Younan v Commissioner for Fair Trading

Background

1. At the relevant times, Mr Younan was the Director and Secretary of Nazero Constructions Pty Ltd (Nazero). He was also the Nominated Qualified Supervisor.
2. The Commissioner had found Nazero guilty of improper conduct due to its failure, without reasonable cause, to comply with the requirements of two rectification orders issued to it on: 1. 17 April 2013 in relation to residential building work at an address at Pittwater Road, Manly (the Manly rectification order); and 2. 18 August 2014 in relation to residential building work at a unit at premises in Mann Street, Gosford (the Gosford rectification order).
3. The Commissioner found Mr Younan to be guilty of improper conduct in his capacity as a Director and Secretary of Nazero. The penalty of $3,000 was in relation to the failure to comply with both the Manly and Gosford rectification orders.
4. Mr Younan sought review of the penalty decision made against him by the Tribunal in the Occupational Division on 1 October 2015. The Occupational Division, differently constituted, made a decision on 27 January 2016 setting aside the penalty decision made by the Commissioner. In a later decision on 12 May 2016 the Occupational Division ordered the Commissioner pay Mr Younan's costs of the proceedings. The Commissioner appealed the Occupational Division's decisions to the Appeal Panel.
5. On 21 December 2016, the Appeal Panel upheld the appeal in relation to the Gosford rectification order, dismissed the appeal in relation to the Manly rectification order (which it found to be invalid and ineffective) and remitted the matter back to the Occupational Division for further review. The Appeal Panel ordered that the proceedings be reheard on the basis that the Gosford rectification order was valid and effective.
6. The Appeal Panel also set aside the costs order made on 12 May 2016 and remitted the issue of costs to the Occupational Division.

Issues in these proceedings

1. The issues to be determined in these proceedings are: 1. whether Nazero failed to comply with the Gosford rectification order without reasonable cause; 2. if it is found that Nazero failed to comply with the Gosford rectification order without reasonable cause, what penalty, if any, should apply to Mr Younan in respect of Nazero's failure; and 3. costs of the Occupational Division proceedings.

The legislation

1. Section 48E of the Home Building Act 1989 (the Act) permits an inspector to issue a rectification order against a contractor in respect of, among other things, defective building work. A contractor who, without reasonable cause, does not comply with the requirements of a rectification order is guilty of improper conduct (s 51(2)(b)). Disciplinary action, including the imposition of a penalty, may be taken against a contractor who is guilty of improper conduct (s56 and s 62).
2. Under s 54 of the Act an office holder of a corporation that is the holder of a contractor licence is guilty of improper conduct if the holder does not comply with a rectification order. A penalty or other disciplinary action can be awarded against an office holder.
3. There are, however, several defences to a complaint that an office holder of a corporation that is the holder of a contractor licence is guilty of improper conduct. Of relevance to this matter, s 54(3)(c) provides that it is a defence that the office holder used all due diligence to prevent the occurrence of the improper conduct.

Did Nazero fail to comply with the Gosford rectification order?

Factual background

1. The Gosford rectification order relates to a shower in an apartment within a building that contains 45 apartments. The building received an occupation certificate in September 2009. There are approximately 90 showers in the building, each being of a similar design.
2. According to the owner of the apartment, a water leak in the shower was first reported in September 2013 by the tenant living in the apartment. A plumber attended but could not identify the source of the leak.
3. In November 2013 the tenant contacted the owner again to advise of a further leak from the shower. A plumber organised by the owner attended the apartment on 28 November 2013 and reported a damaged shower membrane in the shower recess. The owner forwarded the report to the building's strata manager who in turn notified Nazero. The owner reports follow up with the builder by the strata manager and herself over the next few months.
4. Mr Younan states that he attended the apartment in early 2014 with a plumber and flood tested the shower for 30 minutes at a water height of 30 centimetres. He states he and a plumber who had accompanied him could not identify any leak. He states that he flood tested the shower a second time in mid-2014, filling the shower recess above the height of the shower door frame and observed a small amount of water appear in the hallway behind the shower. Mr Younan said he formed the view that the leak was coming through the shower door frame and not the membrane. He considered that resealing the door frame and the shower would rectify the leak.
5. The owner reported ongoing water problems and on 2 July 2014 a Fair Trading Building Inspector met with the owners and Mr Younan at the Gosford property to inspect the leak. Mr Younan agreed that Nazero would rectify the leak within three weeks.
6. Mr Younan stated that, through a subcontractor, he arranged for a company called Megasealed to inspect the Gosford property to locate and seal any leak. Megasealed carried out a water test at the property on 22 July 2014 but could not identify a leak. It appears that no further steps were taken by Nazero at this time.
7. On 18 August 2014, having formed the view that the water leak had not been rectified, Fair Trading issued Nazero with a rectification order which required the water leak to be rectified by 1 September 2014. Mr Younan then arranged for Megasealed to reseal the shower on about 25 August 2014 and believed the water leak had been rectified.
8. A further inspection was conducted by the Fair Trading Building Inspector on 25 September 2014 and the Inspector concluded that the leak had not been rectified following a further flood test. The Inspector informed Nazero of this the next day and advised that disciplinary action would be considered.
9. Mr Younan states that, upon learning the leak had not been fixed, he immediately arranged for Megasealed to go back to the property. Megasealed was refused access to the property by the owner.
10. Mr Younan states he attempted to identify and rectify the leak and at all times he was willing to fix any leaks occurring in the bathroom at the Gosford property. He stated that at no time has anybody, including the Building Inspector, been able to identify the source of the leak. He contends that Nazero spent $5,000 to $6,000 attempting to rectify the leak.

