Wilson v Secretary, Department of Customer Service [2026] NSWCATOD 6;

1. On 11 December 2024, the Building Commissioner also made a decision concerning the Company. The decision was to;

(1) cancel the Company's licence as a contractor; and

(2) disqualify the Company from being the holder of any authority for a period of 3 years.

1. The Tribunal has jurisdiction under s 83B(3) of the HBA to review certain decisions of the Respondent. It says:

"(3) A person aggrieved -

(a) by a decision made by the Secretary under Part 4 (Disciplinary proceedings) to impose a penalty or to cancel or suspend an authority, or

(b) by any other decision made by the Secretary under that Part that is prescribed by the regulations,

may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of that decision".

1. Section 63 of the Administrative Decisions Review Act 1997 (NSW) ("ADR Act") sets out the Tribunal's powers of review in the following terms:

"63 Determination of administrative review by Tribunal

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal".

1. There was no dispute that the decisions of the Respondent the subject of these proceedings were decisions that fell within s 83B of the HBA and that the Tribunal had jurisdiction to review the decisions under s 63 of the ADR Act.

1. The Company carried on the business of roofing installation at all relevant times. Mr Wilson is and was at relevant times its sole director and secretary. He was also one of the shareholders of the Company.
2. Mr. Wilson had commenced business as a sole trader in 2006.
3. In 2019, he procured the incorporation of the Company through which business was to be carried on.
4. In 2021, the Company obtained a contractor's licence for roof plumbing and Mr Wilson held a certificate 3 in roof plumbing.

1. In October 2021, the Company carried out roof installation work for a customer in Dee Why. The works were delayed because of problems with materials, variations, adverse weather and the Company's work commitments.
2. A dispute arose between the customer and the Company. The customer then asked Mr. Wilson to stop work after the work had commenced. The dispute came before the Tribunal.
3. The Tribunal found, among other things, that the customer had repudiated the contract between himself and the Company and that the Company had accepted the repudiation. The Tribunal also made an order for Mr Wilson on 23 February 2023 to carry out certain rectification works.
4. Mr Wilson attempted to contact the customer to gain access in order to carry out the works. The customer did not respond. Subsequently, Mr Wilson observed that the work had been done by someone else.
5. The customer then renewed proceedings in the Tribunal. The Company did not attend the proceedings on the hearing date. The Tribunal on 26 July 2023 made an order that the Company pay the customer $12,825.60 for the relevant rectification works. That payment was made.

1. Between November 2021 and December 2021, the Company was engaged to carry out work for a customer resident in Forestville.
2. After the customer approved the scope of the work, Mr. Wilson ordered materials and commenced preparatory work in reliance on the customer's instructions.
3. After the materials had been procured, the customer altered his position and declined to proceed with the installation. The customer did not want battens installed in or on the roof but Mr Wilson had already procured and paid for the battens.
4. The customer then initiated proceedings against the Company. The Company did not appear at the proceedings.
5. The Tribunal on 17 May 2022 found that the customer had paid for 30 metal bracings but only one was used. The Tribunal, on determination of the proceedings, required the Company to pay the customer a sum of money ($3,480) referable to the unused materials. Subsequently, Mr Wilson refunded the disputed amount referable to the unused materials.

1. From February 2023, the Company was engaged by a customer to carry out work at her residential property in Jindabyne.
2. Mr Wilson quoted for the work and accepted a 50% deposit. His evidence was that the customer offered the deposit on account of the particular expenses Mr Wilson would incur including travel and accommodation costs for workers. An email from Mr Wilson to the customer described the deposit as "required" to be paid.
3. Before the work was complete, the customer instructed Mr Wilson to stop work. She expressed concern about what she said was the lack of guidance from Mr Wilson to workers on site as well as what she said was the poor quality of the work and the apparent lack of knowledge on the part of the workers. She also said that Mr Wilson did not address her concerns. She refused to allow him to access the site. Mr Wilson says that he was ready to deal with outstanding issues and complete the job but was prevented from doing so by the refusal of access.
4. On 16 May 2023, a report identified defective work. Another report of 29 May 2023 also identified defective work. Mr Wilson disputed some of the claims of defective work. He also said that the owner had refused offers to attend her property and rectify defective works.
5. On 19 July 2023, an inspector issued the Company with a rectification order but that order was rescinded on 17 August 2023. This was because the customer did not believe that the Company would undertake the work and did not grant access to her property.

1. The Tribunal found that Mr Wilson had carried out certain work for a customer from Denistone East. The Tribunal made an order on 24 August 2021 requiring Mr Wilson to pay the customer a sum of money ($10,000), following a finding of breach of warranties. Mr Wilson did not appear at the hearing.

