Elkazzi v Director General of Services, Technology and Administration (NSW Fair Trading)

[2010] NSWADT 161

CITATION:	Elkazzi v Director General of Services, Technology and Administration (NSW Fair Trading) [2010] NSWADT 161
DIVISION:	General Division
PARTIES:	APPLICANT Tanios Elkazzi RESPONDENT Director-General of Services, Technology and Administration (NSW Fair Trading)
FILE NUMBER:	093237
HEARING DATES:	17 December 2009
SUBMISSIONS CLOSED:	24 December 2009
DATE OF DECISION:	28 June 2010
BEFORE:	Grant Y - Judicial Member
CATCHWORDS:	Review of refusal of licence application
LEGISLATION CITED:	Home Building Act 1989 Home Building Regulations 2004 Civil Procedure Act 2005 Corporations Act 2001 Administrative Decisions Tribunal Act 1997 Fair Trading Tribunal Act 1998 Consumer Trader and Tenancy Tribunal Act 2001
CASES CITED:	Scope Data Systems v BDO Nelson Parkhill [2003] NSWSC 137 Tatlers.com.au Pty Ltd v Davis [2006] NSWSC 1055 Lindfield v Commissioner for Fair Trading (2005) 8 NSWADT McDermott v Black and Anor 63 CLR 161 Parsons v Mather & Platt Ltd [1977] 2 All ER 715 Re: Pollack; Ex parte Deputy Commissioner of Taxation (1991) 102 ALR 133 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 The Commissioner of Taxation v Orica Limited (1998) CLR 544 Re Hughes; Ex parte Westpac Banking Corporation (unreported, FCA, 28 November 1997) Lindfield v Commissioner for Fair Trading [2005] NSWADT 32
REPRESENTATION:	APPLICANT B Carney of counsel instructed by Walid Kalouche of CK Lawyers, Parramatta RESPONDENT K Longin, legal officer
ORDERS:	The Tribunal affirms the decision of the Commissioner’s delegate to refuse the Applicant the licence under clause 25(1)(a)(vi) of the Home Building Regulation 2004

REASONS FOR DECISION

Background

1 This matter comes before the Tribunal by way of an application for the review of a decision of a Delegate of the Respondent refusing to grant an individual contractor’s licence to the Applicant.

2 The Applicant held a contractor’s licence as a Wall and Floor Tiler, trading as Elkazzi Tiling, issued on 4 October 1990 and expiring on 4 October 2006.

3 On 2 May 2007 the Office of Fair Trading wrote to the Applicant informing him of the result of the internal review of the decision to take disciplinary action against the Applicant, being to affirm the original decision. The letter stated that the internal review affirmed the decision of the Delegate that the Applicant was guilty of improper conduct within s.51(2)(c) of the Act for his failure to comply with an order of the Consumer, Trader and Tenancy Tribunal(“CTTT”) directing him to pay the Complainant the sum of $28,651.43 by 4 May 2006, and thereby concluding that the reviewer was satisfied that the ground for taking disciplinary action against the Applicant under s.56(c) of the Act had been established.

4 The internal reviewer set aside the decision of the Delegate to disqualify the Applicant for a period of 9 months from holding a licence or certificate under the Act and instead issued a reprimand to the Applicant in accordance with the provisions of s.62 (b) of the Act for his failure to comply with an order made by the Tribunal on 4 April 2006. This failure was said to constitute improper conduct within s.51 (2)(c) of the Act which is a ground for taking disciplinary action under s.56(c) of the Act.

5 On 18 May 2009 the Office of Fair Trading posted the Applicant a Notice of Determination, advising that he had an unsatisfied Consumer, Trader and Tenancy Tribunal his application for a contractor’s licence had been refused, in accordance with clause 25(1)(a)(vi) of the Home Building Regulations 2004 (“the Regulations”)

6 By way of letter dated 21 July 2009, the Applicant’s solicitor, Mr Walid Kalouche, director CK Lawyers, requested a review of the decision to refuse Mr Elkazzi’s licence application. The basis for the review was that the Sutherland Local Court had made orders in respect of the debt arising from the Consumer, Trader and Tenancy Tribunal orders previously made.

7 On 18 August 2009 Mr Peter Wallace of the Licence Review, Home Building Service, Commission of Fair Trading wrote to the Applicant’s solicitor informing him that the Commissioner’s decision to refuse Mr Elkazzi’s application for contractor licence under the Home Building Act 1989 had been reviewed and resulted in the original decision being affirmed, stating:

“Accordingly, the Commissioner’s Delegate was correct in refusing the Applicant the licence under Clause 25(1)(a)(vi) of the Home Building Regulation 2004.”

History

8 In March/April 2003 the Applicant carried out tiling work at the premises of Mr Bruce Whittaker in Caringbah New South Wales.

