Dimascio v Commissioner for Fair Trading, Office of Fair Trading

[2006] NSWADT 144

CITATION:	Dimascio v Commissioner for Fair Trading, Office of Fair Trading [2006] NSWADT 144
DIVISION:	General Division
PARTIES:	APPLICANT Alfonso Dimascio RESPONDENT Commissioner for Fair Trading, Office of Fair Trading
FILE NUMBER:	053355
HEARING DATES:	17/01/2006
SUBMISSIONS CLOSED:	01/17/2006
DATE OF DECISION:	05/17/2006
BEFORE:	Pearson L - Judicial Member
CATCHWORDS:	Home Builder - issue of contractor licence - Home Building Act - home builder - issue of contractor licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Home Building Act 1989 Home Building Amendment Act 2004
CASES CITED:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Burke v Director General, Department of Fair Trading (No 2) [2002] NSWADT 143 Calleia v Commissioner of Fair Trading [2005] NSWADT 42 Hughes & Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 Re Webb and Tax Agents’ Board of Queensland (1992) 28 ALD 464 Tomoski Developments Pty Ltd v Commissioner for Fair Trading [2005] NSWADT 263
REPRESENTATION:	APPLICANT In person RESPONDENT F Campora, solicitor
ORDERS:	1. The decision of the Commissioner for Fair Trading to refuse to restore Mr Dismascio’s Contractor Licence is set aside; 2. The matter is remitted for reconsideration with the direction that, subject to his meeting any other relevant criteria, Mr Dimascio should be issued with a Contractor Licence.

1 Mr Dimascio has held an individual Contractor Licence under the Home Building Act 1989 ("the HBA") for over 20 years. His licence expired on 16 April 2005, and on 17 May 2005 he applied for restoration of the licence.

2 Mr Dimascio and his wife were directors of Dima Homes Pty Ltd. A liquidator was appointed on 25 June 1998 and this company was deregistered on 17 December 1999. Mr Dimascio and his wife were also directors of Dima Homes (NSW) Pty Ltd. A liquidator was appointed to that company on 13 February 2003. Mr Dimascio and his son were directors of Sorena Constructions Pty Ltd when that company applied for a Contractor Licence on 27 May 2004. This application was refused on 24 January 2005. It is not in dispute that Mr Dimascio's involvement in Dima Homes Pty Ltd was not disclosed when Dima Homes (NSW) Pty Ltd applied in 2000 for a Contractor Licence; and that his involvement in Dima Homes (NSW) Pty Ltd was not disclosed when Sorena Constructions Pty Ltd applied in 2004 for a Contractor Licence.

3 On 24 June 2005 a delegate of the Commissioner refused to renew Mr Dimascio's individual Contractor Licence. The basis for the delegate's decision was that Mr Dimascio was a director of a company that had been voluntarily wound up, and thus did not meet the requirements of clause 39A(1)(c) of the Home Building Regulation 2004 ("the HBR").

4 Mr Dimascio requested internal review, and on 2 September 2005 the decision was affirmed.

5 On internal review, an additional ground for refusal was that because of his failure to disclose his involvement in Dima Homes Pty Ltd and Dima Homes (NSW) Pty Ltd in the applications made by Dima Homes (NSW) Pty Ltd and Sorena Constructions Pty Ltd, Mr Dimascio had not satisfied the Commissioner that he was a fit and proper person to hold the authority under section 40(1)(a) of the HBA.

6 Mr Dimascio has applied to the Tribunal for review of the Commissioner's determination.

Issues

7 The Tribunal's task is to make the correct and preferable decision having regard to the material before it. After the application for review was lodged, and before the hearing, Dima Homes (NSW) Pty Ltd was deregistered.

8 There are three issues to be determined by the Tribunal:

(i) whether it is satisfied that Mr Dimascio is a fit and proper person to hold the authority as required by section 40(1)(a) of the HBA;

(ii) whether, for the purposes of clause 39A(1)(d) of the HBR, it can be satisfied that Mr Dimascio took all reasonable steps to avoid the liquidation of Dima Homes (NSW) Pty Ltd; and

(iii) whether the decision not to restore Mr Dimascio’s authority was the correct and preferable decision.