1. The Applicants had not taken out insurance for the work described above and had a history of undertaking work without insurance.
2. There were no written contracts with the customers described above in evidence. The explanation the Applicants provided was that circumstances of urgency prevented the entry by the parties into written contracts.
3. Mr Wilson and the Company said that they had since put systems into place to ensure compliance with the requirements for written contracts and insurance.
4. In some cases, the Company or Mr Wilson were subcontractors on larger projects carried out by a head contractor. In other cases, they were not. Mr Wilson said that where they were subcontractors, they relied on the head contractor's insurance. He said that the Company had been transitioning from carrying out smaller work to larger work as subcontractor.
5. The Building Commission made the decisions described at [5] and [6] above on 11 December 2024.
6. Following internal review, the decisions were affirmed on 29 January 2025.
7. On 26 February 2025, the Applicants sought administrative review by the Tribunal.
8. The Applicants sought a stay on the relevant decisions. The Tribunal refused the stay on 25 March 2025.

1. The application dated 25 February 2025 and filed with the Tribunal on 26 February 2025 records both Mr Wilson and the Company as Applicants.
2. The matter was heard on 1 December 2025.
3. Following hearing of the matter, the Tribunal made orders on 1 December 2025 permitting each party to make further written submissions after the hearing. Both parties did so. In determining the matter, I have considered their further written submissions, along with their oral submissions made at the hearing and the written material before the Tribunal at the hearing.

1. Sections 62 of the HBA allows the Respondent to take certain disciplinary action against the holder of an "authority", if any ground on which disciplinary action may be taken has been established. It sets out what the disciplinary action can be. It says:

"62 Disciplinary action that may be taken by Secretary

(1) If, after compliance with this Division, the Secretary is satisfied that any ground on which disciplinary action may be taken against the holder of an authority has been established in relation to the holder, the Secretary may do any one or more of the following -

(a) determine to take no further action against the holder,

(b) caution or reprimand the holder,

(c) make a determination requiring the holder to pay to the Secretary, as a penalty, an amount not exceeding $11,000 (in the case of an individual) or $50,000 (in the case of a corporation) within a specified time,

(d) vary the authority held by the holder, by imposing a condition on the authority, including a condition requiring the holder to undertake a course of training relating to a particular type of work or business practice within a specified time,

(e) suspend the authority for a period not exceeding its unexpired term,

(f) cancel the authority,

(g) disqualify the holder, either temporarily or permanently, from being any one or more of the following -

(i) the holder of any authority, or any specified kind of authority,

(ii) a member of a partnership, or an officer of a corporation that is a member of a partnership, that is the holder of an authority,

(iii) an officer of a corporation that is the holder of an authority.

(2) If the holder of the authority is a partnership or corporation, the Secretary may take a disciplinary action specified in subsection (1) against the following individuals -

(a) a member of the partnership,

(b) an officer of a corporation that is a member of the partnership,

(c) an officer of the corporation.

(3) The Secretary may take disciplinary action under subsection (2) in addition to, or instead of, taking disciplinary action under subsection (1).

(4) This Division applies to disciplinary action taken under subsection (2) in the same way as it applies to disciplinary action taken under subsection (1) and references in this Division to the holder of an authority extend to the individuals referred to in subsection (2)".

1. The disciplinary action described above can be taken against the holder of an "authority". An "authority" is defined in Schedule 1 of the HBA to mean:

"(a) a contractor licence (whether or not an endorsed contractor licence),

(b) a supervisor or tradesperson certificate,

(c) an owner-builder permit".

1. There was no dispute that Mr Wilson had held a "supervisor certificate" and the Company had held a "contractor licence" at all relevant times. Consequently, each held an "authority" and as such, was subject to disciplinary action under s 62 of the HBA, if the evidence established that there was a ground on which disciplinary action may be taken.
2. Section 57 sets out grounds for taking disciplinary action against the holder of a supervisor certificate. It says:

"57 Grounds for taking disciplinary action against holder of a supervisor or tradesperson certificate

The Secretary may take disciplinary action under section 62 against the holder of a supervisor or tradesperson certificate on any of the following grounds -

(a) that the holder is not entitled to hold the certificate,

(b) that the holder is not a fit and proper person to hold the certificate,

(c) that the holder is guilty of improper conduct,

......".

1. Section 56 of the HBA sets out various grounds for taking disciplinary action against the holder of an "authority" which is a "contractor licence". It says:

"56 Grounds for taking disciplinary action against holder of a contractor licence

The Secretary may take disciplinary action under section 62 against the holder of a contractor licence on any of the following grounds -

(a) that the holder is not entitled to hold the contractor licence,

(b) that the holder is not a fit and proper person to hold the contractor licence,

(c) that the holder is guilty of improper conduct,

(d) that there is not a sufficient number of nominated supervisors to ensure -

(i) that the statutory warranties for residential building work are complied with, or

...... ".

