told the Tribunal "That's not what I was hoping, it got worse".
5. The claim relevant to this matter was the subject of the NCAT proceedings of which he and the Company were both parties. The claim related to a home being built by another builder, which the Applicant said had been delayed for around 2 years. The Company had manufactured bespoke panels for the house's particular dimensions, and were not usable for any other job. The Applicant said that the clients - who engaged lawyers - did not want the panels; rather, they wanted the contract to be terminated and the full deposit repaid. The Applicant said that obviously caused issues as the deposit had been spent on the panels. The Applicant said that the Company had manufactured "lots" of panels, worth in excess of $150,000, for upcoming jobs which had "stalled" due to the cessation of trading.
6. Correspondence between the Applicant and these clients was before the Tribunal and is referenced below (at pars 60-62). The Applicant referred to models completed for the project in 2022, and photos of the manufactured wall frames (see R1 pp466,470,477 and 478).
7. The contract relating to this job was not in the papers before me.
8. The Applicant explained that he did not attend one or more of the NCAT proceedings because he had no legal representation, was under personal stress, and that as a result of the circumstances that had arisen he had concluded that any defence would not be justified. I observe that the Notice of Order by the Consumer and Commercial Division of the Tribunal made on 24 October 2023 (R1, p492) stated that the order for the Company to pay $227,191.04 was made "by consent". The ordered amount was also less than the total amount claimed by the clients in their email correspondence.

1. I accept (based on the correspondence before the Tribunal at SV-2 pp1-10) that he corresponded and sought to negotiate with clients both before and after orders were made by the Tribunal for payment of monies by the Company. And as noted above, he was still seeking to raise funds or otherwise remedy the situation so that he could finance the ordered amount himself and/or otherwise manage to get the Company on track so that he could complete the jobs for the clients.
2. The position of the Company became more untenable by November 2023; he wrote to the clients the subject of the order (SV-2 p9) saying:

"Due to a number of factors that occurred this year, and the main one being not being able to come to an agreement with you, we are heading straight nose dive.

I will consult with my legal team to see if we still have any options, before deciding on the worst case scenario, and I will come back to you..."

1. The Applicant said that the reference to "my legal team" was to his insolvency advisor.
2. And finally, in January 2024, he wrote to his main clients (the subject of the NCAT Order) saying (SV-2, p11 - extracts):

"It is with a heavy heart that I inform you about a significant decision I've had to make. Regrettably, due to the challenging circumstances we've been facing, I signed the liquidation papers for my company yesterday. This was not an easy decision, especially considering the hope and effort I put into trying to avert this outcome.

In the past year, I've explored every possible avenue to save this business, even foregoing my own salary in the process for the whole year. It's deeply disappointing to see our efforts come to this, and I'm especially saddened by the impact this has on both of you."

1. The Applicant was the breadwinner for his family. He had never been in this position before; the stress of his financial situation, unsuccessful negotiations, and threats of legal proceedings had a toll on him. He said he was regularly seeing a doctor regarding his mental health.
2. He had not engaged a lawyer to assist him with the NCAT proceedings - something he now insists was a mistake in hindsight, even though he was short of funds and didn't know how he would have been able to pay them; at the time, without any such advice, he saw no option but to not mount any defence in the NCAT proceedings, and accept that the claims should succeed.
3. The Applicant gave evidence of his mental health at the relevant times in late 2023 when the NCAT proceedings were under way. The psychological report by Mr McLean (SV-1 pp2-14) surmised that at that time, the Applicant may have been experiencing an adjustment disorder due to the stressors of his failing business. At the time of Mr McLean's assessment, it was his opinion that the Applicant seemed to be a fit and proper person. It noted the following discussion with the Applicant (at [11]-[14] - extracts):

"11. [The Applicant] noted that his decline in mental health and functioning was the accumulative result of his ongoing business-related stressors.

12. He stated that he did not accept that his mental health and functioning was problematic until around January 2023...

13. [the Applicant] reported that he spent most of his waking hours worried about his business problems, and that he found it difficult to control his worry. He remembered feeling hopeless about the future, including a loss of confidence in his capacity to problem solve his business issues. He disclosed often feeling sad and irritable He said that he often laid in bed for hours thinking about work which made it difficult for him to sleep. He stated that it was difficult to focus. [He] also disclosed experiencing transient and attenuated suicidal ideation but decided against killing himself citing his love for his family.