Can Mr Younan challenge the Nazero decision?

1. The respondent submits that it is not open to Mr Younan in these proceedings to argue that Nazero did not fail to comply with the Gosford rectification order as at no time has Nazero sought to challenge the Commissioner's decision that Nazero was guilty of improper conduct. The Commissioner's disciplinary decision in respect of Nazero with regard to the Gosford rectification order therefore still stands. The respondent submits that Mr Younan is unable to go behind that decision and must be taken to admit its findings. Furthermore, the respondent states that, as there is no application before the Tribunal in relation to the Nazero decision, the Tribunal lacks jurisdiction to review that decision.
2. The upshot of this submission, the Commissioner argues, is that Mr Younan is, by virtue of s 54(1) of the Act, automatically individually liable for Nazero's conduct. The respondent also referred to the provisions in s 53 of the Act concerning improper conduct by nominated supervisors. Mr Younan was, at the relevant time, the nominated supervisor of Nazero. However, the decisions made by the Commissioner were not made pursuant to s 53, but only under s 54 on the basis of Mr Younan's position as a Director of the company. There is no need to refer to s 53 further.
3. The applicant submits that the respondent conflates Nazero and Mr Younan when they are in fact separate entities. The decision against Nazero relevant to these proceedings was made on 9 June 2015. Nazero had changed its name to Zeecat Constructions Pty Ltd on 22 April 2015 and Mr Younan states that he ceased to be a Director on 1 July 2015. Under s 54(1) of the Act former licence holders and officers of corporations can be found to be guilty of improper conduct. A liquidator was appointed to Zeecat Constructions Pty Ltd on 27 July 2016.
4. There is force in both parties' views on this issue. Clearly, as the applicant states, Nazero and Mr Younan are separate entities and their interests, responsibilities and liabilities may well be different. There could be many reasons why one entity does not challenge a government decision and a separate but related entity may wish to challenge a similar decision. When the same substratum of fact underlies the making of the decisions in relation to both entities, it would be unfair if one entity was bound by the inaction of the other entity. Indeed, the action taken against Mr Younan is predicated upon a breach by Nazero.
5. On the other hand, as the respondent submits, the fact that Nazero did not challenge the decision could be taken to be an admission on its part of liability.
6. In any event, I do not have to finally decide whether Mr Younan can challenge the decision that Nazero was guilty of improper conduct. For the reasons set out below, I have concluded that, if it is open to Mr Younan to challenge that finding, Nazero failed, without reasonable cause to comply with the rectification order in relation to the Gosford property. The starting point then for consideration of Mr Younan's arguments that he should not be found guilty of improper conduct is that Nazero is guilty of improper conduct.

Was Nazero guilty of improper conduct?