1. What constitutes "improper conduct" is described in s 51 in the following terms:

"51 Improper conduct: generally

(1) A holder of a contractor licence who is authorised by the contractor licence to contract to do residential building work or specialist work, or a holder of a supervisor or tradesperson certificate, is guilty of improper conduct if the holder -

(a) commits an offence against this Act or the regulations or section 307A or 307B of the Crimes Act 1900, whether or not an information has been laid for the offence, or

(b) in the course of doing any work that the licence or certificate authorises the holder to do, fails to comply with the requirements applicable to the work made by or under this or any other Act in respect of the work, or

(c) breaches a statutory warranty, or

......

(2) The holder of a contractor licence is guilty of improper conduct if the holder -

(a) without reasonable cause, breaches a contract to do any work that the contractor licence authorises the holder to contract to do, or

(b) without reasonable cause, does not comply with the requirements of a rectification order under Part 3A, Division 2 or Part 3B before the date specified in the order, or

(c) does not comply with an order of the Tribunal or with an order of a court in respect of a building claim as referred to in Part 3A, or

.......

(3) It is a sufficient defence to a complaint that the holder of a contractor licence has been guilty of improper conduct as referred to in subsection (1)(b), (c) or (d) in connection with work undertaken by the holder, if the holder proves to the satisfaction of the Secretary that the holder did all that could reasonably be required to ensure that a nominated supervisor for that work would exercise such degree of control over the doing of the work as would be necessary to prevent the occurrence of the improper conduct.

(4) It is a sufficient defence to a complaint that the holder of a contractor licence has been guilty of improper conduct as referred to in subsection (2)(d) if, before employing or engaging the person concerned, the holder obtained the approval of the Secretary to the employment or engagement of the person".

1. Consequently, the commission of an offence by the Company against the HBA results in the Company being guilty of improper conduct, if it is authorised by its contractor licence to contract to do residential building work.
2. What is "residential building work" is defined in clause 2 of Schedule 1 of the HBA as follows, subject to certain exclusions set out in cl 2(3):

"2 Definition of "residential building work"

(1) In this Act, residential building work means any work involved in, or involved in co-ordinating or supervising any work involved in -

(a) the construction of a dwelling, or

(b) the making of alterations or additions to a dwelling, or

(c) the repairing, renovation, decoration or protective treatment of a dwelling.

(2) Each of the following is included in the definition of residential building work -

(a) roof plumbing work done in connection with a dwelling,

(b) specialist work done in connection with a dwelling,

(c) work concerned in installing in a dwelling any fixture or fixed apparatus that is designed for the heating or cooling of water, food or the atmosphere or for air ventilation or the filtration of water in a swimming pool or spa (or in adding to, altering or repairing any such installation)".

1. There was no dispute that the work in issue comprised "residential building work".
2. Section 54 imputes to officers of corporations as improper conduct certain things done by the corporation. It says:

"54 Improper conduct: members of partnerships or officers of corporations

(1) An individual who is a member of a partnership or an officer of a corporation that is the holder of a contractor licence is guilty of improper conduct if the holder does any of the things referred to in section 51 or 52.

(2) The reference in subsection (1) to an individual who is a member of a partnership includes a reference to an individual who is an officer of a corporation that is a member of a partnership.

(3) It is a sufficient defence to a complaint that an individual who is a member of a partnership, an officer of a corporation that is a member of a partnership or a director of a corporation (being a partnership or corporation that is the holder of a contractor licence) has been guilty of improper conduct if the individual proves to the satisfaction of the Secretary that -

(a) the improper conduct occurred without the individual's knowledge, or

(b) the individual was not in a position to influence the conduct of the other members of the partnership or other officers of the corporation, of which the individual was a member or an officer, so as to prevent the occurrence of the improper conduct, or

(c) the individual, being in such a position, used all due diligence to prevent the occurrence of the improper conduct".

