Yu v Commissioner for Fair Trading

NCAT Occupational|2023-11-22

Background

On 24 April 2023, Mr Xudong Yu (the Applicant), submitted an application, together with attachments, for an individual contractor licence in the category of general building work (the Application) to the Commissioner for Fair Trading (the Respondent).
On 15 August 2023, the Respondent requested further information from the Applicant about his experience and Referees' Statements. Email responses were sent by the Applicant and further Referee's Statement forms were provided by him.
On 28 August 2023, the Respondent refused the Application in accordance with s 33C(1)(b)(i) and s 33D(1)(b) of the Home Building Act 1989 (NSW) (HBA) on the basis that the Applicant had not satisfied the practical experience requirements as he was not able to establish that he had two years acceptable relevant industry experience in a "wide range of building construction work". The Respondent accepted however that the Applicant had satisfied the approved qualification requirements.
On 28 August 2023, the Applicant sought internal review of that decision and made a number of written submissions in relation to the review. The Respondent determined on 12 September 2023 to affirm the decision to refuse the Application on the basis that the Applicant had not satisfied the practical experience requirements for the category of licence applied for.

Relevant legislation

The HBA regulates home building and specialist work within NSW. The Respondent (referred to in the HBA as the "Secretary": see Schedule 1 of the HBA) is empowered to grant contractor licences pursuant to s 19 of the HBA, in accordance with Part 2 (other than s 10) of the Licensing and Registration (Uniform Procedures) Act 2002 (NSW). Section 21 of the HBA authorises the holder of a contractor licence to contract to do certain residential building work.
Section 20(1)(a1) and s 20(1)(a2) of the HBA provide that an application for a contractor licence must be refused if the Respondent is not satisfied as to the matters of which the Secretary is required to be satisfied by s 33B and s 33C of the HBA. Section 20(2) of the HBA was amended, with effect from 5 July 2021, to read: (2) The Secretary may, by notice published in the Gazette, specify qualifications and experience, or additional standards or other requirements, required to be held or met by an applicant for a contractor licence.
Section 25 the HBA provides similar provisions in relation to a supervisor or tradesperson certificate.
Section 33C(1)(b)(i) of the HBA requires that a contractor licence must not be issued unless the Secretary is satisfied that "the applicant, if also applying for an endorsement of the contractor licence to show that it is the equivalent of a supervisor certificate, satisfies the requirements of section 33D for the issue of a supervisor certificate to the applicant".
Section 33D(1) of the HBA provides: 33D Additional requirements for obtaining supervisor and tradesperson certificates (1) A supervisor or tradesperson certificate must not be issued unless the Secretary is satisfied that the applicant - (a) has such qualifications or has passed such examinations or practical tests, or both, as the Secretary determines to be necessary to enable the applicant to do, or to supervise, the work for which the certificate is required, and (b) has had experience of such a kind and for such a period as the Secretary considers would enable the applicant to do, or to supervise, the work for which the certificate is required, and (c) is capable of doing or supervising work for which the certificate is required.
On 15 December 2022, the Respondent published a notice under s 20(2) and s 25(2) of the HBA (the Instrument), specifying the qualifications and experience or additional standards or other requirements required to be held or met by the applicant for an endorsed contractor licence or supervisor certificate for general building work.

Evidence

The Respondent did not call any oral evidence and relied on the s 58 documents (exhibit R1). The Applicant relied on material within the s 58 documents together with a document headed "Evidence and statements" that he had prepared (exhibit A1). As is apparent from the document heading, the document included some evidence from the Applicant together with a number of submissions, and whilst the entire document was admitted into evidence, due and appropriate regard was had to the evidentiary portions and to the submission portions. Attached to the document were the following three attachments (exhibit A2): 1. CFC Group Large Format Retail Facility, State Significant Development (SSD 9511) Assessment Report (Document 1) 2. Subdivision Ancillary Report, Moorebank Precinct East Stage 2 (SSD 7628) Sydney Intermodal Terminal Alliance, Part 4, Division 4.1, State Significant Development August 2018 (Document 2), and 3. Bringelly Road Business Hub, State Significant Development Modification Assessment, SSD 6324 MOD 4 (Document 3).

Submissions

Written submissions were filed on behalf of the Respondent on 10 November 2023 and as referred to above, the Applicant's evidence and statement document (exhibit A1) also contained written submissions made by the Applicant. Both parties made oral submissions at the hearing.

Role of the Tribunal

Section 83B(1) of the HBA confers jurisdiction on the Tribunal for administrative review of the Respondent's decision pursuant to s 9 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act). Section 63 of the ADR Act provides that in determining an application for review, the Tribunal is to make the correct and preferable decision having regard to the material then before it, and any applicable written or unwritten law. The Tribunal makes its own decision in place of that of the Respondent and there is no presumption that the decision of the Respondent is correct: McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357. In doing so it may exercise all of the functions conferred or imposed by any relevant enactment. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[30], [34]. In an application for review the Tribunal is not restricted to a consideration of the material that was before the decision maker but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31.