1. It is apparent that the water leak was not rectified by 1 September 2014 and I do not understand the applicant to argue otherwise. Rather, Mr Younan argues that Nazero had reasonable cause (as contemplated by s 51(2)(b)) for not complying with the rectification order.
2. Mr Younan states that the rectification order did not specify the cause of the water ingress or what works were required to rectify the problem. The order simply required Nazero to reach a result, that is, to stop the leak. He states that water ingress is a notoriously difficult issue to remedy as there can be many possible causes.
3. Mr Younan states that he was given little time to rectify the problem. While the rectification order is dated 18 August 2014, he received it in the post some days later. The rectification order required compliance by 1 September 2014 and Mr Younan states he therefore only had five or so working days to comply.
4. Mr Younan submits that, given the little time Nazero was given to comply with the order and the attempts made to rectify, Nazero had reasonable cause not to comply with the rectification order.
5. The respondent states that Nazero first had notice of the leak in September 2013 when the owner first complained about it. There was communication between Nazero and the owner for some months up to 2 July 2014 when, following a joint inspection with Nazero, the owner and the Fair Trading Inspector, Nazero agreed to rectify the leak by 23 July 2014. The leak was not rectified which led to the issuing of the rectification order on 18 August 2014.
6. The respondent acknowledges that Nazero did attempt to rectify the leak but notes that its actions were inadequate and ineffective. The respondent states there is no evidence Nazero spent in the order of $5,000 to $6,000 attempting to rectify the problem as the only evidence is an invoice from Megasealed in the amount of $795 to reseal the shower.
7. The respondent states there is no evidence of any communication with the owner by Nazero to check whether the resealing had remedied the leak. Nor is there evidence that Nazero contacted the respondent at any time after the issuing of the rectification order. Nazero did not seek further time to comply and did not respond to the respondent when notified following the inspection on 25 September 2014 that the leak was still there. In fact, the respondent states that no communication was received by the respondent from Nazero prior to the Notice to Show Cause which was issued on 20 January 2015.
8. The respondent submits that Nazero had ample time to rectify the leak and to comply with the rectification order but failed to do so. The fact that the owner refused access to Megasealed after the time for compliance had passed is irrelevant.
9. I agree with the submissions of the respondent that the onus was on Nazero to comply with the rectification order and that it is no excuse that Nazero attempted a remedy but the remedy did not work. It was Nazero's responsibility to ensure its attempts were effective.
10. I do not consider that Nazero had reasonable cause not to comply with the rectification order.

Is Mr Younan guilty of improper conduct?

1. As I have found that Nazero is guilty of improper conduct, under s 54, Mr Younan, as an office holder of Nazero, is also guilty of improper conduct unless he can show that he used all due diligence to prevent the occurrence of the improper conduct by Nazero.
2. Mr Younan's evidence in relation to his defence is essentially the same as that he put forward as to why Nazero had reasonable cause not to comply with the rectification order. These include the steps taken by him to ensure the rectification order was complied with and the difficulties he states he faced because of the nature of the order itself.
3. Mr Younan states that he was not the builder, project manager or foreman for the Gosford property. He also was not the subcontractor who installed the shower or waterproofing and was not in a position to conduct the rectification works himself. He states that he took considerable pains, as director of Nazero, to attend the premises to conduct testing and identify the issue and then arrange for remediation. His attempts to do so were bona fide even though, he submits, there is no evidence that the leak in fact was caused by the builder's defective work. His view was that the leak was caused by stress being placed on the shower door which caused cracking to occur in the shower door frame.
4. The respondent states that the improper conduct at issue does not relate to the cause of the defect or to the defective work done during construction but to Nazero's failure to comply with a rectification order in relation to the defect or defective work. Mr Younan's statements that he was not the builder, project manager or foreman therefore have no relevance. The respondent submits that Mr Younan had knowledge of the water leak for an extensive period and did not rectify it, even when he was on notice of the potential disciplinary consequences of failing to do so.
5. Mr Younan submits that there is no evidence that he knew about the water leak issue all the way along. Indeed, documents provided by the respondent show that early contact by the owner about the leak was with Jarrod Younan, not the applicant. However, in January 2014 correspondence from Fair Trading about the issue was directly addressed to Mr Younan and he states he personally attended the property in early 2014. Mr Younan therefore clearly had direct knowledge of the problem well before the rectification order was issued. Mr Younan was also present at the meeting on 2 July 2014 with the owner and the Inspector and he agreed to rectify the problem by 23 July 2014 but did not do so.
6. Mr Younan therefore was aware that there was a leak at the Gosford property and that Nazero was required to remedy it. He was personally involved in the attempt to do so and the attempt failed.
7. Mr Younan submits that he used all due diligence in attempting to prevent the occurrence of the improper conduct by Nazero. It is certainly true that Mr Younan took some steps to deal with the issue but, in my view, those steps fell short of acting with all due diligence. As director with personal knowledge of the problem, he did not pursue identifying the source of the leak so it could be rectified effectively nor did he check that any work done was effective. He did not communicate with either the owner or Fair Trading about any problems he encountered. In particular, he did not contact the owner or Fair Trading when Megasealed failed to find a leak in July 2014. Nor did he contact Fair Trading when Megasealed were denied access after he had been informed the work done by them on 25 August 2014 had not been effective. He was content to let matters lie instead of trying to resolve them.
8. I therefore find that Mr Younan is guilty of improper conduct in accordance with s 54 of the Act.