1. What is an "officer" in relation to a corporation is defined in Schedule 1 of the HBA to have the same meaning as it has in the Corporations Act 2001 of the Commonwealth. Section 9 of the Corporations Act 2001 relevantly defines "officer" to include a director. Mr Wilson being a director of the Company at all relevant times, is, as a consequence, guilty of improper conduct if the Company did anything referred to in s 51 or 52 and no defence of a kind set out in s 54 applies.
2. The initial question is whether or not the Company has committed any offences against the HBA. The Respondent alleges that the Company committed offences by reason of non-compliance with certain requirements under the HBA. These were requirements for a written contract under s 7, for taking a deposit within certain limits allowed under s 8 of the HBA and for obtaining insurance required under s 92 of the HBA. If the Company has committed an offence, Mr Wilson is also guilty if s 54 applies.
3. Section 7 of the HBA sets out certain requirements going to the form of contracts to be used. It says:

"Form of contracts (other than small jobs)

(1A) This section applies to a contract only if the contract price exceeds the prescribed amount or (if the contract price is not known) the reasonable market cost of the labour and materials involved exceeds the prescribed amount. The prescribed amount is the amount prescribed by the regulations for the purposes of this section and is inclusive of GST.

(1) A contract must be in writing and be dated and signed by or on behalf of each of the parties to it.

(2) A contract must contain -

(a) the names of the parties, including the name of the holder of the contractor licence shown on the contractor licence, and

(b) the number of the contractor licence, and

(c) a sufficient description of the work to which the contract relates, and

(d) any plans and specifications for the work, and

(e) the contract price if known, and

(f) any statutory warranties applicable to the work, and

(f1) the cost of cover under Part 6 or 6B (if insurance is required under Part 6), and

(g) in the case of a contract to do residential building work - a conspicuous statement setting out the cooling-off period that applies to the contract because of section 7BA, and

(h) in the case of a contract to do residential building work (other than a construction contract to which the Building and Construction Industry Security of Payment Act 1999 applies) - details of any progress payments payable under the contract, and

(i) in the case of a contract to do residential building work - a statement that the contract may be terminated in the circumstances provided by the general law and that this does not prevent the parties agreeing to additional circumstances in which the contract may be terminated, and

(j) any other matter prescribed by the regulations for inclusion in the contract".

1. Section 7A creates an offence for non-compliance with a number of provisions including s 7 (and s 7AAA dealing with contracts for small jobs). It says:

"7A Offence

A person must not contract to do work under a contract unless the requirements of sections 7, 7AAA and 7E in relation to the contract are complied with.

Maximum penalty - 80 penalty units in the case of a corporation and 40 penalty units in any other case".

1. Section 8 sets out the maximum amount of a deposit for "residential building work". It says:

"8 Maximum deposit for residential building work

(1) The maximum amount of a deposit for residential building work is 10% of the contract price. A deposit for residential building work is a payment on account before work is commenced under a contract to do residential building work.

(2) A person must not -

(a) demand or receive payment of a deposit for residential building work if the amount of the payment exceeds the maximum imposed by this section, or

(b) enter into a contract under which the person is entitled to demand or receive payment of a deposit for residential building work if the amount of the payment exceeds the maximum imposed by this section.

Maximum penalty - 1,000 penalty units in the case of a corporation and 200 penalty units in any other case.

(3) The regulations may make provision concerning how a contract price is to be determined for the purposes of this section.

(4) This section does not apply to residential building work done under -

(a) a contract that is made between parties who each hold a contractor licence and is for work that each party's contractor licence authorises the party to contract to do, or

(b) a contract to do specialist work that is not also residential building work".

1. Requirements for persons doing "residential building work" to obtain insurance are set out in s 92 of the HBA in the following terms:

"92 Contract work must be insured

(1) A person must not do residential building work under a contract unless -

(a) a contract of insurance that complies with this Act is in force in relation to that work in the name under which the person contracted to do the work, and

(b) a certificate of insurance evidencing the contract of insurance, in a form approved by the Authority, has been provided to the other party (or one of the other parties) to the contract.

Maximum penalty - 1,000 penalty units in the case of a corporation and 200 penalty units in any other case.

Note.

Part 6B (see section 104B) provides that the requirement to obtain insurance under this section may be met by obtaining coverage through an alternative indemnity product.

(2) A person must not demand or receive a payment under a contract for residential building work (whether as a deposit or other payment and whether or not work under the contract has commenced) from any other party to the contract unless -

(a) a contract of insurance that complies with this Act is in force in relation to that work in the name under which the person contracted to do the work, and

(b) a certificate of insurance evidencing the contract of insurance, in a form approved by the Authority, has been provided to the other party (or one of the other parties) to the contract.

Maximum penalty - 1,000 penalty units in the case of a corporation and 200 penalty units in any other case.

(2A) An individual who is convicted of a second or subsequent offence under subsection (1) or (2) is liable to a penalty not exceeding 500 penalty units or imprisonment for a term not exceeding 12 months, or both.

(3) This section does not apply if the contract price does not exceed the amount prescribed by the regulations for the purposes of this section or (if the contract price is not known) the reasonable market cost of the labour and materials involved does not exceed that amount.