9 Mr Whittaker found the Applicant’s work to be defective and made a complaint to the CTTT.

10 Mr Whittaker complained that the Applicant had tiled over the top of existing tiles which resulted in cracking and defective work.

11 Mr Whittaker took proceedings in the CTTT against both the Applicant and Jolly Roger Paving & Stone Pty Ltd, who had supplied the tiles.

12 On 3 September 2004 the CTTT made and order that the Applicant pay Bruce Scott Whittaker (“the Complainant”) a sum of $3,586.00. Those orders were stayed by the CTTT on 28 October 2004, due to a successful application for a re-hearing by Jolly Roger Paving & Stone Pty Ltd (no payment had been made by the Applicant in relation to the order of 3 September 2004).

13 The matters against the Applicant and Jolly Roger Paving & Stone Pty Ltd were both heard on 27 September 2005. The CTTT was provided with expert evidence from all three parties as well as further information concerning the defective work and quotes for its repair. The matter against Jolly Roger Paving & Stone Pty Ltd settled for $6,300 (approximately the cost of the pavers).

14 On 4 April 2006 the CTTT ordered that the Applicant pay Mr. Whittaker $28,651.43, taking into account the quotes to repair the defective work as well as the costs. The CTTT, by its Notice of Award dated 4 April 2006 ordered that the Applicant pay this amount by 4 May 2006.

15 Neither party was represented throughout the CTTT proceedings but the Applicant was at all times assisted by an interpreter and an expert witness, Mr Philpott, who prepared a comprehensive report on his behalf. This report was placed before the CTTT and Mr Philpott accompanied the Applicant to the Tribunal on 4 April 2006.

16 The Applicant failed to pay Mr Whittaker any amount awarded by 4 May 2006 and Mr Whittaker, on 19 May 2006 registered the total debt owed at the Sutherland Local Court. On 30 June 2006 Mr Whittaker filed a Notice of Motion in the Sutherland Local Court seeking a Writ for Levy of Property against the Applicant for the total debt due in the amount of $29,041.41.

17 On 16 November 2006 the Applicant filed a Notice of Motion in the Sutherland Local Court to pay the debt by instalments at the rate of $1,000 per month commencing 15 December 2006. Mr Whittaker objected to the Instalment Order on 26 November 2006 and the matter was heard on 20 December 2006.

18 On 20 December 2006 the parties negotiated and Mr Whittaker agreed to accept the reduced amount of $25,000 in settlement of the matter, on the condition that a lump sum of $6,000 was to be paid before 20 January 2007 and thereafter instalments of $1,000 per month were due, commencing on 20 February 2007. This settlement was stated to be void in the event of default and the original judgment debt was then to be enforced.

19 On 10 December 2008, Mr Whittaker again filed a Notice of Motion seeking a Writ for Levy of Property against the Applicant for the full amount of the judgment debt, attaching an affidavit. As at that date (10 December 2008, only $13,700 had been paid by the Applicant when he ceased making the instalment payments as ordered on 22 December 2007.

20 On 18 June 2009 the Applicant again filed a Notice Motion to pay by instalments. This was objected to by Mr Whittaker on 8 July 2009 for the reason that the Applicant failed to comply with the original instalment order. At the hearing of the objection on 26 August 2009 consent orders were filed by the parties that the Applicant pay to Mr Whittaker $1,000 by 30 August 2009 and $250 per month for September to November 2009 and $300 per month thereafter.

21 In early September the Respondent received a letter of offer from the legal representatives of the Applicant by way of a full and final settlement of the outstanding sum by the payment of $3,000.

22 In an affidavit of Bruce Scott Whittaker (the Complainant) (dated 15 December 2009) he stated that at the time the outstanding sum was approximately $14,000 and that accordingly he declined the offer.

23 The Complainant further stated, in his affidavit of 15 December 2009, that on 8 September 2009 a Notice of Motion was filed on his behalf by his partner, Susan M. Hollembeck in the Sutherland Local Court against the Applicant trading as Elkazzi Tiling, seeking a Writ for Levy of Property for the total debt due. The Complainant asserted the total debt at that time amounted to $12,200 plus interest, that was still owed to him from the CTTT Order of 4 April 2006.

24 The Complainant further stated that on 15 December 2009 he had a telephone conversation with his partner, during which he confirmed the following payments had been received from the Applicant, Mr Elkazzi.

September 2009	$1,000.00
October 2009	$250.00
November 2009	$250.00
December 2009	$300.00

25 The Complainant concluded his affidavit by stating that as at 15 December 2009 to the best of his knowledge, he was owed approximately $12,200 in relation to the CTTT Order dated 4 April 2006 and that this sum did not include interest charges and costs.