...

15. He advised, "I was such a good problem solver, and this was the only time in my lift I couldn't solve it".

...

29. It's possible that [the Applicant] was experiencing an adjustment disorder throughout 2023 (peaking around July 2023). He was administered the ADNM-20 to determine whether he was currently experiencing adjustment disorder, or symptoms relating to adjustment disorder. He identified his business problems as his core stressors. He did not currently meet criteria for adjustment disorder using both conservative and liberal approaches to diagnosis."

1. I find that although the report was somewhat inclusive regarding whether the Applicant had "adjustment disorder" in 2023, it did conclude at [31]-[33] that his mental functioning had been "significantly impaired" and that he had "poor mental health [which] hindered his capacity to respond to his NCAT proceedings"; in contrast to the date of the report where the Applicant was assessed to be fit and proper and suffering from no mental health problems that would pose an ongoing risk to future clients.

1. There was no relevant dispute that the Company had valid home warranty insurance for 10 projects (A2, [21]). However, there was some discussion at the hearing, in cross-examination, of an email from a client (the subject of the relevant NCAT proceedings) dated 27 July 2023 (SV-2 email) which the Respondent submitted raised issues that the Company had not met its obligations in relation to home warranty insurance.
2. The Applicant told the Tribunal "I was not aware that home building insurance was required at that time". Following further questioning, I understood that the Company always had eligibility for home building insurance within all required limits, having regard to income and the value of the building work undertaken. The Applicant said that he was a subcontractor in respect of that particular job; he was not engaged to build the house, but only to supply panels and do carpeting work under a subcontract with the builder who already had the relevant insurance. He conceded that he did not have his own home warranty insurance for that job. He noted that his licence and insurance credentials were all online, and every case requiring insurance was notified because a project could not be started without it. There was no evidence before the Tribunal that the Company had breached any obligations in respect of home building or home warranty insurance requirements, nor did the Respondent take me to any other materials that established that a breach had occurred.

1. There was no evidence of any other concerns with his business affairs, his capacity to operate a business or meet his obligations. He recalled 2015-2017 as being probably his most profitable years. The Company had no bank loans, but there was a $40,000 bank overdraft facility in place.
2. There was no evidence of any claims made against him in respect of defective or unsatisfactory building work for clients, other than a claim made some years ago in respect of a roof being of a wrong colour, which was evidence provided by the Applicant himself.
3. In respect of his future intentions if a Certificate were to be granted, the Applicant provided a 6 page document he prepared dated 12 December 2024 setting out steps that he was committed to action to ensure that "my next venture does not end the same way", including his personal reflections, and steps relating to mental health, financial management protocols (monitoring, project risk management, debt management), legal compliance, project management standards, professional development, insurance and financial protection, reporting and transparency, remediation and continuous improvement, ethical commitment, and implementation and review.net: A4 [29]/SV-2 p28-32.

1. The HB Act protects consumers in New South Wales by regulating residential building work and specialist work. The HB Act contains provisions to licence and regulate those engaged in residential building work. Relevanty, it prohibits a person from contracting to do any residential building work or specialist work without holding the appropriate contractor licence, supervisor certificate and/or trade person certificate.
2. These proceedings relate to the Applicant's Certificate. It is a "supervisor certificate", which is granted by the Secretary under s 24(1)(b) of the HB Act. An application for a supervisor certificate may only be made by an individual (and not a company): s 24(4).
3. A supervisor certificate authorises the holder to do (and supervise) any residential building work or specialist work that is described in the certificate when it is issued; and the supervisor certificate is subject to "the conditions applicable to the certificate for the time being": s 27.

1. Section 25 of the HB Act provides (relevantly, my emphasis):

25 Issue of certificates

(1) 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, or

(b) the applicant is a mentally incapacitated person, or

(c) the applicant is disqualified by this Act or the regulations from holding such a certificate, or

(d) the Secretary considers that a close associate of the applicant who would not be a fit and proper person to hold an authority exercises a significant influence over the applicant or the operation and management of the applicant's business.

(1A) Without limiting subsection (1)(a), in determining whether an applicant is a fit and proper person to hold a certificate the Secretary is to consider whether the applicant is of good repute, having regard to character, honesty and integrity.