Applicant's documentary evidence in relation to his experience

Employment at Hansen Yuncken Pty Ltd

In his Application, the Applicant relied on experience gained from his employment at Hansen Yuncken Pty Ltd (Hansen Yuncken) from 20 May 2022 to the date of his application on 24 April 2023. He provided a Referee's Statement dated 6 April 2023 from Mr Martin Maroki, which attached an On Site Building Experience form (Building Experience form) for the Applicant. Mr Maroki stated that he had supervised the Applicant in respect of 12 months relevant experience at a building site in Moorebank Avenue (Moorebank Site). Mr Maroki ticked the box on the Building Experience form indicating that the approved DA/CDC work at the Moorebank Site was the "Construction of new multi-dwelling housing or residential flat buildings" and when asked to specify "type", he indicated, "Mixed purpose developments Class 5, 7b".
The Applicant later provided a further Referee's Statement and Building Experience form from Mr Maroki dated 30 June 2023 that provided the same information and indicated that the Applicant had been working at the Moorebank site at that time for 13 months and 10 days.
The lot and deposited plan references for the Moorebank Site contained in the Building Experience forms equate to those referred to in Document 2 adduced by the Applicant (part exhibit A2). The Report refers to the approval for an intermodal terminal facility, warehousing and a freight village on the Moorebank site and indicated that it is State Significant Development. The Applicant indicated that Document 2 was provided to demonstrate the significance of the project, including that it constituted State Significant Development. I have regard to Document 2 for this purpose but otherwise give it no further weight.
The Home Building Licence Initial Assessment Sheet completed by an officer of the Respondent on 15 August 2023 indicated that there was no "HBCF" and that no "DA" could be located on the council site in relation to the Moorebank Site. It was noted that the description of the work was warehouse and storage and that "Nearmaps confirms the construction of commercial buildings". It was indicated that no experience at the Moorebank Site was accepted by the Respondent as it was "Commercial" construction.

Employment at CIP Constructions Group Pty Ltd

In his Application, the Applicant relied on experience gained from his employment at CIP Constructions Group Pty Ltd (CIP Constructions). He provided a Referee's Statement from Mr Kai Schimkat dated 13 March 2023 that attached two Building Experience forms for the Applicant indicating that he had caried out building work under Mr Schimkat's supervision at a Building Site at Erskine Park for two months from 1 December 2018 to 2 February 2019 and then at a Building Site at the Bringelly Road Business Hub for 5 months from 3 January 2019 to 4 June 2019. The second Building Experience form indicated that the applicant had worked under the supervision of Mr Schimkat at the Bringelly Road Business Hub for 8 months and 16 days from 4 April 2019 to 20 December 2019.
A further Referee's Statement from Rick Monte dated 22 August 2023 was later provided by the Applicant that attached a Building Experience form for the Applicant indicating that he had been employed at CIP Constructions and had carried out work at the Bringelly Road Business Hub under the supervision of Mr Monte for five months from 3 January 2019 to 4 June 2019 and at Lot 6, Bringelly Road Business Hub for 8 months and 16 days from 4 April 2019 to 20 December 2019.
The Home Building Licence Initial Reassessment Sheet completed by an officer of the Respondent on 28 August 2023 indicated that there was no "HBCF" for the Bringelly Road Business Hub or Lot 6 of the Bringelly Road Business Hub, and that they were both "commercial sites". It was recorded that a DA for these sites had either not been provided or could not be located on the council site. It was noted that the description of works for the Bringelly Road Business Hub was the construction of a retaining wall, underground service and heavy vehicle road, which "was Non Habitable and irrelevant work". In relation to Lot 6 Bringelly Road Business Hub, it was noted that the description of the work was warehouse distribution and that this was "commercial and the referee was not licenced during the whole period". It was also noted that "Nearmaps confirms commercial sites". It was indicated that no experience at the Bringelly Road Business Hub Site or Lot 6 Bringelly Road Business Hub was accepted by the Respondent as the sites were commercial in nature.
Documents 1 and 3 adduced by the Applicant (part exhibit A2) appear to relate to the Bringelly Road Business Hub, including lot 6, referred to in the Building Experience forms completed by Mr Schimkat and Mr Monte, and indicate that the Bringelly Road Business Hub project is State Significant Development. The Applicant indicated that the documents were provided to demonstrate the significance of the project, including that it constituted State Significant Development. I have regard to Document 1 and Document 2 for this purpose but otherwise give the documents no further weight.