9 Section 40 of the HBA relevantly provides:

40 Renewal or restoration of authorities

(1) The Director-General must reject an application for the renewal or restoration of an authority if:

(a) the Director-General is not satisfied that the applicant is a fit and proper person to hold the authority, or

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

(c) the applicant is disqualified by this Act or the regulations from holding the authority or would be so disqualified when the renewal would take effect, or

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

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

(2) The Director-General may reject an application for renewal or restoration of an authority if:

(a) further particulars requested from the applicant are outstanding, or

(b) the authority is surrendered or cancelled before it is due to expire, or

(e) a judgment against the applicant for money owed to the Director-General is not satisfied, or

(f) the authority is a provisional authority, or

(g) the Director-General is empowered to reject the application by the regulations.

10 Clause 39A of the Home Building Regulation 2004 relevantly provides:

39A General requirements for renewal or restoration of authorities

(1) Before an authority is renewed or restored, the Director-General must be satisfied that each relevant person:

(a) is not a mentally incapacitated person, and

(b) is not disqualified from holding the authority, and

(c) is not bankrupt and is not a director or person concerned in the management of a company that is the subject of a winding up order or for which a controller or administrator has been appointed or that has been voluntarily wound up, and

(d) was not bankrupt and was not a director or person concerned in the management of a company when the company was the subject of a winding up order, or when a controller or administrator was appointed, within a period of 3 years before the date of application, unless the Director-General is satisfied that the person took all reasonable steps to avoid the bankruptcy, liquidation or administration, and

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

(f) has not had what the Director-General considers to be an unreasonable number of complaints made against him, her or it, and

(g) has not had what the Director-General considers to be an unreasonable number of formal cautions given to him, her or it, and

(h) has not had what the Director-General considers to be an unreasonable number of penalty notices issued against him, her or it (being penalty notices for offences under the Act that were not dealt with by a court and dismissed), and

(i) has not carried out work in respect of which the Director-General considers an unreasonable number of insurance claims have been paid.

11 There was no dispute as to the relevant history of Dima Homes Pty Ltd, Dima Homes (NSW) Pty Ltd and Sorena Constructions Pty Ltd. The following summary (in paras [12] to [14] below) is taken from the ASIC records provided by the respondent.

12 Mr Dimascio and Mrs Dimascio were directors of Dima Homes Pty Ltd from 26 January 1984 until it was deregistered on 15 December 1999. A liquidator was appointed on 25 June 1998.

13 Dima Homes (NSW) Pty Ltd was first registered on 12 January 1999. Mr Dimascio and Mrs Dimascio were directors from 13 May 1999. Dima Homes (NSW) Pty Ltd applied for a Contractor Licence on 9 February 2000, and Contractor Licence 111645C was granted on 15 May 2000. A liquidator was appointed on 13 February 2003. Contractor Licence 111645C expired on 18 August 2003. The company was deregistered on 17 September 2005.

14 Mr Dimascio and his son Mr Guerino Tony Dimascio were directors of Sorena Constructions Pty Ltd when it applied on 27 May 2004 for a Contractor Licence. Mr Dimascio ceased as director on 12 September 2005.

15 Question 10 of the Department of Fair Trading Form L6 Application for a Contractor Licence – Company/Partnership is as follows:

Has any director/member in the last 7 years been bankrupt or assigned their property to pay debts or ever been a director or manager of a company which was wound up, placed in receivership or under official management or entered into other arrangements with creditors due to insolvency?

16 There was no dispute that Question 10 was answered by crossing the box marked “No” in the applications made by both Dima Homes (NSW) Pty Ltd and Sorena Constructions Pty Ltd.

Mr Dimascio’s case

17 Mr Dimascio gave evidence that he obtained his first licence in 1978. He has been a bricklayer for 40 years. He took over Dima Homes Pty Ltd in 1984 because he needed a company to lay bricks. That company needed a licence. There was a dispute over an insurance claim and the company was put into liquidation. He was not happy with the way in which his accountant handled the matter and so he sought advice from a new accountant. That accountant advised him to set up a new company, which was Dima Homes (NSW) Pty Ltd. The accountant filled out the application by Dima Homes (NSW) Pty Ltd for a Contractor Licence. Mr Dimascio confirmed that he signed the application on the cover page. Mr Dimascio said that he trusted the accountant to fill out the form and he did not read it before he signed it.