...

1. The central provisions relevant to Issues 1 and 2 are ss 33B(1)(a)(xv), 33B(5) and s 33D(2). References in the HB Act to the "issue" of a certificate extend to a renewal: s 40(1).
2. The first question is whether the Applicant met the requirements of s 33D(2) of the HB Act. It is convenient to explain how the relevant requirements arise under the legislation.

1. Section 33B states as follows (the provisions in issue now being s 33B(1)(a)(xv) and (5)):

(1) An authority (other than an owner-builder permit) must not be issued unless the Secretary is satisfied that--

(a) each relevant person in relation to the application for the authority -

...

(vi) is not subject to any order of the Tribunal that has not been satisfied within the period required by the Tribunal, and

....

(xv) except in relation to an application for a tradesperson certificate--is not at the time of the application a director of or a person concerned in the management of a Chapter 5 body corporate (other than Chapter 5 body corporate resulting from a members' voluntary winding up of the body corporate), and

...

(2) For the purposes of this section, each of the following persons is a relevant person in relation to an application for an authority -

(a) the applicant,

(b) if the applicant is a partnership -

(i) every partner of the applicant, and

(ii) if a member of the partnership is a corporation - every director of that corporation,

(c) if the applicant is a corporation - every director of the applicant.

Note - (5) Subsection (1)(a)(xv) does not prevent the issuing of an authority if, on the basis of information provided to the Secretary by each relevant person, the Secretary considers it is appropriate to issue the authority.

(3) For the purposes of this section, a person has a relevant involvement with a body corporate if the person is at the time of the making of the application for the authority, or was at any time within 3 years before the making of the application for the authority, a director of or a person concerned in the management of the body corporate.

(4) Subsection (1)(a)(v) and (vi) do not prevent the issuing of an authority if the Secretary is satisfied that the person -

(a) has complied with the order of the court or Tribunal after the period required by the court or Tribunal, and

(b) has a reasonable excuse for the failure to comply with the order within that period.

(4A) Subsection (1)(a)(v) and (vi) does not prevent the issuing of an authority if the Secretary is satisfied that, although the person has not complied with an order of the court or Tribunal within the period required by the court or Tribunal, the person made all reasonable attempts to comply with the order.

(5) Subsection (1)(a)(xv) does not prevent the issuing of an authority if, on the basis of information provided to the Secretary by each relevant person, the Secretary considers it is appropriate to issue the authority.

...

1. In these proceedings, the Respondent conceded (R2 at [32]) that the Applicant satisfied s 33B(1)(a)(vi) of the HB Act, stating:

"While it is correct that the Applicant was a named party to the proceedings with reference number HB 23/32337, the orders made by the Tribunal make [the Company] wholly liable to refund the consumer. There appears to have been no formal order made in relation to the Applicant in his own name."

1. I agree with the Respondent that there is no need to consider whether the Applicant complied with s 33B(1)(a)(vi). It is satisfied on its terms. The order was against the Company, and not the Applicant personally, despite him being a party to the proceedings. As a result, there is also no need to consider ss 33B(4) or (4A).
2. The parties' submissions both proceeded on the basis that s 33B(1)(xv) was satisfied on its terms, before consideration of any relevant qualifications or discretions.
3. During the hearing, however, a question arose as to the relevant "time of the application" for the purpose of s 33B(1)(a)(xv), as the Company was placed into liquidation after the Applicant made the renewal application.
4. When s 33B was introduced by the Home Building Amendment Act 2014 (NSW) (2014 Act), s 33B(1)(a)(xv) read:

(xv) except in relation to an application for a tradesperson certificate - is not at the time of the application a director of or a person concerned in the management of an externally-administered body corporate (other than external administration resulting from a members' voluntary winding up of the body corporate), and

1. The Explanatory Note to the Bill which introduced the 2014 Act:

Contractor licences, supervisor certificates, tradesperson certificates and owner-builder permits

Schedule 1 amends Part 3 of the Act (dealing with the issue, cancellation and suspension of contractor licences, supervisor certificates, tradesperson certificates and owner-builder permits) as follows:

(a) by transferring from the regulations to the Act provisions dealing with the grounds on which a person is disqualified from applying for or holding a contractor licence, supervisor certificate and tradesperson certificate and amending those provisions as follows:

(i) by providing that a provision that currently prevents a licence or certificate from being issued to a person who is or was a director or a person involved in the management of a corporation that is under external administration at the time of making the decision extends to disqualify those with such involvement in corporations that have already been wound up,

(ii) by amending the exemptions from the grounds on which a licence or certificate can be refused relating to an applicant who is or was a director or concerned in the management of an externally-administered body corporate, to provide for a members' voluntary winding up only to be exempt and for any other voluntary winding up (such as by creditors) to be a ground to refuse a licence or a certificate,

(b) by providing for consistent considerations for all licensing and certification decisions (that is, for their issue, renewal, restoration and cancellation), including by requiring the cancellation of a contractor licence if an application for a licence by the person would be required to be refused and making similar provision relating to renewal,

(c) by requiring cancelled contractor licences, supervisor certificates and tradesperson certificates, or statements about them, to be lodged with the head of the government agency that administers the Act (the Chief Executive) rather than at an office of that agency, and also requiring such lodgment when licences or certificates are suspended because of failure to insure or the appointment of a controller or administrator,

...

1. Having regard to this Explanatory Note, I am of the view that "at the time of the application" in s 33B(1)(a)(xv) refers to the time of the application process, which begins on the date the application is made and includes the period up to a decision being made in respect of that application. (This is also consistent with the position adopted by the Tribunal in New Energy Technology Solutions Pty Ltd (ACN 677931323) v Secretary, Department of Customer Service [2025] NSWCATOD 22 at [26], a decision handed down after the conclusion of this hearing.)

1. Section 33D(2) is the provision referred to in s 25(1)(a1) above and ties back to s 33B(1)(a)(xv) (emphasis in italics):

33D 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.

(2) Despite section 33B(1)(a)(xiii)-(xvii), the Secretary may issue a supervisor certificate if the Secretary is satisfied that the relevant person took all reasonable steps to avoid the relevant bankruptcy, winding up or appointment of a controller or administrator.

1. Whether an individual "took all reasonable steps" to avoid bankruptcy, insolvency, administration or liquidation was considered by the Tribunal's Appeal Panel in Goodman v Commissioner for Fair Trading [2023] NSWCATAP 260. The Appeal Panel at [20]-[22] adopted the views expressed by Senior Member Montgomery in Poytress v Director General, NSW Fair Trading [2015] NSWCATOD 100, saying:

"20 The appellant said he had taken all reasonable steps to avoid the placement of BCM into external administration.

21 In Poytress v Director General, NSW Fair Trading [2015] NSWCATOD 100 the Tribunal held:

Did Mr Poytress take all reasonable steps to avoid the liquidation of Site Construction?

39 In examining the question of whether a licence holder took 'reasonable steps' to avoid a bankruptcy or insolvency has been considered in a number of decisions of this Tribunal and the former Administrative Decisions Tribunal.

40 In Clarke v Commissioner of Fair Trading, Office of Fair Trading [2004] NSWADT 273 the Tribunal's President referred to a number of earlier decisions under comparable provisions in the Property, Stock and Business Agents 2002 and concluded at paragraphs [9]-[10]:

9 The Tribunal has already dealt with three applications for review arising under the new provisions: McDonald v Commissioner for Fair Trading [2004] NSWADT 124, Smith v Commissioner for Fair Trading [2004] NSWADT 182 and Davidson v Commissioner for Fair Trading [2004] NSWADT 200.

10 It has expressed the following views as to the approach to be taken in examining the question of whether the licence holder took 'reasonable steps' to avoid the bankruptcy or insolvency:

(i) A general inquiry into the wisdom or otherwise of the original financial dealings that ultimately ended in bankruptcy or insolvency is not contemplated by the Act. The point at which the inquiry commences is when the applicant was 'faced with the possibility' of bankruptcy or insolvency (Davidson at [20]) or was 'aware' or 'should have been aware' (McDonald at [21]) of that possibility. The focus is the steps taken to avoid the relevant event (see Smith at [17]) - in cases of the present kind, administration, and later liquidation.