Relevant Legislation

26 Section 3 of the Home Building Act 1989 (“the Act”) defines residential work to mean:

“Any work involved in, or involved in co-ordinating or supervising any work involved in:

-the construction of a dwelling;
-the making or alterations or additions to a dwelling; and
-repairing,renovation, decoration or protective treatment of a dwelling.”

27 Section 19(1) of the Act provides that the Commissioner may grant contractor licences for the purposes of this Act.

28 Section 20(2) of the Act provides that the regulations may fix or provide for the Commissioner to determine additional standards or other requirements that must be met before any contractor licence is issued or before a contractor licence of a particular kind is issued.

29 Section 20(3)(a) of the Act specifies that the Commissioner must reject an application for a licence if the Commissioner is not satisfied that any such requirement would be met were the licence to be issued.

30 Section 20(5) of the Act provides that a decision of the Commissioner relating to determining standards or other requirements under s.20(2) cannot be reviewed by the Administrative Decisions Tribunal in an application for review made under this or any other Act.

31 Clause 25(1)(a)(vi) of the Home Building Regulations 2004 (“the Regulations”) specifies that before an authority is issued, the Commissioner must be satisfied that the Applicant is not subject to any order of the Tribunal that has not been satisfied within the period required by the Tribunal.

32 Clause 25(3) of the Regulations states:

“Subclause (1) (a)(v) or (vi) does not prevent the Director-General from issuing an authority if the Director-General is satisfied that the person:


a)has complied with the order of the Court or Tribunal after the period required by the Court or Tribunal; and

b)has a reasonable excuse for the failure to comply with the order within that period.”

Applicant’s case

33 The Applicant submitted that when the CTTT made the order on 4 April 2006, it made it subject to any rights of appeal, or any further orders of any court of competent jurisdiction.

34 The Applicant further submitted that at the time at which he applied for his licence he was not subject to an order of the Tribunal that had not been satisfied because he believed that, there was in place orders by the Sutherland Local Court, to pay an amount which was less than the amount that was ordered by the CTTT in April 2006 and to pay these by instalments. The Applicant cited Scope Data Systems v BDO Nelson Parkhill [2003] NSWSC 137.

1.

35 The Applicant submitted that a stay on the enforcement of the order made by the CTTT, because of the instalments order made by the Sutherland Local Court, “must mean that the enforcement of the order in its entirety, in all of its limbs, must also be stayed. That is:

i)a stay of the execution and the judgment (order debt) in the sum of $28,651.43 and

ii)a stay of the execution of the statutory bar to grant a licence.”

36 The Applicant cited in support the case of Tatlers.com.au Pty Ltd v Davis [2006] NSWSC 1055. The Applicant further submitted that, at the time of the application, the Director-General: “ought to have been satisfied that the CTTT order of 4 April 2006 is not one which is not satisfied. It has, at the very least, been partially paid. That is, the Director-General ought to be satisfied that the order was not simply neglected but is one which has been adhered to.”

37 In summary, the Applicant’s position is:

i)There was a stay of the execution of the order, and hence no enforcement proceedings could be actioned, including the statutory bar to the licence.

ii)The meaning of “being satisfied” that the legislature intended, is not that the amount was paid in full, but rather that the order is being complied with, or that the order is being adhered to.

iii)The Applicant stated that there was nothing in the Applicant’s conduct which would suggest that he is not adhering to the orders of the CTTT as he is by the operation of the legal mechanisms available to him, so adhering in the form of “instalment orders”.

iv)That the order of CTTT of April 2006 did not convey information as to rights of appeal, or information as to applications to the CTTT for payment by instalments and that, together with the fact that the Applicant was self represented and the Applicant’s poor command of English, the CTTT Member was required to have regard to these matters.

v)The Director-General has a discretion as to what he or she may consider to be a sufficient level of satisfaction and the Applicant said it should have been exercised positively in his favour.

38 The Applicant also stated in his further submissions of 23 December 2004 when referring to Lindfield v Commissioner for Fair Trading (2005) 8 NSWADT, that :-

“It is clear that if Member Molloy’s [sic Moloney] reasoning is followed then a stay in the Local Court does not satisfy an order for payment from the CTTT as regards misconduct under s.51(2)(c).”

39 The Applicant further stated that as the issue of the order to pay by instalments was relevant to penalty in the case of Lindfield v Commissioner for Fair Trading (2005) 8 NSWADT, a time limit should be placed on any disqualification of his client as over half of the debt had been repaid, unlike Lindfield.

Respondent’s case

40 The Respondent submitted that the ADT should give the words used in clause 25(1)(a)(vi) and clause 25(3) of the Regulations their ordinary meaning, being that either the order made by the CTTT had been fully paid, or that the order of the CTTT had been complied with at some later time and there was a reasonable excuse as to why that is the case.

