Vitogiannis v Commissioner for Fair Trading, Department of Customer Service

1. Eight of the fourteen building projects were at the one site at Lilyfield, and two were at the one site at Abbotsford. Relevant to the Respondent's submissions, it was noted that only the Kenthurst site, Ashbury site and the 5th, 6th and 8th of the building projects at the Lilyfield site were subject to a Development Approval (DA) or Complying Development Certificate (CDC).
2. Additionally, in a Statement dated 10 August 2020 the Applicant provided details of his experience in residential and retail/commercial/industrial works prior to his supervision by Mr Ede, being "highlighted projects and experience that I have been personally responsible and have undertaken in my career to date that all have a high emphasis on structural construction". There were 7 residential works and 15 retail/commercial/industrial works identified by address. The Applicant identified his role in the residential works as including site and project management, oversight and supervision, submissions to council, selection and implementation of trade works in both complete and partial demolitions. The Applicant identified his role in the retail/commercial/industrial works as including redevelopment, renovation and remodelling of retail and commercial tenancies, including boutique and luxury clients, heritage buildings involving heritage submissions, and project management including as main contractor.
3. The Applicant provided reference letters from contractors to the building projects verifying the scope of works undertaken by him: 1. Luke Tsougranis of Luke Tsougranis & Associates, Consulting Structural and Civil Engineers, provided a verification statement dated 10 April 2020 in relation to the Lilyfield site, confirming that "the works undertaken by you for all structurally related matters were done so to our satisfaction", and that structural certification was provided for "all completed works that you undertook". 2. Damien of Harbourside Carpentry & Construction, Licence #147341C provided a statement dated 14 April 2020 in relation to the Lilyfield site, for which his company supplied site installation labour, confirming that the Applicant "was the site managed and was a hands on operator, working with our team to undertake and install all works". 3. Jason Lagden of Waterproofing Specialists, Licence #300093C, provided a letter dated 16 April 2020 in relation to the Lilyfield and Maroubra sites, confirming that the Applicant was the site supervisor and that he "witnessed Jim being both hands on with an array of building works, related to structure, services and finishes", and "endorse[d] his capacity and ability". 4. Sebastian Bonaccorso of Boncor Constructions Pty Ltd, Licence #106651c provided a letter dated 21 April 2020 in relation to the Kenthurst site, at which his company was the Principal Builder, subcontracting Inset Group with the Applicant as the principal contact. Mr Bonaccorso stated that the Applicant "is a very experienced and well structured individual. He is able to assess, undertake and delegate a variety of Building works and delivers an excellent result… We have no hesitation in confirming Jim's ability as a suitable and experienced person that can undertake any type of residential building work". 5. Steve Dayoub of Maxisteel Fabrication (Aust) Pty Ltd, Licence #207172C provided a letter dated 14 April 2020 in relation to the Lilyfield and Ashbury sites. Mr Dayoub stated that "Jim has been the main contact for us… On site, Jim was responsible for the setting out and construction of new structural steel staircase at 38 Grove Street, Lilyfield and the structural supports for both projects to house balustrade, handrails and fencing. Whilst on site, Jim was overseen by Joshua Ede and both men instructed and assisted with the placement and installation works. It is a pleasure to deal with Jim and he has very detailed knowledge of all construction methods and both BCA and Australian Standards when it relates to our work". 