Grandview Ausbuilder Pty Ltd

The Applicant also relied on experience gained from his employment at Grandview Ausbuilder Pty Ltd (Grandview) and he provided a Referee's Statement from Mr Peter Liu dated 17 August 2023 that indicated that Mr Liu was the holder of a Qualified Supervisor Certificate/Contractor licence. The Referee's Statement attached a Building Experience form for the Applicant indicating that he had worked under Mr Liu's supervision on mixed purpose developments at a Building Site in Bankstown (Bankstown Site) for four months from 1 June 2017 to 1 October 2017 and on a Building Site at Villawood (Villawood Site) for 12 months from 1 October 2017 to 1 October 2018. The Applicant's roles and responsibilities at the Bankstown Site were said to have included the preparation of defect lists "for all 54 apartments".
The Home Building Licence Reassesment Sheet completed by an officer of the Respondent on 28 August 2023 indicated that the "DA" for both the Bankstown Site and the Villawood Site had been verified by Council and that the Bankstown Site related to the construction of a nine level residential flat building. The Villawood Site was said to relate to the construction of a ten storey "shop top" housing development.
On the same day, the officer spoke with Mr Liu to verify the Applicant's experience and to obtain further information, with a record of that phone call forming part of the s 58 documents. It was confirmed by the officer that Mr Liu had supervised the Applicant at the two Building Sites claimed and that the Applicant was onsite to manage the defects for each unit towards the end of the build at the Bankstown Site. Mr Liu confirmed the Applicant was part of the management team for the Villawood Site and was onsite for the demolition and the excavation of the site and the commencement of construction for the basement levels. Mr Liu confirmed that the work commenced and then stalled due to council rezoning.
Me Liu stated that he could not be "100% sure" that the Applicant was able to supervise every trade and was knowledgeable in every area to distinguish whether the work is being done is in accordance with the building code, due to the limited number of trades involved at the time that he was supervising the Applicant. He confirmed that the Applicant was not directly involved in the financial management of the site as this was Mr Liu's role but stated that the Applicant was involved in "take off" estimating relating to concrete orders. Mr Liu verified that the Applicant had experience with the beginning of a build and the end of a build. The officer noted that a "total of 9 months may be considered in conjunction with other acceptable experience in the future".

Applicant's Oral Evidence

In cross-examination, Mr Coss took the Applicant to the Instrument. The Applicant acknowledged that the HBA is to protect consumers but stated that it does not refer to commercial work. His evidence was to the effect that a number of trades and skills are used in both commercial and residential building work and gave the example of the construction a car park which can be both commercial and residential building work.
It was put to the Applicant by Mr Coss that the Applicant did not personally carry out trade work and that his role at CIP Constructions was primarily as a project manager. The Applicant's evidence was that a builder was not required to do all of the physical work on a project and that the supervision of a build was more important than banging a nail into a wall. He stated that he had completed his degree in 2017 and his Certificate IV in 2021 and that his role was to add value to a project and to ensure that it was delivered on time and within budget. The Applicant stated that he was not here to "punch nails" and that to gain his licence he needed two years of supervision, but was not required to do physical work.
The Applicant agreed that Mr Schimkat had not been accepted by the Respondent as a supervisor as he had not held the required licence at the relevant time and was not authorised to provide the Referee's Statement. He agreed that he instead relied on the Referee's Statement of Mr Monte that referred to the same duties, as well as a Referee's Statement from Mr Maroki in relation to his employment at Hansen Yuncken. The Applicant agreed that his roles and responsibilities for the Moorebank Site were as set out in the Building Experience forms. He stated that he did not do any physical work on that site and that his role was to co-ordinate the "subbies" and to make sure they knew their responsibilities.
Mr Coss put to the Applicant that the Instrument is no longer considered to be a policy document and accordingly that the experience criteria in the Instrument must be applied. The Applicant replied that if that is the law, then it is unfair and "not justice".
Once cross-examination was complete, the Applicant was given an opportunity to add to his answers or to clarify his evidence. He acknowledged that the HBA was very strict and that because Mr Schimkat had not held the relevant licence when he was supervising him, the Applicant had subsequently submitted a new reference from Mr Monte who did hold the relevant licence. He stated that due to the size of the project, he had more than one supervisor.
The Applicant went on to state that the HBA was not only for builders but for owners too and that it was very important for builders to understand the Australian building standards. He referred to the importance of being a good supervisor and the need for building works to be on time and on budget, and that financial control was one of the skills that was required to be a good builder. He indicated that the relevant standards did not mention the need to physically do the works. He referred to the document relating to the projects that he had worked on (exhibit A2) and that he wanted to show the Respondent the extent of those projects and to show that they were real projects. He stated that his experience was not in the office and that he attended on site every day between 7 am and 5 pm, sometimes even on Saturdays.
In response to questions put by me to clarify any building works undertaken by him, the Applicant stated that there was no requirement for him to carry out physical works and that he was able to supervise trades and ensure that work was done in accordance with the "Code". Following my questions, the parties were given an opportunity to ask questions or to adduce evidence in relation to any matters arising. Following further questions from Mr Coss, the Applicant indicated that he was working in a new role, but it was at an early stage, and he did not want to rely on it at this time. He acknowledged that the only experience that was accepted by the Respondent was nine months of experience gained whilst he was being supervised by Mr Liu.