18 Dima Homes (NSW) Pty Ltd was used for building work and bricklaying. The accountant was supposed to do the tax for him. The accountant said that he had to liquidate the company because it owed tax and insurance money and there was not sufficient funds. This advice came perhaps two months before the company went into liquidation.

19 Mr Dimascio said that at that time the company was not making much money. If he was doing a small extension he would use his personal Contractor Licence. Mr Dimascio was not clear as to why he sometimes did work through the company and sometimes on his personal Contractor Licence.

20 Mr Dimascio said that the same accountant suggested that he set up Sorena Constructions Pty Ltd. The accountant again filled out the application for a Contractor Licence and asked him to sign.

21 Mr Dimascio was cross examined, and said that the accountant told him to put Dima Homes (NSW) Pty Ltd into liquidation. Now he knows he could have traded his way out. The company had held a licence since 2000 and it was a minor thing how much it owed. When the Contractor Licence was renewed in 2002 the home warranty insurance was reduced which restricted the company to doing work under $12,000. This decision was made at that time because of the nature of the company’s work at the time, and not because the company was in difficulty. The reason for the liquidation was the outstanding tax. When the application was made by Sorena Constructions Pty Ltd he just read the front page to see that his name and address were correct. He expected the forms to be filled out correctly. He was upset that Dima Homes (NSW) Pty Ltd went into liquidation because it was his work and belonged to him. The money paid to the liquidator could have paid the tax bill. Once the company was in liquidation he wanted to pull out. He was not quick enough to have stopped the liquidation. He has changed accountants since the problem with Sorena Constructions Pty Ltd.

Respondent’s case

22 The respondent relied on Mr Dimascio’s failure to disclose in the applications made by Dima Homes (NSW) Pty Ltd and Sorena Constructions Pty Ltd that he had been a director of a company which had been wound up or subject to official management to argue that he is not a fit and proper person to be the holder of a Contractor Licence. The respondent submitted that in not disclosing his directorships, the applicant had shown that he is not honest in his dealings with the licensing authority. The respondent submitted that the applicant had been a director of two companies that had failed within a period of five years, in both cases leaving creditors out of pocket. In particular, the Australian Taxation Office was a creditor of both companies, and the failure to make proper provision for payment of tax was a serious deficiency.

23 The respondent submitted that the applicant had not provided evidence of any steps taken to avoid the winding up of Dima Homes (NSW) Pty Ltd.

24 In oral submissions the respondent’s solicitor conceded that the quality of building work undertaken by Mr Dimascio is not in issue, and the Department records show no recent complaints.

Fit and Proper Person

25 The Commissioner must reject an application for the renewal or restoration of a Contractor Licence if not satisfied that the applicant is a fit and proper person to hold the Contractor Licence: s40(1)(a) HBA. The term “fit and proper” is not defined in the HBA. Subsection 40(1A) requires the Tribunal to consider whether the applicant “is of good repute, having regard to character, honesty and integrity”.

26 This Tribunal has frequently cited the decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 as a guide to the meaning of “a fit and proper person”. In that case Toohey and Gaudron JJ stated (at 380):

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

27 Their Honours further stated (at 388):

The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.

28 The decision whether or not to grant a licence must be considered keeping in mind the activities in which the person will be engaged: Hughes & Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 at 156-7.