(4) If the same parties enter into two or more contracts to carry out work in stages, the contract price for the purposes of subsection (3) is taken to be the sum of the contract prices under each of the contracts.

(5) A contract of insurance that is in force in compliance with this section in relation to residential building work (the original work) done by a person extends to any residential building work done by the person by way of rectification of the original work.

Note.

Accordingly, this section does not require a separate contract of insurance in relation to the rectification work.

(6) To avoid doubt, this section extends to residential building work that is also owner-builder work (when the work is done under a contract between the person who contracts to do the work and the owner-builder)".

1. There was no dispute that both Applicants were the holders of "authorities" being the Company's "contractor licence" and Mr Wilson's supervisor certificate. Consequently, the Applicants were persons against whom disciplinary action could be brought under s 62, if there were grounds on which disciplinary action may be taken.
2. The questions for determination are the following:

(1) whether there are grounds for disciplinary action against the Company; and

(2) if so, what disciplinary action should be taken.

1. Determination of the questions before the Tribunal, first of all, requires consideration of the purpose of the relevant provisions of the HBA.
2. The HBA is a consumer protection law. In Dinh v Commissioner for Fair Trading [2016] NSWCATOD 72, the Tribunal said, at [54]:

"I therefore note that the HB Act is a consumer protection statute, and in that regard it is protective not punitive in nature. This is therefore a protective jurisdiction. The legislation that regulates the home building industry is not only protective of consumers, but future consumers in that the public can have confidence in the integrity of residential construction. The Crimes Act on the other hand is a proscriptive statute the purpose of which is to prevent persons from committing crimes, by both setting out a significant number of offences against the individual or society, and prescribing penalties for transgression. In this manner that statute could be considered as being proscriptive and punitive, with a significant deterrent value. The HB Act however aims to safeguard the public confidence in the industry. A high level of honesty and trust are of paramount importance but candour with the regulator is also required to maintain that public confidence. It is also imperative that licensees can be trusted to protect the interests of the community".

1. The Tribunal in Shoostovian v Commissioner for Fair Trading [2022] NSWCATOD 93 described the need to balance the interests of consumers with those of applicants in the following terms:

"In making these two adverse findings against Mr Shoostovian I am cognisant of the fact that the HB Act is not punitive and is designed to be protective to the public rather than putative to Mr Shoostovian. Whilst not argued significantly before the Tribunal I observe that the interests of consumer protection would always overcome the interests of the individual (in this instance Mr Shoostovian), with the public interest benefit of currently protecting consumers from such risk as greater than the private and public interest of allowing the contractor as applicant to hold the licence".

1. The cases say that the HBA contemplates a scheme for the protection of consumers. This is a scheme that deals with numerous specific matters. Importantly, contracts must satisfy certain requirements set out in Division 1 of Part 2. They include requirements in s 7 and 7AAA for a written contract. That contract must address stipulated subject matters, including a description of work, and the contract price if known. Section 7 also requires that the written contract contain relevant statutory warranties.
2. Section 7 also contemplates matters going to insurance. It requires the contract to contain the costs of cover. Section 92, for its part, requires insurance to be obtained in the circumstances set out in that section.
3. In other words, the scheme contemplated by the HBA involves not just the provision of the services of the contractor that result in works being built. It also contemplates the acquisition by customers of the rights embodied in their contracts with the contractor, including the benefit of relevant warranties and obtaining the protections afforded by the taking out of insurance by the contractor.
4. Failure to take out a written contract leaves the customer outside the scheme for protection of consumers contemplated by the HBA. In the event of a dispute, they would be left in the position of having to argue the terms of whatever agreement they could prove, based on correspondence at hand and oral communications. If unable to prove the terms of a contract, the customer may be left in an even less favourable position, of having to deal with any quantum meruit claim the contractor makes without the protections of a contract. The self-evident purpose of the scheme contemplated by the HBA is to avoid outcomes such as these and afford the consumer the protection of a contract that deals with the subject matters set out in s 7 (or s 7AAA where applicable).
5. Equally, the absence of insurance leaves the consumer without the protections of part of the scheme provided for by the HBA. If having to make a claim for defective work and the contractor lacks the means to pay for rectification, the consumer may, without the protection of insurance of the work, be left in a disadvantageous position. This is not an outcome that is consistent with the scheme for consumer protection afforded under the HBA.