6. Seb Bzishvili of Chromatech Painting Solutions, Licence #216115C provided a letter dated 18 April 2020 in relation to the Lilyfield, Ashfield, Maroubra and Ashbury sites, at which "we have been instructed and supervised by Jim Vitogiannis. He has been responsible for all site day to day activities, ensuring that our Painters follow correct OH&S procedures, providing all necessary access equipment and coordinating other building trades. I have witnessed Jim undertake a variety of building and construction works on all of the projects that we have been involved with..." 7. George Gioulis of GLG Electrical Installations, Licence #EC41215 provided a letter dated 27 April 2020 in relation to "a number of project sites" at which they had undertaken residential electrical works. Mr Gioulis stated "Jim is a very experienced person, with good knowledge of all trades and construction methods. He has been fully involved not only with the electrical works that we have undertaken, but in the process of doing our works, I have witnessed him physically undertake construction of the following… Jim has the ability to be both hands on the job and manage trade and materials so that the site works flow and projects are dealt with within the required sequence and schedule… I would not hesitate to endorse Jim's experience and knowledge in terms of the residential construction that I have witnessed him undertaking." 8. Shu Jiang Ling of SJ Trading International Company Pty Ltd, Licence #247597C provided a letter dated 4 May 2020 in relation to the tiling works his company had undertaken at the Lilyfield, Ashbury, Kenthurst and Abbotsford sites, confirming that the Applicant had been their principal contact on site, and had overseen and instructed tilers on site.
4. The Applicant provided an additional letter from his referee, Mr Ede, dated 4 May 2020. Mr Ede's letter clarified the following: In all of the project works and experience that l have supervised Jim Vitogiannis over the last 24 months, there has been a high level of structural construction. … Written and listed within the application forms were details on the projects and experience that Jim has gained under my supervision. lt is stated in this experience that Jim has undertaken site structural and construction works. Jim has been involved in a variety and multitude of site construction works, which include structural and cosmetic elements.
5. The Applicant gave oral evidence and was cross examined. There were no other witnesses called. The Applicant's evidence at hearing supplemented the written descriptions of the works undertaken by him at each of the six nominated sites, with reference to detailed pictures of the building works at each site. The Applicant was shown to be both undertaking the work himself, and supervising or overseeing trades, including those individuals who had provided him with references. He told the Tribunal that he relied on tradespeople's' expertise. He gave specific evidence with reference to the structural works undertaken at each of the six nominated sites.
6. The Respondent did not materially dispute the Applicant's personal evidence, either written or oral, but rather focussed on the effect of that evidence with reference to the Instrument, or the weight it should be given by the Tribunal. The Respondent did not dispute the evidence in Mr Ede's Referee's Statement in relation to the experience obtained by the Applicant at the six nominated sites from 22 January 2018 to 12 March 2020.
7. The Respondent sought to diminish the value of the references referred to at [31] on the basis that they had not provided a formal "Referee's Statement" as Mr Ede had, and each individual referee did not hold an endorsed contractor licence or qualified supervisor certificate in residential building work and therefore could not confirm the Applicant's experience. I agree that they cannot verify the Applicant's experience as a whole in accordance with the Instrument, but disagree that their references do not assist with the assessment of the Applicant's competency for the licence. The Instrument requires a formal Referee's Statement, which was provided by Mr Ede. Each of the additional references (as identified at [31]) individually supports various parts of the Applicant's evidence of his experience, which is useful to the Tribunal in verifying the Applicant's experience at the relevant sites as outlined in Mr Ede's Referee Statement and for the periods claimed by the Applicant. The additional references are also useful in supporting the Applicant's evidence and Mr Ede's endorsement that the Applicant is sufficiently knowledgeable and capable to supervise the wide range of trades involved in building and construction of residential dwellings.
8. The Applicant's oral and written evidence of his roles and responsibilities at each of the 6 nominated sites was supported by photographic evidence and the Referee's Statement dated 18 March 2020. They were also supported by the additional references from Mr Ede and the other tradespersons he worked with at those sites as identified above at [31]. I accept the Applicant's evidence and give it significant weight. I also accept Mr Ede's Referee's Statement and additional reference provided, and give it significant weight. In that context I consider the additional references to be corroborative of the Applicant's evidence and afford them reasonable weight.