Applicability of the Instrument

In an email to the Respondent dated 22 August 2023 (part exhibit R1), the Applicant referred to a number of tribunal decisions, including Shoobridge v Commissioner of Fair Trading [2015] NSWCATOD 42 (Shoobridge), which the Applicant relied upon for his submission that experience from commercial construction should be taken into account as it is equally relevant to residential building works, and that skills being developed within the commercial industrial work are equally applicable to residential building works.
In his Evidence and Statements document (exhibit A1), the Applicant also referred to a number of other tribunal decisions, including Wilmot v Commissioner for Fair Trading [2021] NSWCATOD 43 (Wilmot) in which the Tribunal held at [98] that the relevant instrument in that matter "is a policy which cannot displace the words of the statute". The Applicant submitted that the Instrument in this matter was essentially a policy document and should not be applied inflexibly by the Tribunal, and instead that the experience gained by him in commercial building should be considered as relevant experience for the purpose of his Application.
As referred to previously, the relevant amendments in relation to the qualification requirements in the HBA for contractor licences came into effect on 5 July 2021, and the relevant Instrument was gazetted on 15 December 2022. This occurred prior to the Applicant having lodged his Application on 24 April 2023. Having regard to the decision in Commissioner for Fair Trading, NSW Department of Customer Service v Kalkan [2022] NSWCATAP 112 (Kalkan), I am satisfied that this Tribunal is required to give effect to, and cannot review, the experience criteria specified in the Instrument.
Whilst the Applicant made reference to a number of previous decisions by the Tribunal, such as Shoobridge and Wilmot, these matters were decided prior to the amendments to the HBA and the Instrument being published in the Gazette, and accordingly provide little assistance to me in my determination of this matter.

The Instrument

The Instrument relevantly provides, that for an endorsed contractor licence in general building work to be issued, an applicant must demonstrate: At least two years' relevant industry Experience in a wide range of building construction work, where the majority of that Experience was obtained within 10 years of the date on which the application is made.
The Instrument relevantly contains the following definitions: "Experience" means experience gained by the applicant as: (a) an employee of;… … the holder of a contractor licence authorising the holder to do the class of residential building work in which the experience was gained ("the Work"), where the applicant, during the relevant period, was: ● supervised and directed in the doing of the Work by the holder of an endorsed contractor licence or qualified supervisor certificate authorising its holder to supervise the Work, and this is verified in the Relevant Application Form; and ● received Remuneration in accordance with law for the Work which the applicant carried out. … "Relevant Application Form" means the relevant application form for the Licence or Certificate that is being applied for, which is published on the NSW Fair Trading website, including the required attachments to that form. (Note - Applications are to be made in accordance with section 12 of the Licensing and Registration (Uniform Procedures) Act 2002) … "Residential building work" has the same meaning as in Schedule 1 Clause 2 of the Act. …
In the Instrument, "the Act" means the HBA. Schedule 1, cl 2 of the HBA is as follows: 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). (3) Each of the following is excluded from the definition of residential building work - (a) any work (other than specialist work) the reasonable market cost of the labour and materials involved in which does not exceed the amount prescribed by the regulations, (b) any work (other than specialist work) involved in the manufacturing of a moveable dwelling, within the meaning of the Local Government Act 1993 (other than a moveable dwelling that is a manufactured home within the meaning of that Act), (c) any work involved in the manufacture, assembly or erection of a moveable dwelling that is a manufactured home within the meaning of the Local Government Act 1993, other than - (i) specialist work, or (ii) work involving the connecting together on the site on which the manufactured home is installed of its major sections and any associated structures forming part of the manufactured home and attaching them to footings, (d) any work (other than specialist work) involved in the site preparation for, or the assembling or erection on site of, a moveable dwelling excluded by paragraph (b), unless the work requires development consent, (e) any work referred to in paragraph (d) done in relation to land on which a council has authorised a moveable dwelling to be placed by issuing an approval under the Local Government Act 1993, whether or not a development consent is also required, (f) any work that would otherwise be residential building work but that by or under another Act a person is prohibited from doing unless the person is the holder of a contractor licence or another authority under that other Act, but subject to subclause (4), (g) internal painting work, but subject to subclause (5), (h) any work (other than specialist work) done in relation to the removal and transport of a dwelling, but subject to subclause (6), (i) the supervision only of residential building work - (i) by a person registered as an architect under the Architects Act 2003, or (ii) by a person supervising owner-builder work for no reward or other consideration, or (iii) by any other person, if all the residential building work is being done or supervised by the holder of a contractor licence authorising its holder to contract to do that work, (j) demolition work, (k) any work involved in the installation of any material that forms an upper layer or wearing surface of a floor (even if installed as a fixture) and that does not involve any structural changes to the floor, but not including work involved in the installation of floor tiles unless the regulations otherwise provide, (l) any work that involves the installation or maintenance of any fixed apparatus such as a lift, an escalator, an inclinator or a garage door by means of which persons or things are raised or lowered or moved in some direction that is restricted by fixed guides. (4) Work referred to in subclause (3)(f) is not excluded from the definition of residential building work if it is part only of the work to be done under a contract to do residential building work. (5) Internal painting work is not excluded from the definition of residential building work (under subclause (3)(g)) if it is part only of the work to be done under a contract to do residential building work. (6) Work referred to in subclause (3)(h) is not excluded from the definition of residential building work if it is part only of the work to be done under a contract to do residential building work at the new site of the dwelling (whether or not that work is done under the same contract as the contract to remove and transport the dwelling). (7) The regulations may - (a) declare any work to be included in the definition of residential building work, or (b) declare any work to be excluded from the definition of residential building work.