(ii) Subject to (i), in assessing reasonableness the Tribunal must examine all the relevant facts and circumstances. (McDonald at [25]),

(iii) The steps taken by the applicant must be objectively reasonable in the sense that they would be those taken by a 'reasonable person endowed with the knowledge and experience of the [applicant]'. (McDonald at [26-27])

11 To these should probably be added a fourth, though it is obvious enough from the provision:

(iv) The person under notice has the task of satisfying the Commissioner that he or she took all reasonable steps to avoid the insolvency.

22 Thus, before examining the question of whether the appellant had taken reasonable steps to avoid an insolvency, the Tribunal was required to decide the point at which the appellant was faced with the possibility of insolvency or was aware or should have been aware of that possibility. ..."

Issue 1 - Did the Applicant "take all reasonable steps" to avoid the appointment of the liquidator to the Company?

1. Under s 25(1)(a1), the renewal request cannot be granted if the Tribunal is not satisfied as to the matters of which the Tribunal is required to be satisfied by ss 33B and 33D.
2. In respect of those two provisions, the following matters are established, agreed, or not relevantly disputed:

(1) The Applicant is a "relevant person" because he applied to renew his Certificate: s 33B(2)(a).

(2) The Applicant was a director of the Company, and the Company was a Chapter 5 body corporate (other than Chapter 5 body corporate resulting from a members' voluntary winding up of the body corporate); and

(3) The Applicant satisfied the other requirements in ss 33D(1)(a)-(c); and

(4) The appointment of the liquidator on 15 January 2024 was the appointment of an administrator for the purpose of s 33B(1)(a)(xv) of the HB Act.

1. It follows that s 33B(1)(a)(xv) precludes renewal of the Certificate unless I am satisfied that the Applicant took all reasonable steps to avoid the appointment of an administrator to the Company: s 33D(2).
2. The steps taken by the Applicant must be objectively reasonable. The inquiry starts when the Applicant was (or should have been aware) of the possibility of insolvency.
3. The Applicant said that at the time he was informed by Ms Kennedy in early January 2023 of the financial difficulties being faced by the Company, he did not contemplate that the Company would become insolvent or be placed into external administration. Nonetheless, I find that a person in his position should have been aware of the possibility of that occurring if no remedial steps were taken.
4. I find that from that time, the Applicant took the steps that a reasonable person in his position would have taken to avoid the appointment of the liquidator which occurred on 15 January 2024. This is because:

(1) he used an external qualified accountant and bookkeeper (Ms Kennedy) to manage the Company's business books and it was reasonable for him to rely on her advice. She kept proper books, prepared relevant accounts and oversaw his financial affairs, and had done so for many years;

(2) he was therefore in a position to be made aware of the financial situation of the Company (contrast Tyson v Director-General, Department of Finance and Services, NSW Fair Trading [2015] NSWCATOD 45);

(3) he was promptly notified by Ms Kennedy of the financial issues in January 2023;

(4) he agreed, with her assistance, the steps required to try to turn around the Company's financial position - including increasing cash flow, raising funds (selling assets, financing options), cost reductions, staff management, and attempts to renegotiate contractual terms;

(5) he continued to keep in regular contact with Ms Kennedy regarding progress;

(6) those steps (set out in the reasons above at par 28) were reasonable steps to seek to achieve that aim, and they were implemented and actioned;

(7) he did not draw any wages from the Company, nor did his wife;

(8) the Company ceased trading from 1 July 2023 (again, as advised by Ms Kennedy, so he didn't breach his duty as a director that the Company not trade while insolvent);

(9) the 6 month period from 1 July 2023 to January 2024 saw the continuation of steps being implemented:

(a) engaging an appropriately qualified firm with a specialisation in insolvency to advise on any further measures, within a reasonable time (and there's no suggestion Mr Sierocki was unskilled, or unqualified to do so);

(b) acting upon the advice of that firm, and with the continuing assistance of Ms Kennedy, including by openly advising his clients of the difficulties and his cessation of trading (which appears to have prompted the filing of recovery claims);

(c) continuing attempts to renegotiate contracts before and after the NCAT proceedings, until it finally became apparent that nothing further could be done;

(d) entering into payment arrangements with creditors where possible;

(e) seeking additional financing for the business;

(f) seeking to raise other personal funds to loan to the Company; and

(g) selling his family home (with settlement and relevant payments occurring after the liquidator was appointed).

(10) he ensured that all of the Company's taxation obligations were paid.