The Respondent's submissions

1. The Respondent submitted that the Applicant's licence refusal was justified on the following bases: The issuing of a licence for general building work communicates to the public that the holder is able to supervise all trades required to complete any type of dwelling in compliance with relevant standards, and professionally. The overall experience demonstrated by the Applicant is limited to remedial, renovation and refurbishment work to existing dwellings. There was no, or very little, demonstration of the Applicant supervising or doing medium to large construction projects, for example constructing new dwellings or major extension work. Overall, the verified scope of work for all sites is primarily remedial, renovation and refurbishment work on existing dwellings. The Respondent submits that such experience, although valuable, is insufficient to warrant the issuing of a contractor licence in the specialised category of building.
2. The Respondent submitted that the Applicant's experience at the six nominated sites was deficient because the verified scope of work for all sites was primarily remedial, renovation and refurbishment work on existing dwellings, and this was not enough where a "wide range of building construction work" was required. The Respondent submitted that the "wide range of building construction work" required in the Instrument had to include the construction of new buildings, not just alterations to preexisting buildings, and had to include significant structural works.
3. The scale of the construction work undertaken was also submitted to be deficient. The Respondent relied on aerial images of the sites, whether the site was subject to a DA/CDC and whether Home Warranty Insurance was required to support submissions that the works relied on by the Applicant were not of a large enough scale and therefore not a "wide range of building construction work".
4. The Respondent submitted that an overlap in the experience dates relied on by the Applicant indicated that the Applicant had not fulfilled the "minimum two years" criteria. The period claimed for three of the eight Lilyfield contracts overlapped with the period claimed at the Kenthurst site, for 59 days' experience.
5. In relation to each of the sites individually, the Respondent submitted the following: 1. The Lilyfield site works were mainly non-structural, and a DA/CDC was only relevant for three of the eight contracts, being the work related to the new steel stair structure, renovation to ground and first floors, and external landscaping works. Aerial imaging confirmed no major structural changes to the dwelling at the site. 2. Most of the works at the Ashfield site were non-structural, limited to internal renovation to an existing dwelling. Aerial imaging of the Ashfield site throughout the period claimed confirms that no major structural changes were made to the dwelling at the site. 3. Work at the Kenthurst site, including construction of an outbuilding and a roof structure over the rear balcony were not visible in aerial imaging. 4. Works at the Abbotsford site were limited to internal renovation works requiring no major changes to the structure of the dwelling. 5. At the Maroubra site, aerial images for the period support the Applicant's claim that remedial work was undertaken to the roof of the dwelling. However the work claimed at the Maroubra site was remedial work requiring no structural construction work. 6. A search of the DA for the Ashbury site confirms that it was issued in 2018 for alterations to the garage. The Respondent submitted that the work carried out at the Ashbury site during the claimed period was limited to remedial and refurbishment works.
6. The Respondent submitted that the additional references did not confirm the Applicant's experience on the required referee statement forms, because (other than Mr Ede) none of them held an endorsed contractor licence or qualified supervisor certificate in residential building work, and that they each did not have the necessary knowledge to establish the competency and experience of the Applicant. Their consideration should be limited to verifying the experience at the relevant sites as outlined in Mr Ede's Referee Statement and for the periods claimed by the Applicant.
7. The Respondent referred to Locking v Department of Finance and Services [2013] NSWADT 239 (Locking) where the Tribunal stated: "…[E]xperience in carpentry and joinery work is not the equivalent of "a wide range of building construction work" as required by the Instrument. Carpentry and joinery work is a sub-category of building. It is only one aspect of the work required to be done in order to complete the construction of a residential dwelling… A building contractor has the overall responsibility for a site and must be able to supervise all of the trades required to complete any type of dwelling. Additionally, a builder must be able to determine that all trades have complied with all standards and requirements. There are many gaps in [the Applicant's] trade supervisory experience and therefore his understanding of certain trades. Those trades include flooring, bricklaying, stonemasonry, wet plastering, painting, decorating, general concreting, tiling, demolishing, fencing, glazing and waterproofing. A building contractor is also able to contract with the public, and must therefore be able to negotiate a contract, quote for a project and co-ordinate the trades to be able to complete the project on time and within budget. He or she must also be able to negotiate and discuss the jobs with council and private certifiers to ensure that the work is passed fit when appropriate."
8. The Respondent submitted that the Applicant had demonstrated ability to undertake non-structural internal renovation and remedial works, with some limited structural components, but although renovation and remedial works formed part of the definition of 'residential building work' they do not of themselves constitute the required 'wide range of building construction work' prescribed by the Instrument.

"Wide range of building construction work"

1. The Instrument requires the Applicant to have undertaken a "wide range of building construction work". The Respondent's submissions are to the effect that a "wide range" should include new buildings and structural works, or at the very least, extensions or renovations to current dwellings which are significant enough to warrant development approvals and/or home warranty insurance, and demonstrably change the aerial view of a dwelling. I disagree. The requirements in the Instrument are deliberately broad, and I agree with the Applicant's submission that the Instrument does not specify what weighting and value to be ascribed to "structural experience" as opposed to refurbishment or renovation work for residential dwellings, or how that would be calculated. I also agree with the Applicant's submission that the process and methodology of construction may be more complex for an existing building, renovation or refurbishment than in simply erecting a new building.
2. Aerial photographs of a site, as relied on by the Respondent, are not sufficient evidence that the scope or scale of works undertaken at that site was minimal, as extensive works - structural and non-structural - can be undertaken within the present footprint of any dwelling with minimal observable alteration by aerial photography. I agree with the Respondent that the obtaining of Home Warranty Insurance and/or Development Approvals are good indicators of the scale of the works being undertaken, but they are not the only indicator. The Lilyfield site provides a good example of why the Respondent's evidence and submissions are not persuasive. Five of the eight separate projects at the Lilyfield site did not require a DA because initially the works were limited in scope to remedial and general upgrades, and whilst there were slight additions to the envelope of the property, including realignment of balcony stairs, the aerial footprint remained largely the same. The breadth and scopes of work increased until a DA was sought after about halfway through the eight projects. Whilst individually each of the eight projects at Lilyfield may be considered minor, limited remedial or renovation works, when viewed cumulatively the building construction works undertaken by the Applicant at the Lilyfield site would constitute a "wide range".
3. The scale of the works is only one measurement which may be relevant to the "wide range" referred to in the Instrument. Other measurements could include the number and variety of different trades involved, the materials used, the construction methods employed. More importantly, as referred to in Locking, is the Applicant's ability and knowledge with reference to the "wide range of building construction work": A building contractor has the overall responsibility for a site and must be able to supervise all of the trades required to complete any type of dwelling. Additionally, a builder must be able to determine that all trades have complied with all standards and requirements.