29 The respondent pointed to two matters which it argued went to the issue of whether Mr Dimascio is “a fit and proper person”. The first matter was his failure to disclose his involvement as director of Dima Homes Pty Ltd and Dima Homes (NSW) Pty Ltd in applications made by Dima Homes (NSW) Pty Ltd and Sorena Constructions Pty Ltd for contractor licences. Mr Dimascio stated that he had signed the relevant forms without checking the contents, and that he had relied on his accountant to complete the forms accurately. Character references dated 19 May 1999 provided by Mr Ross Gullo for Mr Dimascio and Mrs Dimascio in support of the application made by Dima Homes (NSW) Pty Ltd for Contractor Licence appears to bear the same handwriting as that used to complete the application by Dima Homes (NSW) Pty Ltd for a Contractor Licence. The application was lodged by Ross Gullo & Co on 19 May 1999. The same handwriting appears to have been used in the application made by Sorena Constructions Pty Ltd for a Contractor Licence on 21 May 2004. The Tribunal accepts the evidence of Mr Dimascio that his accountant at the time completed the applications for Contractor Licences made by Dima Homes (NSW) Pty Ltd and Sorena Constructions Pty Ltd, and that Mr Dimascio signed as Director on the cover page.

30 The issue is the extent to which Mr Dimascio was aware of, or checked, the information contained in the form. Mr Dimascio’s accountant was not called to give evidence on this issue, and the Tribunal has only the explanation provided by Mr Dimascio. Mr Dimascio acknowledged at the hearing that he had an obligation to make sure that the information provided to the Office of Fair Trading was correct.

31 It is not unusual for the proprietors of businesses such as those conducted by the applicant to rely on their accountants or other professional advisers to complete paperwork necessary for dealings with various government agencies. However, this explanation is not consistent with a letter dated 22 February 2005 in response to the refusal of Sorena Construction Pty Ltd’s application for a Contractor Licence. In the letter of 24 January 2005 the reason for refusal was stated to be a failure to disclose his involvement with Dima Homes (NSW) Pty Ltd in question 11 (which must be a reference to question 10 on the printed form). In his response, the applicant stated:

It was not intentional by us not to answer question 11 of the application and give false and misleading statements as we thought that was no monies owing to any creditors etc. therefore it was not necessary to answer this question.

32 The applicant’s evidence was that he had changed accountants at the time that Dima Homes Pty Ltd went into liquidation because he was unhappy with the accountant who had been advising him. He chose the new accountant because he was also Italian, and this new accountant advised him to set up a new company. It is unlikely that the subject of Mr Dimascio’s unhappiness at the winding up of Dima Homes Pty Ltd was not discussed in the context of establishing Dima Homes (NSW) Pty Ltd, and thus in the context of its application for a Contractor Licence. Sorena Constructions Pty Ltd was registered on 29 January 2003, some 3 weeks before Dima Homes (NSW) Pty Ltd was placed into liquidation. That process was ongoing at the time that Sorena Constructions Pty Ltd applied for a Contractor Licence in May 2004. It is equally unlikely that the fate of Dima Homes (NSW) Pty Ltd was not discussed at that time.

33 The second matter raised by the respondent was Mr Dimascio’s involvement in two companies engaged in building activities which had failed within a period of 5 years. Based on the documents filed with ASIC, on the liquidation of Dima Homes Pty Ltd proofs of debt amounted to $20,399.20, and the dividend paid was $14,703.74. The three unsecured creditors were the company’s accountant, Commercial Union Workers Compensation NSW Ltd (the petitioning creditor), and the Australian Taxation Office. Proofs of debt for Dima Homes (NSW) Pty Ltd amounted to $44,990.00, the creditors being the Australian Taxation Office and the company accountant. In a report provided by the liquidator of Dima Homes (NSW) Pty Ltd it was noted that there were no company accounts for the financial years 30 June 1999, 2000, 2001 or 2002, and it appeared that no Business Activity Statement returns were lodged after 30 September 2000. In both instances, the major creditor was the Australian Taxation Office, and the respondent argued that failure to make sufficient provision for the payment of tax is a serious deficiency. Under cross examination, Mr Dimascio stated that the primary reason for the liquidation of Dima Homes (NSW) Pty Ltd was the tax liability.

34 Under cross examination, Mr Dimascio stated that he was not fully aware of the financial position of Dima Homes (NSW) Pty Ltd, as the accountant was doing the books and doing the tax. In a letter to the Office of Fair Trading dated 16 September 2004 Mr Dimascio explained the circumstances of the liquidation of Dima Homes (NSW) Pty Ltd in the following terms:

1. Various building companies for which I did bricklaying work for did not pay me for the bricklaying services done as either they went broke or reduced my claims for work done as they thought at the end the price was too high as they changed their mind.