1. I find that the Applicant did not unduly delay or frustrate any process of identifying or implementing these reasonable steps, before ultimately appointing the liquidator to the Company on 15 January 2024.
2. The Respondent did not point to any particular action that should have been taken at any particular time that was not. In congruence with Ms Kennedy's letters, I find that all financial strategies for turning the company around were considered, a plan was established, the steps in the plan were both reasonable and appropriate, and they were actioned within a reasonable time (as far as could be achieved); notwithstanding that, ultimately, it was all to no avail.
3. I therefore find that the steps taken by the Applicant were those that would be taken by a reasonable person endowed with the knowledge and experience of the Applicant to avoid the appointment of the liquidator, that s 33D(2) has been satisfied, and that accordingly the grant of the Certificate is not precluded by s 33B(1)(a)(xv).

1. Because of my conclusion on Issue 1, there is no need to consider whether other discretionary factors exist that make it otherwise appropriate to issue the authority for the purpose of 33B(5). But, if it were necessary to do so, I would have concluded in favour of the Applicant based upon the same facts and analysis above.

Issue 3 - Is the Applicant a "fit and proper person"?

1. Under s 25(1)(a), an application for a supervisor certificate "must be refused" if the Tribunal is not satisfied that the applicant is a fit and proper person to hold such a certificate.
2. "Fit and proper" isn't defined in the HB Act, but s 25(1A) requires the Tribunal to consider (without limitation) "whether the applicant is of good repute, having regard to character, honesty and integrity".
3. The term "fit and proper person" has been considered by this Tribunal and in other jurisdictions in numerous cases:

(1) In Hughes and Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127 at 156-7, the High Court said that fitness and propriety involve three things: honesty, knowledge and ability.

(2) In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J at [40] said:

"In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails."

(3) It is generally accepted that fitness and propriety is to be determined by reference to the activities in issue and is to be gauged in light of the nature and purpose of the activities that the person will undertake. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380; [1990] HCA 33, Toohey and Gaudron JJ explained that:

"The expression 'fit and proper person', standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, or whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive, but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question."

(4) A person's fitness and propriety for a particular role is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184 at [40].

1. In the context of an application under the HB Act, in Poytress v Director General, NSW Fair Trading [2015] NSWCATOD 100, Senior Member Montgomery stated at [82]:

"The issue of whether a person is fit and proper due to past conduct is a matter of judgement. In considering that issue the Tribunal is required to take into account the nature and seriousness of the original conduct, any events relevant to an assessment of the Applicant's fitness which have occurred since then, the candour with which the Applicant has approached the issue of past conduct, the Applicant's explanation of the conduct, the impact of the effluxion of time, and the Applicant's present circumstances and reputation."

1. The assessment of fitness and propriety must be viewed in light of:

(1) the activities in which the person is or will be engaged: Re Percival and Australian Securities Commission [1993] AATA 196; (1993) 30 ALD 280 at 290; and

(2) the role the person is to undertake: Taouk v Director General, NSW Fair Trading [2016] NSWCATOD 41 at [46].

1. Public interest considerations may also play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65 at [37].
2. In Trombetta v Commissioner for Fair Trading [2018] NSWCATOD 167, the Tribunal noted at [67] that:

"... The licensing requirements of the [Motor Dealers and Repairers] Act are not imposed by way of punishment for those convicted of crimes. They are imposed for the protection of the public."

1. It has been observed in numerous decisions of this Tribunal that the HB Act is consumer protection legislation. In Butler v Commissioner for Fair Trading [2017] NSWCATAD 138, Senior Member Scahill noted at [53]:

"Fitness and propriety are flexible concepts. A consideration of whether a person is fit and proper involves an assessment of their knowledge, honesty and ability in the context of the role they are seeking to undertake. In Obradovic -v- Commissioner for Fair Trading, Office of Fair Trading (GD) [2006] NSWADTAP 18 the Appeal Panel agreed that a formerly licensed building contractor should have his application for a new licence refused, despite there being no evidence that he was dishonest or of bad repute. Evidence that he had been extremely tardy and intransigent in dealing with customer complaints, and the regulator, when he held a licence, was sufficient to conclude that he was not fit and proper for the role. In that case, the licensing scheme was among other things, designed to protect consumers and to provide them with adequate means of redress against licensed contractors."