What penalty should be imposed?

1. Having found that Mr Younan, in his capacity as a director of Nazero, is guilty of improper conduct, I must consider what action should be imposed under s62 of the Act. The purpose of taking disciplinary action is to protect the public rather than to punish the licence holder (Clyne v NSW Bar Association (1960) 104 CLR 186 at 201). Where improper conduct is found, the Commissioner may take a range of disciplinary action including taking no further action against the licence holder, issuing a caution or reprimand to the licence holder or requiring an individual to pay a penalty up to $11,000.
2. The Commissioner had originally imposed a penalty of $3,000 on Mr Younan in relation to the decision that Nazero had failed to comply with rectification orders in respect of both the Manly and Gosford properties. The Appeal Panel held that the Manly rectification order should never have been made and I must now consider what action is appropriate in respect of Mr Younan's improper conduct in relation to the Gosford property only.
3. Relevant factors in considering an appropriate penalty were identified by the Fair Trading Tribunal in Director-General, Department of Fair Trading v Cohen [2000] NSWFTT 3 at [45]. Those factors were confirmed in Younan v Commissioner of Fair Trading [2007] NSWADT 170 at [26] and Harb v Commissioner of Fair Trading [2007] NSWADT 175 at [60]. Two further factors were added in Ng v Commissioner for Fair Trading [2007] NSWADT 259 at [72]. The relevant factors are: 1. the nature, width and extent of the contraventions; 2. the loss or damage and prejudice in consequence of the contraventions; 3. the circumstances in which the contraventions took place; 4. whether the licensee has been found to have engaged in any similar conduct; 5. the presence of fraudulent or dishonest intent and deliberation on the part of the licensee; 6. the extent of carelessness or willfulness of the conduct; 7. the efforts made to correct the situation and what measures have been taken by the licensee; 8. what consciousness the licensee (a) had (b) displayed, of its obligations under the relevant statute and to the owners; 9. the effect upon the licensee; 10. antecedents; 11. attitude, building history and future compliance; 12. the penalty range.
4. Mr Younan submits that applying a monetary penalty in this case would be excessive, while the Commissioner submits that a monetary penalty in the amount of $1,500 along with a reprimand and caution would be appropriate.
5. Mr Younan states that he has held a contractor licence for over 43 years and, apart from in the present case, no other disciplinary action has been against him. The Commissioner notes that in 2011 a rectification order was issued to Nazero in respect of defective work at a property at Mona Vale. The order was not complied with and Nazero was issued with a warning letter, although no disciplinary action was taken against it or its nominated supervisors and directors. The Commissioner also refers to the failure of Nazero to comply with the rectification order issued in respect of the Manly property. The Commissioner states that the repeated failure of Nazero to comply with rectification orders evidences a repetitive pattern of misconduct.
6. Mr Younan was, at the relevant times, a director of Nazero and I consider that the Mona Vale and Manly rectification orders have some bearing on the present case. However, the Manly rectification order was found to be ineffective by the Appeal Panel and whether Nazero or Mr Younan were guilty of improper conduct is undecided. I note that no action was taken against either Nazero or Mr Younan in relation to the Mona Vale rectification order. Mr Younan's responsibility for any failure by Nazero in that matter is also therefore undetermined.
7. The defective work in issue in relation to the Gosford property was a water leak in one bathroom out of 90 in the block of units. This does not point to a systemic failure on the part of the builder.
8. I accept that the owner incurred some monetary loss as a result of the water leak as she reduced the rent payable by her tenant who was unable to use the bathroom. That loss has not been quantified.
9. I also accept that Mr Younan has been willing to rectify the water leak and that he also incurred some costs, although, as noted above, there is no evidence that his costs were in the amount claimed. He, however, did not take appropriate action to rectify the leak in a timely and effective way. He had notice of the problem for some time and took little action until the respondent took formal steps. The action he then took was ineffective and at no time did he follow up with either the owner or the respondent on what was required.
10. In the circumstances of this case, I am not persuaded that that the public interest requires that a monetary penalty be imposed. In my view the public interest can be adequately served by reprimanding Mr Younan under s 62(b). Such a reprimand will appear on the publicly available licence record of Mr. Younan. While that may have some adverse effect upon Mr Younan's reputation in the industry, such action is certainly at the lesser end of disciplinary action that may be taken.