Has the Applicant satisfied the Experience criteria specified in the Instrument

As set out above, the Instrument requires the Applicant to establish at least two years' relevant industry Experience in a wide range of building construction work, where the majority of that Experience was obtained within 10 years of the date of the making of his Application. The Application was submitted on 24 April 2023 and accordingly, all of the experience relied upon by the Applicant was obtained within ten years of the making of that Application.
The Respondent has accepted that a total of 9 months of the building experience obtained by the Applicant under Mr Liu may be considered in conjunction with other acceptable experience in relation to the Application and I also accept that the Applicant has established 9 months of relevant industry Experience for the purpose of his Application. It was not disputed that the further experience relied upon by the Applicant was gained by him as an employee and that he received Remuneration in accordance with the Instrument and I accept this to be the case.
It was conceded in cross-examination by the Applicant that Mr Schimkat did not hold the relevant contractor licence during the period of supervision relied upon by the Applicant, and that instead he relied upon the supervision provided by Mr Monte at the Bringelly Road Business Hub, including Lot 6, for a total period of 13 months and 16 days. On this basis, I give no further consideration to the Referee's Statement provided by Mr Schimkat, or the experience provided by him.
In addition to the work supervised by Mr Monte, the Applicant relied on the work supervised by Mr Maroki at the Moorebank Site for a total period of 13 months and 10 days.

Relevant industry Experience

The Respondent did not accept any of the experience gained by the Applicant under the supervision of Mr Maroki and Mr Monte on the basis that it was commercial in nature and does not amount to "relevant industry Experience". The Applicant did not contend that this work was residential building work under the HBA but submitted that it should still be considered as relevant experience. given that it had been obtained "on-site" and under the supervision of a supervisor recognised by the Instrument. In his administrative review application form, the Applicant indicated that the Respondent had asked for at least two years of relevant industrial experience in a wide range of building construction work but did not state that it must be residential work. It was the Applicant's position that commercial industrial skill sets are relevant to residential home building and should be taken into account as experience when applying for a contractor licence in general building work.
In the Evidence and Statement document, the Applicant made reference to the National Construction Code website and clarified that the building class types that he was claiming as experience included warehouses, factories, shops, restaurants, cafes and office buildings. He also provided an updated comparison table of various works that he submitted applied either to a "Standard house" or to "Standard Commercial/Industrial" or both. As an example, the table indicated that "concrete supply and placement" applied both to a Standard House and to Standard Commercial/Industrial. In his oral evidence the Applicant said that there was significant cross over between residential building work and the commercial building work that he had carried out. He gave evidence that there is no difference between building a car park in a commercial building and building one in a residential building.
The Applicant submitted that his commercial building experience was relevant to his Application and should be taken into account when considering the experience requirements for him to obtain a general contractor licence in "general building work" under the HBA. As referred to previously, the Applicant referred to a number of tribunal cases relating to the experience requirements, including Shoobridge and Wilmot. The Applicant placed great emphasis on a number of areas that were common to both commercial work and residential building work as well as the requirement for all builders to follow the National Construction Code.
The Applicant submitted that the HBA was just an Act for consumers and that it should not be applied to exclude commercial builders. He submitted that the general public would be assisted by having commercial builders become licenced under the HBA as commercial buildings had stricter controls, such as in relation to fencing. He also submitted that the inflexible application of the Instrument to his Application would result in injustice and that all applications should be determined on a case by case basis. The Applicant submitted that the HBA only applied to houses and to home owners and did not set out specific requirements. He submitted that commercial building and construction was still building work that should be taken into account in considering his Application.
For the purpose of these proceedings, the Respondent essentially submitted that the Applicant's experience gained under Mr Maroki and Mr Monte was not relevant to the Application as it related to non-habitable work and did not fall within the definition of residential building work in the HBA.