2. My company also done some bathroom renovation work for private people and I had the same problem as mentioned in point (1) above as they did not want to pay me the right price at the end of the job.

3. I tried to get more work to cover my running costs of the company as I had lost money on other work as mentioned above but was very difficult as there was a lot of competition in the building game.

4. I tried to stop to put the company into liquidation but after my accountant look at my books and saw that I was unable to continue to pay my bills he suggested I speak to a administrator to look at the company’s books to try to continue trading but due to the debts I had I could not afford pay them and had to put the company into liquidation.

35 In a letter dated 17 September 2004 addressed to the Office of Fair Trading, Mr Ross Gullo, accountant for Dima Homes (NSW) Pty Ltd, stated that:

Accordingly, we wish to advise that our firm has advised the company director in reference to his new company how to adopt a new plan as to financial advice in running the business and also strategies in being more selective in choosing the right people to conduct work for and budgeting processes.

36 The applicant’s case was that he relied on the advice of his accountant in relation to all these matters, namely, in establishing Dima Homes (NSW) Pty Ltd; in managing the tax affairs of Dima Homes (NSW) Pty Ltd; and in completing the applications made by Dima Homes (NSW) Pty Ltd and Sorena Constructions Pty Ltd. The Tribunal is not satisfied, for the reasons outlined in para [31], that Mr Dimascio was entirely unaware of the content of the information provided to the respondent in the applications made by Dima Homes (NSW) Pty Ltd and Sorena Constructions Pty Ltd. Whether or not he was aware, he had an obligation to ensure that the information contained in the applications was correct, as stated on the cover page in the following terms:

I declare that the information contained in or attached to this application is complete and true to the best of my knowledge.

37 The applicant provided two character references to the respondent, one written by a supplier. Both references attest to Mr Dimascio’s competence and reliability as a builder. The Tribunal has had regard to the applicant’s long history of engagement in the building industry, and the absence of complaints or concerns as to his competency as a bricklayer or builder. While the failure to advise the respondent of his involvement as director in Dima Homes Pty Ltd and Dima Homes (NSW) Pty Ltd was a serious oversight, the Tribunal considers that on the totality of the evidence Mr Dimascio’s conduct is not such as to warrant the conclusion that he is not a fit and proper person to hold the Contractor Licence.

Steps to avoid liquidation

38 The second issue concerns the application of reg 39A, which applies by virtue of subsection 40(2)(g) of the HBA. The ASIC records for Dima Homes (NSW) Pty Ltd show that a liquidator was appointed on 13 February 2003, and the company was deregistered on 17 September 2005. At the time of the primary decision, and the decision on internal review, Dima Homes (NSW) Pty Ltd was in liquidation, and the respondent relied on paragraph 39A(1)(c). However, by the time of the hearing, and the Tribunal’s decision, Dima Homes (NSW) Pty Ltd had been deregistered. The Tribunal is engaged in review of the decision of the respondent on the basis of the facts up to the date of this decision: Re Webb and Tax Agents’ Board of Queensland (1992) 28 ALD 464, and accordingly, the relevant provision is paragraph 39A(1)(d).

39 There is no dispute that Mr Dimascio was a director of Dima Homes (NSW) Pty Ltd when the company was the subject of a winding up order, or when a controller or administrator was appointed, within a period of 3 years before the date of the application for restoration of the Contractor Licence. The Tribunal must therefore consider whether Mr Dimascio took all reasonable steps to avoid the liquidation.

40 In Calleia v Commissioner for Fair Trading[2005] NSWADT 42 Deputy President Hennessy summarised the applicable principles as follows:

- The relevant time for determining whether an applicant took all reasonable steps to avoid the liquidation is when he or she was ‘faced with the possibility’ of the bankruptcy or insolvency ( Davidson v Commissioner for Fair Trading [2004] NSWADT 200 at [20]) or was ‘aware’ or ‘should have been aware’ ( McDonald v Commissioner for Fair Trading [2004] NSWADT 124 at [21]) of that possibility.