Costs

1. Mr Younan seeks an order that the Commissioner pay his costs of the proceedings in the Occupational Division which includes the proceedings before the Occupational Division which resulted in the decision of 27 January 2016 and the current remitted proceedings following the Appeal Panel's decision. The Commissioner submits that the parties should pay their own costs.
2. The Tribunal's power to award costs is set out in section 60 of the Civil and Administrative Tribunal Act 2013 ("the NCAT Act"): "60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant."
3. As can be seen from that section, the ordinary rule is that each party to proceedings in the Tribunal pays their own costs. The Tribunal may, however, order a party to pay another party's costs if satisfied that there are special circumstances which warrant such an order. It is clear that the factors set out in section 60(3)(a) to (f) are not meant to be an exhaustive list of what might constitute "special circumstances".
4. However, as the Appeal Panel observed in Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38, it does not follow that a costs order should be made because some factors are made out. It remains the task of the Tribunal to weigh whether those circumstances amount to "special" circumstances that justify departing from the ordinary rule that each party bear their own costs.
5. The initial proceedings in the Occupational Division concerned both the Manly and Gosford rectification orders. In the Occupational Division, the Tribunal found that the Manly rectification order had ceased to have effect prior to the taking of disciplinary action against Mr Younan and that such action could not therefore be taken. On appeal, the Commissioner conceded that the rectification order could not in fact have been made, albeit on a different basis to the issues considered in the Occupational Division. In relation to the matters argued in the Occupational Division with respect to the Manly rectification order, the Appeal Panel described the Commissioner's arguments as "difficult to sustain" but not "untenable".
6. Mr Younan states that, as conceded by the Commissioner and confirmed by the Appeal Panel, the fact that the Manly rectification order could not have been made because of the Commissioner's failure to comply with the requirements of the Act, the Commissioner's contention that he was entitled to impose a penalty with respect to the Manly rectification order was untenable. Mr Younan states that this amounts to special circumstances warranting an order for costs in his favour.
7. Mr Younan also contends that that he should be awarded his costs in respect of the proceedings in relation to the Gosford rectification order. This is primarily because some of the findings by the Tribunal in the first proceedings that certain claims by the Commissioner were untenable were not affected by the Appeal Panel's decision.
8. The Commissioner submits that there are no special circumstances warranting the making of a costs order and that each party should bear their own costs.
9. The Commissioner argues that his admission of a jurisdictional error in relation to the Manly rectification order is not, of itself, a special circumstance which would warrant an order for costs in respect of that part of the application. He states that as soon as he became aware of the error, he notified the applicant and the Appeal Panel. The Commissioner also states that the Appeal Panel's comment that the arguments he made in relation to the Manly rectification order before the first Tribunal (and which were rejected by that Tribunal) were "difficult to sustain", does not mean that they would have failed. The Appeal Panel was not required to decide the point in light of the concession made by the Commissioner on other grounds.
10. The Commissioner argues that the parties have had mixed success in the proceedings and each should bear its own costs.
11. These proceedings are complex because they, over time, have dealt with two rectification orders issued at different times in relation to different premises. The legal and factual issues in relation to both have also been different. The Commissioner is correct in stating that the parties have had mixed success in the proceedings. Ultimately, Mr Younan has been largely unsuccessful in relation to the Gosford rectification order, while the Commissioner has conceded the Manly rectification could not have been made. The fact that the Commissioner acted without jurisdiction in relation to the Manly rectification order is of some concern.
12. I am of the view that there are no special circumstances which would warrant the making of an order that the Commissioner pay Mr Younan's costs in respect of the proceedings in the Occupational Division in relation to the Gosford rectification order. Indeed, I am of the view that each party should bear their own costs.
13. In relation to the proceedings involving the Manly rectification order, while the Commissioner may have believed he was acting correctly at the time, the error as to jurisdiction was fundamental and rendered the proceedings against Mr Younan untenable. The Commissioner is to be commended for acting quickly once the error was identified, but that does not alter the fact that the rectification order could never have been made.
14. I am therefore satisfied that special circumstances warrant an order in favour of the applicant with respect to the costs of that part of the Occupational Division proceedings, including the issues of cots before the first Tribunal, relevant to the Manly rectification order.
15. Orders 1. The decision made by the Commissioner on 2 September 2015 imposing a monetary penalty on Mr Younan is set aside. 2. The Tribunal substitutes that decision with a determination that Mr Younan, in his capacity as a director, be reprimanded in respect of improper conduct with respect to the failure by Nazero Constructions Pty Ltd to comply with a rectification order dated 18 August 2014 in relation to residential building work at a unit at premises in Mann Street, Gosford. 3. The respondent is to pay to the applicant the applicant's costs of the proceedings in the Occupational Division to the extent they relate to the Manly rectification order, as agreed or assessed.

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: 15 January 2018