Consideration

The Tribunal in McGufficke v Commissioner for Fair Trading [2022] NSWCATOD 176 at [48] noted that "the overall purpose of the HBA is to protect consumers in the contracting for and the construction of residential buildings". The HBA does not only "apply" to consumers as was submitted by the Applicant. The Appeal Panel in Kalkan noted at [7] that Part 3 of the HBA establishes a licensing scheme for persons who contract to do "residential building work". Residential building work is defined in the HBA and the Instrument to include "any work involved in, or involved in co-ordinating or supervising any work involved in, the construction of a dwelling, which is designed or constructed for use as a residence": cl 2 of Sch 1. An individual must not do any residential building work except as, or on behalf of an individual, a partnership or corporation that is the holder of a contractor licence authorising its holder to contract to do that work: HBA, s 4. As referred to previously, the Respondent is empowered to grant contractor licences pursuant to s 19 of the HBA, in accordance with Part 2 (other than s 10) of the Licensing and Registration (Uniform Procedures) Act 2002. It is clear that the HBA relates to residential building work and has no application to commercial building.
I am satisfied that the Application is an application for a contractor licence and that the Respondent, and by extension this Tribunal, has the power to issue such a licence, subject to the requirements of the legislation. Pursuant to s 21 of the HBA, if a licence is granted, the holder is then authorised to contract with the public to do certain residential building work.
The definition of "Experience" contained in the Instrument refers to experience gained by the applicant as an employee of the holder of the contractor licence authorising the holder to do the class of residential building work in which the experience was gained ("the Work"). Accepting, for the purpose of consideration of this issue, that at all relevant times, Mr Maroki and Mr Monte held a contractor licence that authorised them to carry out residential building work, I am not satisfied on the evidence before me that any of the experience relied upon by the Applicant as being gained at Hansen Yuncken or CIP Constructions under the supervision of Mr Maroki or Mr Monte, related to any class of "residential building work".
The definition of "residential building work" in the HBA, and adopted in the Instrument, relates to work involving a "dwelling". A "dwelling" is defined in cl 3(1) of Sch 1 of the HBA to mean the following: (1) In this Act, dwelling means a building or portion of a building that is designed, constructed or adapted for use as a residence (such as a detached or semi-detached house, transportable house, terrace or town house, duplex, villa-home, strata or company title home unit or residential flat).
Whilst cl 3(2) of Sch 1 of the HBA includes a number of structures and improvements in the definition of "dwelling", such as fences and gates, retaining walls, driveways, paths and other paving, such structures or improvements are required to be constructed for use in conjunction with a dwelling. There is no evidence before me that the experience relied upon by the Applicant at Hansen Yuncken or CIP Constructions related to dwellings or to any work in conjunction with a dwelling.
The Referee's Statement forms that were completed by Mr Maroki and Mr Monte each include the following words: "This Referee's Statement is for applicants applying for a General Building Work (Builder) licence (Q) or certificate to do or supervise residential building work. Residential building work refers to activities such as a new dwelling construction, making alteration, additions, repairing or renovating a building or portion of a building used as a dwelling. It also includes work to other structures such as swimming pools and garages."
The Referee's Statement form also contains a note to the Referee to refer to the detailed definition of "Experience" contained on the Fair Trading webpage. The box that has been ticked by both Mr Maroki and Mr Monte on the relevant Building Experience forms is that relating to "Construction of new multi-dwelling housing or residential flat buildings".
The two Building Experience forms completed by Mr Maroki identify only one Building Site where he supervised the Applicant, namely the Moorebank Site and indicates that the type of construction on the site was "Mixed purpose developments Class 5, 7b". The evidence from the Applicant in his Evidence and Statements document was that Class 5 relates to "Office buildings used for professional or commercial purposes" and that Class 7b relates to buildings that "are typically warehouses, storage buildings or buildings for the display of goods (or produce)…". This is consistent with the Applicant's oral evidence and the documents adduced by the Applicant relating to that project. It is clear that office buildings and warehouses are not multi-dwelling housing or residential flat buildings as stated in the Building Experience forms and that work in relation to the Moorebank Site is not residential building work. The Applicant acknowledged that the work that he carried out at the Moorebank Site was commercial construction and I find this to be the case. Accordingly, I find that the none of the experience gained by the Applicant whilst being supervised by Mr Maroki related to residential building work.
The Building Experience Form completed by Mr Monte identifies the Bringelly Road Business Hub and Lot 6 of the Bringelly Road Business Hub as the only Building Sites where he has supervised the Applicant. Mr Monte did not specify any approved "DA/CDC" work at the Bringelly Road Business Hub and in relation to Lot 6, Bringelly Road Business Hub he indicated that the construction type was "Class 7b,8,6,5. Warehouse or distribution centres". The evidence from the Applicant in his Evidence and Statements document relating to Class 7b and Class 5 has been set out above. The Applicant stated that Class 8 related to "a factory" and Class 6 related to "buildings" that are "typically shops, restaurants and cafes". This is consistent with the Applicant's oral evidence and the document adduced by the Applicant relating to that project. It is clear that such buildings are not multi-dwelling housing or residential flat buildings as stated in the Building Experience form and that work in relation to these sites is not residential building work. The Applicant acknowledged that the work that he carried out at the Bringelly Road Business Hub site, including Lot 6, was commercial construction and I find that this was the case. Accordingly, I find that none of the experience gained by the Applicant whilst being supervised by Mr Monte related to residential building work.
The Applicant contended that the commercial projects that he has completed were complex and that the co-ordination and difficulties involved, "highly exceeded" those relating to a "house/duplex/townhouse". Whilst I accept that some of the commercial work carried out by the Applicant whilst employed at Hansen Yuncken and CIP Constructions may have included elements that were complex or had commonality with residential building work, the Instrument does not provide for a class of work from another industry to be recognised as "Experience". Rather, the Instrument requires that the "Work" in which the experience was gained to be in the "class of residential building work" which the supervisor is authorised to do. Even if Mr Maroki or Mr Monte held the relevant authority, the work carried out by the Applicant under their supervision was commercial in nature and was not in a class of residential building work. As a consequence, such work does not meet the definition of "Work" or "Experience" contained in the Instrument.
Having regard to all of the matters referred to above, I find that the experience gained by the Applicant under Mr Maroki and Mr Monte does not fall within the meaning of "Experience" set out in the Instrument. Other than the experience provided by Mr Liu, the Applicant did not adduce any evidence in relation to any further experience that he relied on for his Application, including in residential building work. Accordingly, I am not satisfied that he has established that he has at least two years relevant Experience in accordance with the Instrument.
Having made this finding, it is not necessary for me to further consider whether or not Mr Maroki or Mr Monte were qualified to provide the Referees' Statements for the Applicant's work at Hansen Yuncken or CIP Constructions.