1. A ground for disciplinary action arises under s 56 in relation to the Company, if the Company was guilty of "improper conduct" (s 56(c)). "Improper conduct" is defined in s 51 to include committing an offence against the HBA or the regulations.
2. There was no dispute that the Company had failed to comply with s 7 (or to the extent applicable, s 7AAA) in the absence of written contracts for the work described above at [14] to [28], received a deposit that was greater than what was allowed under s 8 and that the insurance required under s 92 had not been taken. In each case, the consequence was the commission of an offence against the HBA by reason of s 7A, 8(2) and 92. As such, these were circumstances giving rise to "improper conduct" within the meaning of s 56. The Applicants did not dispute that these circumstances had arisen and that as a result, there were grounds for disciplinary action.
3. These are circumstances that also resulted in disciplinary action lying against Mr Wilson. Mr Wilson was a director of the Company at all relevant times and as such, was under s 54, guilty of improper conduct if the Company had committed an offence against the HBA. This was not disputed. No claim was made that any defence under s 54(3) or (4) was available to Mr Wilson. Nor was there evidence to support such a claim.
4. The Applicants submitted that the breaches were of a "technical" kind. If the Applicants' submission was that breaches of this kind are not breaches at all, I cannot agree. There is nothing in the HBA to indicate that some kinds of breaches should not be regarded as breaches for the purposes of the HBA. If the evidence establishes a breach, this is sufficient to engage the operation of the provisions of the HBA to determine the consequences of the breach, including what disciplinary action lies.

What disciplinary action should be taken - relevant matters

1. If a breach was established, the parties disagreed on the consequences, in particular as to what the appropriate disciplinary action against the Applicants should be in the circumstances of the case. The Applicants said that the disciplinary action taken was disproportionate to the breaches in issue. The Respondent, on the other hand, said that the action taken was appropriate.
2. Principal Member Robinson in Dowling v Secretary, Department of Customer Service [2024] NSWCATOD 205 ("Dowling") set out matters that could be brought to bear upon a determination of what disciplinary action should be taken. She said, at [50];

"In Pilipczyk the Tribunal considered relevant factors when determining an appropriate penalty as follows:

...as the Commercial Tribunal acknowledged in McIlveen, at p 29 "[t]he concept of public protection is wide; it embraces fitness, the maintenance of public standards, public confidence and deterrence both of the particular builder and others in the same occupation" Other relevant factors in considering an appropriate penalty were identified by the Fair Trading Tribunal, comprising Judge KP O'Connor, Chairperson, in Director-General, Department of Fair Trading v Cohen [2000] NSWFTT 3 ('Cohen (2000)'), at par 45:

"a) the nature, width and extent of the contraventions

b) the loss or damage and prejudice in consequence of the contraventions

c) the circumstances in which the contraventions took place

d) whether the licensee has been found to have engaged in any similar conduct

e) the presence of fraudulent or dishonest intent and deliberation on the part of the licensee

f) the extent of carelessness or wilfulness of the conduct

g) the efforts made to correct the situation and what measures have been taken by the licensee

h) what consciousness the licensee (a) had (b) displayed, of its obligations under the relevant statute and to the owners

i) the effect upon the licensee

j) antecedents

k) attitude, building history and future compliance

l) the penalty range."