- The focus must be on the steps the person took to avoid the bankruptcy (or liquidation) in question, not bankruptcy (or liquidation) at large: Smart v Commissioner for Fair Trading [2005] NSWADT 33 per Rice JM.

- In assessing the reasonableness of the steps taken to avoid liquidation, the Tribunal must examine all the relevant facts and circumstances. (McDonald at [25].)

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

- The applicant must satisfy the Commissioner (and ultimately the Tribunal) that he or she took all reasonable steps to avoid the liquidation. (Clarke v Commissioner of Fair Trading, Office of Fair Trading [2004] NSWADT 273 at [11].)

41 The questions which the Tribunal must ask are:

i) When did Mr Dimascio become aware, or when should he have become aware, of the possibility of the liquidation in question?

ii) What steps did Mr Dimascio take, or fail to take, after that time?

iii) Has Mr Dimascio satisfied the Tribunal that those steps were objectively reasonable in all the circumstances?

42 Mr Dimascio’s oral evidence on the issue of when he became aware of the possibility of the liquidation of Dima Homes (NSW) Pty Ltd was to the effect that it was only shortly before the decision was made. In his letter to the respondent dated 16 September 2004 explaining the circumstances of the liquidation of Dima Homes (NSW) Pty Ltd, Mr Dimascio refers to the “running costs” of the company. In his oral evidence he stated that it was the taxation liability which forced the company into liquidation, and presented himself as having had little option but to accept the advice of his accountant.

43 The sequence of events described by Mr Dimascio was consistent with his assertion that he had relied on his accountant to manage his taxation and other compliance issues. However, given the history of the liquidation of Dima Homes Pty Ltd, it would have been reasonable to expect Mr Dimascio to take a more proactive approach to the financial circumstances of Dima Homes (NSW) Pty Ltd, and, in particular, its compliance with its taxation obligations. It is not clear that Mr Dimascio took any steps to avoid the liquidation, but rather accepted the advice of his accountant that he had no choice. The Tribunal is not satisfied that Mr Dimascio took all reasonable steps to avoid the liquidation or administration of Dima Homes (NSW) Pty Ltd.

44 In specifying that the Director-General (and thus the Tribunal) may reject an application for renewal or restoration of a Contractor Licence if the Director-General “is empowered to reject the application by the regulations”, subsection 40(2) of the HBA confers a discretion: see Burke v Director General, Department of Fair Trading (No 2)[2002] NSWADT 143. This is in contrast with subsection 40(1), which specifies the circumstances in which the Director-General must reject an application for the renewal or restoration of a Contractor Licence. In exercising this discretion, it is relevant to have regard to the objectives of the HBA, which was described by Judicial Member Molony in Tomoski Developments Pty Ltd v Commissioner for Fair Trading [2005] NSWADT 263 at [14] in the following terms:

“The Home Building Act 1989 is essentially a consumer protection act which regulates residential building work in NSW. It provides for the licensing and regulation of those engaging in residential building work, and makes provision as to their competence, fitness and solvency, and for their discipline”.

45 While not diminishing the significance of the substantial debts owed to the Australian Taxation Office in the liquidation of Dima Homes Pty Ltd and Dima Homes (NSW) Pty Ltd, it is relevant that none of Mr Dimascio’s suppliers or customers appear to have been adversely affected. Mr Dimascio told the Tribunal that he is now undertaking a business management course. There is no issue as to Mr Dimascio’s competence, and the Tribunal has found in his favour on the issue of fitness. Mr Dimascio has had a long involvement in the building industry without recent complaint. There appears to be minimal risk to the public from his continued engagement in the building industry, either in terms of his competence or his solvency. Having regard to these factors, the Tribunal concludes that the decision to refuse to restore Mr Dismascio’s Contractor Licence is not the correct and preferable decision. There may be other matters which the applicant is required to satisfy, such as insurance, and the appropriate course is to remit the matter to the respondent for reconsideration.

Order

1. The decision of the Commissioner for Fair Trading to refuse to restore Mr Dismascio’s Contractor Licence is set aside.

2. The matter is remitted for reconsideration with the direction that, subject to his meeting any other relevant criteria, Mr Dimascio should be issued with a Contractor Licence.