Wide range of building construction work

I note that even if I had accepted that the Applicant's experience in commercial construction was relevant industry Experience for the purpose of the Instrument, the Applicant would also be required by the Instrument to establish that the Experience gained by him was "in a wide range of building construction work".
In Hall v Commissioner for Fair Trading [2023] NSWCATOD 59, Senior Member Dinnen summarised at [21] a number of previous decisions relating to "a wide range of building construction work" as follows: However, as discussed at [21] to [26] of Issa v Commissioner for Fair Trading [2022] NSWCATOD 159 there is nothing limiting the Tribunal's consideration of what exactly the criteria of "a wide range of building construction work" means in the context of an applicant's past work experience. It is not a requirement that an applicant should have constructed a house from start to finish: Vitogiannis v Commissioner for Fair Trading, Department of Customer Service [2020] NSWCATOD 157 at [45]; Wilmot v Commissioner for Fair Trading [2021] NSWCATOD 43 at [90]; Tange v New South Wales Fair Trading [2013] NSWADT 201. Nor is it a requirement that an applicant has experience in all aspects of building work, provided the experience is sufficiently wide: Price v Commissioner for Fair Trading [2020] NSWCATOD 93; Locking v Department of Finance and Services [2013] NSWADT 239; Sollazzo v Commissioner of Fair Trading [2015] NSWCATOD 20.
In Locking v Department of Finance and Services [2013] NSWADT 239, the Tribunal affirmed the decision of the Respondent to refuse Mr Locking's application for a contractor licence in the category of general building work as he had not satisfied a minimum of two years relevant industry experience in "a wide range of building construction work". In reference to Mr Locking's experience in carpentry and joinery work, the Tribunal said at [17]-[19]: 17. This experience 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. 18. 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 Mr Locking'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. 19. 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.
In Price v Commissioner for Fair Trading [2020] NSWCATOD 93 (Price) the Tribunal found at [60] that Mr Price's experience related "primarily to work in renovating bathrooms with some work in kitchens" and held at [62] that "it cannot be said that Mr Price undertook a wide range of building construction work on projects over the preceding 10 years". The Tribunal stated at [70]-[71]: 70. Mr Price argued that his 37 years in the building industry provided sufficient experience for him to obtain a builders licence. He held a builders licence between 2002 to 2009 and has held other licences in the building industry. He argued that he is familiar with the building code and the standards. He contended that a carpenter is able to supervise all of the trades and is experienced in all the fundamental structural principles. He stated that he had supervised other tradespersons. Mr Buttigieg stated that this occurred when he himself left a site to pick something up. Mr Price argued that the principles attached to building or renovating a bathroom or kitchen are the same as those in relation to other aspects of building a house. However, the Tribunal notes that the Instrument focuses on demonstration of the Applicant's experience in work. That is the evidence needs to show that the Applicant has had experience in undertaking the kind of work expected of the contractor. This is not the same as understanding the principles. In this respect, the Tribunal notes there are different principles that apply in the areas of plumbing, tiling, waterproofing, carpentry and painting. Each of these callings has its own applicable skills. 71. Mr Price has not demonstrated that he has the breadth of experience required for a licence in the category of general building work. There is a lack of evidence that Mr Price has, as required by the Instrument, a minimum of two years relevant industry experience in a wide range of construction work - the majority of which has been obtained in the 10 years prior to application. In the circumstances of this case, I see no reason to depart from the requirements of this aspect of the Instrument. I do not consider that application of the policy in this case on the basis of the evidence put before the Tribunal would produce an unjust decision. On the evidence before me I cannot be satisfied that Mr Price's experience is such that, although he may not strictly meet the requirements of the Instrument, he has otherwise demonstrated with evidence that he has extensive relevant experience which would qualify him to be granted a contractor licence in the category of general building work. No clear evidence was placed before the Tribunal that Mr Price had undertaken this role in the 10 years prior to the lodging of the application, or outside of this timeframe.
The roles and responsibilities of the Applicant during the nine months of experience provided by Mr Liu are set out above, and consisted of experience with the beginning of a build and the end of a build. Mr Liu advised the Respondent that the Applicant was responsible for managing trades on site on a daily basis but indicated that there were a limited number of trades involved at the time he was supervising the Applicant.
Mr Maroki listed the Applicant's roles and responsibilities at the Moorebank Site as follows (sic): "● Design coordination between consultants to mitigate service clashes including shopdrawing coordinations ● Coordinating with Authorities for CC approvals ● Liaise with Subcontractors regarding contractual requirements ● ITP's for works onsite including underground services, structural, concrete, wall, roof cladding and finishing trades. ● Site supervise and coordination between subcontractors to meet construction programme ● Assessing Subcontractor variations and monthly claims; - Time, cost control of the project."