1. The report of Mr McLean concluded that the Applicant was currently a fit and proper person. I accept that from a mental health perspective, that is the case. However, fitness and propriety - as noted in the cases above - requires a wide assessment of alI relevant factors.
2. In respect of s 25(1A), I consider the Applicant to be of good repute, having regard to character, honesty and integrity. In this regard:

(1) I found the Applicant to be a credible witness. He answered questions openly, and his testimony appeared consistent. He also struck me as a man of integrity, very aware of the consequences to others, and wanting to "make it up" to those clients who had been affected by what occurred even though the Company, and not him personally, was liable.

(2) There was nothing that suggested the Applicant to be dishonest or of bad repute. On the contrary, there is positive evidence of his good repute, and various character references before the Tribunal.

1. The Applicant has accepted that he was responsible for overseeing the affairs of the Company, including keeping himself informed of the Company's financial position and performance, and ensuring the Company was able to pay its debts on time. He engaged an accountant against whom no issues have been raised by the Respondent as to their qualifications or competence. Nor is there any suggestion that his reliance on Ms Kennedy was misplaced, that accurate accounts were not prepared, or that he was not provided with sufficient information to make a valid assessment of the Company's financial position at the time. Further, he ensured his tax obligations were paid.
2. The Applicant, as noted above, ceased trading by the Company from 1 July 2023. I have found, as noted above, that the Applicant took all reasonable steps to try to avoid administration.
3. The Applicant has no history of defective workmanship, or other questionable building practices. The claims that were the subject of the NCAT proceedings have been fully and adequately explained above.
4. He said that he is committed to ensuring that "this never happens again and that I pay particular attention to reducing risks to the consumer" (A6 [26]). I have referred above to the comprehensive list of steps that he would address to ensure he was not placed in a similar situation in any future business undertaking and find them to be appropriate.
5. The Applicant has taken steps to address his mental health issues - I find that he was clearly under stress not unsurprisingly caused by the financial position and his unsuccessful attempts to rectify matters for the Company and his clients; whether or not he was officially diagnosed with, or suffering from, a particular mental health disorder. There are references to that stress in the letters from Ms Kennedy, who advised him throughout the relevant period. There is no dispute that Mr McLean's report revealed no current mental health concerns.
6. The Applicant had a successful business in the past, and was very proud of the reputation of his construction methods.
7. The Applicant has no history of questionable business practices, where he has followed a pattern of liquidating entities in order to avoid claims. I am satisfied as to the cause of the financial difficulties, and of his efforts to remedy them.
8. I accept that the facts above establish that the Company failed to comply with the order, and that the Applicant was a director of that Company. I accept that the Company failed to complete work under contract and that the end result of the liquidation of the Company caused significant detrimental to consumers, being both clients and other creditors of the Company. It has also been detrimental to the Applicant. But the circumstances are explained above. It is an unfortunate reality that many small businesses fail, and the COVID-19 pandemic clearly exacerbated challenging financial conditions for many of them.
9. Finally, there is insufficient evidence for me to conclude, on the balance of probabilities, that the Applicant caused the Company to breach its legal obligations to obtain HBCF insurance in any specific case.
10. Having regard to all the above matters, the Tribunal is satisfied that the Applicant is a fit and proper person to hold a Certificate, and that his re-entry into the building industry does not place the public at risk.

1. The correct and preferable decision is to grant the application for renewal of the Certificate because the requirements of Section 25 of the HB Act have been met:

(1) Section 25(1)(a) of the HB Act is met because the Tribunal is satisfied that the Applicant is a fit and proper person to hold a Certificate.

(2) Section 25(1)(a1) of the HB Act is met because the Tribunal is satisfied the Applicant met the requirements of s 33B and s 33D in respect of the Company:

(a) I am satisfied for the purpose of s 33D(2) that the Applicant took all reasonable steps to avoid the appointment of an administrator (being the liquidator, who was appointed on 15 January 2024);

(b) As a result, s 33B(1)(a)(xv) does not apply to preclude the issue of the Certificate and the other requirements of s 33B are satisfied; and

(c) There is no need to consider, in the alternative, s 33B(5).

(1) The decision under review is set aside.

(2) In substitution, the supervisor certificate should be issued.

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.