1. In Dowling, Principal Member Robinson found that there was a failure to issue a certificate of compliance for work done. She found that this was an oversight and that the failure in relation to the issuing of a compliance certificate was not material to the performance of the relevant work and was a "technical breach".
2. The Applicants, first of all, addressed the nature, width and extent of the breaches in evidence and the circumstances in which the breaches occurred and whether similar conduct had occurred. They said that many of the breaches arising out of defective work were contributed to by the conduct of the homeowner and that the Applicants were not solely responsible.
3. In the case of the Dee Why works, the customer asked Mr. Wilson to stop work, repudiated his contract and the customer prevented Mr Wilson and his workers from carrying out work required under the Tribunal's order.
4. In the case of the Forestville customer's works, the Applicants said that it was the customer who had changed their mind about what work was to be done in circumstances where Mr Wilson or the Company had already paid for the relevant materials.
5. In the case of the Jindabyne works, the Applicants said that it was once again the customer who prevented Mr. Wilson and his workers from carrying out the required work. The Applicants also say that Fair Trading did not penalise the Company in respect of alleged defects in the work done.
6. While there is evidence of the need to rectify defective works at Dee Why and Jindabyne, the Applicants submit that they made good loss and damage and prejudice in consequence of any contraventions. They say that they made efforts to rectify work but were denied access by customers. They paid $12,825.60 to the customer in relation to the Dee Why works. The Applicants also settled their dispute with the customer in respect of the Jindabyne works. They paid a refund for the entire amount of the unused materials supplied for the Forestville customer works.
7. I agree that the circumstances described above and actions taken to address defective work and payments made are matters that favour the Applicants and are relevant to the determination of this matter.
8. The Applicants further say that their conduct in dealing with matters of rectification was neither wilful, fraudulent nor dishonest in intent. The Applicants rely on the efforts made to rectify work and make the payments described above as evidence of their state of mind. I agree that these are matters that favour the Applicants and are relevant to the determination of this matter.
9. A further matter the Applicants say is relevant is the effect of the decisions under review upon Mr Wilson and the business of the Company. They say that they had opportunities to carry out works with a value of about $140,000 but had not been able to access that work because of the Respondent's decisions cancelling the relevant authorities.
10. Mr Wilson also spoke of the adverse impact of the Respondent's decisions on his own financial situation and that of two of his workers. He gave evidence of the loss of income for his workers and for himself, because the Respondent's cancellation of the Company's licence and his supervisor certificate prevented them from working. He said that his wife had recently given birth to a second child and she was not currently working. Mr Wilson said that presently he was the sole income earner and that the absence of income from his roofing business left his family in a difficult financial situation. He also gave evidence of financial commitments in respect of three properties, two of which were mortgaged.
11. I accept the evidence set out at [81] and [82] and that these are relevant considerations in the determination of this matter.
12. The Applicants also relied upon evidence of their long antecedents including Mr Wilson's history in the construction industry since 2006, as well as his relationships with a large builder and his suppliers. He also produced evidence of good reviews from customers for work done by the Company. I accept this evidence and its relevance as considerations going to the determination of this matter.
13. The Applicants conceded the breaches as alleged. However, they said that the sanctions upon the Company and Mr Wilson were disproportionate to the conduct, especially having regard to the fact that in many instances, the homeowner prevented Mr. Wilson from carrying out necessary work and the other matters set out above at [74] to [82].
14. The Applicants also said that the failure on the part of the Company to enter into written contracts and take out insurance, and receipt of an excessive deposit were breaches of a "technical" nature and as such, did not warrant the disciplinary action taken by the Respondent.
15. The question of whether or not the breaches in question were merely "technical" breaches requires consideration having regard to the purpose of the relevant provisions of the HBA. For the reasons set out below, I do not think that the breaches are merely "technical" breaches.
16. The failure of the Company to provide written contracts dealing with the warranties and other subject matters contemplated by the HBA and the failure to obtain insurance as required by s 92, in my opinion, gave rise to defaults going beyond mere "technical" breaches. The absence of a written contract dealing with the required subject matters and the absence of insurance leaves the customer short of something the statutory scheme contemplates that customers should have for the reasons set out at [65] - [66] above. Leaving a customer without the benefit of rights that the statutory scheme contemplates cannot be dismissed as merely a "technical" matter.
17. Further, these were not breaches to which any customer contributed. They were breaches by the Company of its statutory obligations for which it was responsible and not breaches for which customers were responsible in whole or part.
18. The Applicants submitted that there were a number of matters that explained the breaches in evidence and went to mitigating the consequences of the breaches. They relied on considerations of urgency to explain the absence of written contracts. They also submitted that for certain larger projects, the relevant Applicant was a subcontractor and relied on the insurance taken out by head contractors. While these were not circumstances that excused non-compliance, the Applicants said that they should be taken into account in mitigation.
19. I do not think that urgency can excuse the failure to enter into written contracts required by the HBA. There is no reason to conclude that the legislation contemplates that this is a basis for non-compliance or mitigation of disciplinary action. Equally, I do not think that a failure to take out insurance can either be an excuse for non-compliance or raised in mitigation, just because the Applicants relied on insurance they thought was taken by head contractors. There is no basis in s 92 or elsewhere in the HBA to allow for mitigation for this reason. Section 92 requires the relevant insurance to be taken without qualifications of the kind argued by the Applicants to claim mitigation.
20. Additionally, there was no evidence of what the policies of any head contractor's insurance covered or did not cover, and the extent to which the insurable risk covered by such policies operated to protect (or not protect) affected parties, in the absence of insurance being taken by the Company.