Mr Monte listed the Applicant's roles and responsibilities at the Bringelly Road Business Hub, including Lot 6, as follows (sic): "● Civil works for the Bringelly Business Hub, including major underground services for all subdivisions, building of Skyline Crescent Road and merging into existing main road, including sensor loops for traffic lights as well as management of asbestos and gas line ● Design co-ordination for all trades including civil, stormwater, portable water, HV and comms to prevent service clashes, including stormwater rainoff to council ESC requirements to the existing bio-basin. ● Supervising and organising site works including sequencing and management of unknown event for example, chemical spill from a sweeper and findings of unknown redundant asbestos underground pipeworks. ● Management of civil cut/fill including import and export of materials ● Liaising with council regarding accessibility using shared road Communicating with client and Subcontractors regarding Head Contract claims and Subcontract claims under SOPA ● Design and Construct 22.052 m2 of site area consisting of two storey offices, showroom, workshops, dangerous goods storage and spare parts warehousing. ● Performing ITP's (Inspection Testing Plans) ● Design coordination ● Concrete and reinforcement measurement and ordering ● Site coordination between various subcontractors ● Assisting with Client Progress Claims and assessing Subcontractor claims."
Whilst a number of the roles and responsibilities referred to above suggest that the Applicant was possibly supervised in carrying out some rectification and construction work at the various Building Sites, the Applicant's primary roles and responsibilities were related to project management including design and site co-ordination. The Applicant stated that he was also involved in document control, which he stated was a very important part of building. In evidence, the Applicant said that a builder is not required to do all of the physical work on a project and that the supervision of a build is more important than banging a nail into a wall. He stated that he had completed his degree in 2017 and his Certificate IV in 2021 and that his role was to add value to a project and to ensure that it was delivered on time and within budget. The Applicant stated that he was not here to punch nails and that to gain his licence he needed two years of supervision but was not required to do physical work.
The Instrument refers to Experience in a "wide range of building construction work". As the HBA allows the holder of a contractor licence in general building to contract with the public, it is clear that the licence holder is required to have the skills to negotiate a contract, quote for a project and co-ordinate the trades to complete a project on time and within budget. However, this is not all that is required of a licence holder and I agree with the Tribunal's comments in Price, that the Instrument focuses on demonstration of the Applicant's experience in work and that the evidence needs to show that the Applicant has had experience in undertaking the kind of work expected of the contractor and that displaying an understanding of the relevant principles is not the same as having the relevant experience in carrying out the work.
Whilst I accept that the criteria of "a wide range of building construction work" does not require that an applicant should have constructed a house from start to finish: Vitogiannis v Commissioner for Fair Trading, Department of Customer Service [2020] NSWCATOD 157 at [45], it is clear that a breadth of experience is required, including experience in undertaking the kind of work expected of the contractor. A building contractor has overall responsibility for a site and must be able to supervise all of the trades required to complete any type of dwelling and to determine that all trades have complied with all standards and requirements.
Whilst I accept that the Applicant has obtained the necessary qualifications and states that he understands the principles relating to general building work, there is no evidence that he has previously held any type of licence or certificate and it is not clear if he has ever carried out any physical trade or building work on any commercial or residential project. His evidence suggested that he had perhaps not even banged "a nail into a wall" as he said that that the supervision of a build was much more important and that his role was to add value to a project and to ensure that it was delivered on time and within budget. Even if I was to draw an inference that the Applicant has some practical building or trades experience, I am unable to be satisfied that such experience is in a wide range of building construction.
Having regard to all of the evidence before me, I am not satisfied that the Applicant has established that he has undertaken a wide range of building construction work in commercial developments, let alone in relation to residential building work. Accordingly, for the reasons set out previously, I am not satisfied that the Applicant has established experience in a wide range of building construction work or that such experience was obtained in residential building work.
I have previously held that this Tribunal is required to give effect to, and cannot review, the experience criteria specified in the Instrument. In my view, even if I had reached a contrary position, the application of the experience requirements in the Instrument do not produce an unjust decision for the Applicant in this matter as even taking into account the commercial experience relied upon by the Applicant, I would not have been satisfied that the Applicant has demonstrated extensive relevant experience to justify him being qualified for a contractor licence in the category of general building work.

Conclusion

Having regard to the findings made above, I am not satisfied that the Applicant has established that he has at least two years' relevant industry Experience in a wide range of building construction work and that he meets the requirements of s 33D(1)(b) or s 33(1)(b)(i) of the HBA. Accordingly, the HBA provides that a contractor licence must not be issued.
It follows that that the correct and preferable decision in this matter is to affirm the Respondent's decision and to refuse the Application.

Order 1. The decision under review is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 May 2024

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