Conclusions

1. I accept the Respondent's submission that some structural experience is a useful component in determining whether an individual's experience constitutes a "wide range of building construction work". On my review of the Applicant's evidence I consider that the Applicant has demonstrated experience in making structural changes at each of the sites. The Applicant has also provided undisputed evidence from a licenced referee, Mr Ede, that the works undertaken by the Applicant in the two year period involved "a high level of structural construction", which I have given significant weight. Further, the Applicant's structural experience at the Lilyfield site was approved by the site's structural engineer, which supports the other evidence of the Applicant's ability to do and supervise structural works for residential dwellings.
2. The Respondent disputed that the Applicant had undertaken the requisite two years of experience with reference to a calculation of individual days worked from Mr Ede's Referee's Statement. However Mr Ede's written evidence was to the effect that the Applicant had been supervised by him over a continuous 24 month period and for each of the building sites listed in his Referee's Statement. I accept Mr Ede's evidence that the Applicant had been supervised by him over a continuous 24 month period.
3. The Respondent submitted that as the Applicant had not provided Referee Statements for the additional residential and commercial experience prior to 22 January 2018 as referred to in his Statement of 10 August 2020, it should not be considered by the Tribunal because the experience has not been verified by an appropriately qualified and experienced person. This principle was expressed in Limberis as "an applicant alone cannot verify their own experience" and this was reinforced in the recent decision of Price v Commissioner for Fair Trading [2020] NSWCATOD 93 at [55]. I agree with that submission and accordingly have not taken into account the 7 additional residential projects and 15 commercial projects referred to by the Applicant in my consideration of whether the Applicant has the relevant type of experience in a "wide range of building construction".
4. I have given reasonable weight to the additional references provided for the Applicant in the context of each of their respective experience at the six nominated sites, and their individual trade expertise. Taking into consideration those references together with Mr Ede's evidence, I conclude that the Applicant is able to manage and supervise the wide range of trades involved in residential building works.
5. Having reviewed the photographs of the building projects at each of the six nominated sites in conjunction with the Applicant's written and oral evidence, it is clear that the Applicant has undertaken a wide range of building construction work in the past two years. I accept Mr Ede's endorsement of the Applicant's suitability to hold the relevant licence, having undertaken the two years' experience under his supervision in a wide range of building construction work. With the passage in Locking referred to above at [44] in mind, there is abundant evidence before the Tribunal to satisfy me that the Applicant has the requisite skill, experience and ability for the relevant licence. Whilst the requirements expressed in the Instrument are only a guideline, there is no need to depart from them in determining these proceedings.
6. I am also satisfied that the applicant's qualifications are such as enable him to do, or to supervise, the work for which the endorsed contractor licence is required. In these circumstances, I am satisfied that the applicant has the qualifications required by s 33D(1)(a), when read with s 33C(1)(b). I find that the evidence establishes that the applicant has had experience of such a kind and for such a period as it considers would enable the applicant to do, or to supervise, the work for which the endorsed contractor licence is required, within s 33D(1)(b). I am also satisfied, from the evidence, that the applicant is capable of doing or supervising work for which the certificate is required within s 33D(1)(c), and the Respondent did not make any submissions to the contrary.
7. Accordingly, the correct and preferable decision is for the Tribunal to set aside the Respondent's decision to refuse the Applicant's application for an endorsed contractor licence under the HBA, and to grant the licence.

Orders 1. The respondent's decision to refuse the applicant's application for a contractor licence, endorsed to show that it is the equivalent of a supervisor certificate, is set aside. 2. In substitution for that decision, the Tribunal decides that the respondent is to issue the applicant with a contractor licence, endorsed to show that it is the equivalent of a supervisor certificate, within 28 days of the date of this decision.

Endnote

1. Typographic error in original form read "02/10/2019" 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: 24 December 2020