21. The requirement set out in s 8 of the HBA that the Company not "demand" or "receive" a deposit that is greater than 50% is also not an unimportant matter. Not having to pay a deposit that is greater than what the HBA contemplates, has the self-evident purpose of protecting the consumer's ability to better manage their cashflows.
22. The Applicants, however, say that the customer in the case of the Jindabyne works, "offered" a deposit of 50% and that this was a matter that went to mitigation. An email from Mr Wilson, however, said that the deposit was "required". Mr Wilson explained the language used as simply "pro-forma" wording and did not carry the meaning of a demand for a deposit of 50%.
23. Whether "pro-forma" or not, the ordinary meaning of "required" is clear. The ordinary meaning of the word "required" is relevantly "to place under obligation or necessity" (The Macquarie Dictionary, Online). I do not think that the circumstances described by the Applicants can derogate from that ordinary meaning. There was no evidence from the customer that she understood the word "required" to mean something different to its ordinary meaning. The absence of oral evidence from the customer does not allow for any particular inference to be drawn either for or against the Applicants, going to whether or not the customer offered the 50% deposit or thought she was obliged to pay it. The language of the email requiring a deposit is sufficient for me to conclude that this was what was meant. I find that the email in question carried no other meaning than that the payment of the 50% deposit was demanded.
24. Whether or not the Applicants demanded such a deposit or whether or not it was "offered", there was no dispute that the Company "received" the 50% deposit. The consequence was a breach of s 8, whether or not there was a demand for such a deposit within the meaning of s 8 of the HBA.
25. I do not think that the evidence allows for a conclusion that on the balance of probabilities, the deposit was "offered" for the reasons set out above, even if this is what Mr Wilson believed. I do not, in these circumstances, need to consider whether an offer of the deposit is relevant to mitigation. I observe in passing that even if such an offer had been made, I do not think that these would be circumstances that could carry sufficient weight to assist the Applicants, in the context of the other matters in evidence as to the Applicants' conduct. Any agreement by the Company to a proposal that places it in breach of a statutory obligation, cannot be accepted as an act that allows for mitigation.
26. The Applicants relied on the claim that there was no fraudulent or dishonest conduct on the part of the Applicants, as a matter going to mitigation. However, even if I were to accept that there was no fraudulent or dishonest conduct, the Applicants' failure to enter into written contracts, obtain insurance and receive a deposit within the maximum amount allowed, was conduct that was wilful and intentional. There was no evidence that the Company had at the relevant times, intended to enter written contracts with the customers in question, take out insurance or receive only the permitted deposit or that their failure to do these things occurred by reason of oversight or error. Further, the absence of written contracts and insurance were not one-off acts but occurred more than once. This was a pattern of conduct showing wilfulness and intention. I do not in these circumstances think that the state of mind of the Applicants can allow for mitigation.
27. Mr Wilson's own evidence was that he did not understand that either Applicant had obligations to enter into written contracts and take out insurance. The Applicants' absence of the knowledge of a licence holder's statutory obligations does not favour them. It is not unreasonable to expect that the holder of an authority understands these obligations and complies with them.
28. I accept the evidence of Mr Wilson as to the hardship Mr Wilson and his workers would face as a consequence of the Respondent's decisions under review. Mr Wilson expressed remorse for his actions and said that he now "knew better". I also accept his evidence. These are matters that favour the Applicants.
29. However, the breaches in evidence are not isolated events but are multiple, revealing a pattern. They affected multiple consumers. The matters in the Applicants' favour do not allow me to disregard the pattern of conduct in evidence or the gravity of the conduct.
30. The statutory purpose of protecting consumers does not exclude consideration of the circumstances of a contractor in determining what disciplinary action should be taken. However, the gravity of the matters described at [88], [93] and [98] above do not, in my opinion, outweigh the considerations set out above that go in the Applicants' favour. The protection of consumers, in the circumstances of the case, carries greater weight than the particular circumstances of the Applicants and the other matters in their favour. The failures to enter into written contracts and obtain insurance and the taking out of a deposit that was greater than that permitted under the Act are matters that, in my opinion, carry preponderant weight. I do not think that these are circumstances that allow for the mitigation sought by the Applicants.
31. For the above reasons, I am of the opinion that the decisions under review should be affirmed on the basis of the "improper conduct" of the Applicants. This is sufficient to dispose of the matter.

1. There was evidence of defective work and consequent breaches of warranties. In the case of the Dee Why works and Jindabyne works; rectification orders were made.
2. I accept the Applicants' evidence the Company acted to rectify the relevant work and that the reason for the inability to do so was outside their control. I have also found that these are matters that favour the Applicants. I also accept the evidence provided by the Applicants as to the favourable reviews received from customers.
3. The evidence of the defective work before the Tribunal, nevertheless, does not assist the Applicants. While the Company's inability to carry out rectification work may have been outside their control, there is no evidence to indicate that the defects themselves occurred for reasons outside their control.
4. However, I do not think that the defective work in evidence would, of itself, be sufficient to justify the particular disciplinary action the Respondent took in the decisions under review. I have, nevertheless, found that the decisions under review must stand for the reasons set out above, regardless of the defective work and the actions the Applicants have taken to rectify defects.

1. The Respondent's decisions under review relied on a number of other grounds, including that the Applicants were not "fit and proper" persons to hold an authority and improper conduct in failing to comply with orders of the Tribunal. These again are not matters that assist the Applicants' case. However, I do not need to consider other grounds, having come to a decision based on the matters considered above.

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.