41 The Respondent further contended that, contrary to the Applicant’s submissions, a stay does not terminate the cause of action, nor does it operate to satisfy a judgment which has not been satisfied. The Respondent cites the case of McDermott v Black and Anor (1940) 63 CLR 161 and Parsons v Mather & Platt Ltd [1977] 2 All ER 715.

42 The Respondent submitted that the Applicant is seeking to benefit from his own delay and breaches of previous arrangements for the payment of debt in order to argue that he is now not subject to his own default in payment, which is the situation that clause 25 is seeking to protect the public against.

43 The Respondent further submitted that the consent orders filed in the Sutherland Local Court on 26 August 2009 for payment of the judgment debt by instalments made no mention of any stay applying to the matter and, even if the Tribunal were of the view that pursuant to s.107 of the Civil Procedure Act 2005 there was a stay, such stay would be limited to only a stay of execution for enforcement.

44 The Respondent rejected the Applicant’s reliance on the case of Scope Data Systems v BDO Nelson Parkhill [2003] NSWSC 137 as authority for the proposition that a stay of execution will also stay a statute bar for the grant of a licence and that such review was “a great leap from the obiter dicta of that case”.

45 The Respondent relied on the observations of Pincus J in Re: Pollack; Ex parte Deputy Commissioner of Taxation (1991) 102 ALR 133 to support the proposition that a stay of enforcement of a judgment does not produce the consequence that the debt ceases to be payable. The Respondent further rejected the Applicant’s reliance on Tatlers.com.au Pty Limited v Davis [2006] NSWSC 105 per Barrett J on the grounds that s.459G of the Corporations Act 2001 differed from clause 25 of the Regulations which does not contain a provision stipulating “some other reason why the demand should be set aside” nor does the Applicant’s case before the Tribunal in this matter involve a statutory demand.

Issue

46 The issue before the Tribunal is twofold.

i)Has the order made by the CTTT been satisfied?

ii)If the order was complied with at some later time, is there a reasonable excuse as to why the payment was completed at a later point in time such that the Director-General should exercise his discretion pursuant to clause 25(3) to nevertheless issue a licence which does not comply with clause 25(1)(a)(vi) of the Regulations?

Material before the Tribunal

Applicant

47 The Applicant’s Submissions filed on 30 November 2009.

48 Applicant’s additional submissions, filed on 23 December 2009.

Respondent

49 The Respondent filed, pursuant to s.58 of the Administrative Decisions Tribunal Act 1997 documents on 25 September 2009 of which there were 94 pages.

50 Submissions filed on 17 December 2009 entitled “Respondent’s Submissions”.

51 Further Respondent’s submissions filed on 24 December 2009.

52 An affidavit of the Complainant, Bruce Scott Whittaker, filed by the Respondent on 17 December 2009.

Findings

53 The Tribunal’s jurisdiction to hear and determine the application is found in s.83B (3) of the Home Building Act 1989, and s.38 of the Administrative Decisions Tribunal Act 1997.

54 The Tribunal’s duty, when hearing an application to review a decision made on internal review at first instance is as set out in s.63(1) of the Administrative Decisions Tribunal Act 1997which provides:

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


a)any relevant factual material,

b)any applicable written or unwritten law.”

cf: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

The first question for the Tribunal to determine is whether the order made by the CTTT against the Applicant has been satisfied

55 The consequence of the history outlined above is that the Applicant undertook tiling work at the premises of the Complainant in March/April 2003 and as at December 2009, despite a number of efforts via various instalment programs there nevertheless remains outstanding the sum of $12,200 plus interest. Clause 25(1)(a)(vi) of the Regulations states that before an authority (other than an owner-builder permit) is issued, the Director-General must be satisfied that each relevant person in relation to the application for an authority is not subject to an order of the Tribunal that has not been satisfied within the period required by the Tribunal.

56 The Macquarie Dictionary (3rd edition) defines ‘satisfying’ as “to fulfil”, “to discharge fully (a debt, etc)”, “to make reparation to (a person, etc) or for (a wrong) etc”, “to pay (a creditor)”.

57 I do not accept that the Applicant’s submission that his conduct suggests that he is adhering to the orders of the CTTT such that it could be said to constitute satisfaction of an order of the CTTT within the period required by the Tribunal pursuant to the requirements of clause 25(1)(a)(vi) of the Act.

58 It follows that I do not accept the Applicant’s submission that the agreement between the parties to permit the Applicant to pay by instalments terminates the cause of action, or operates to “satisfy” a judgment which has not been satisfied. In the matter of McDermott v Black and Anor 63 CLR 161 at 184, Dixon J considers when a cause of action is satisfied and extinguished and states as follows:

“... Until it [satisfaction] is provided and accepted, the cause of action remains alive and unimpaired. The accord is the agreement or consent to accept the satisfaction. Until the satisfaction is given, the accord remains executory and cannot bar the claim.”

59 His Honour Justice Dixon’s reasoning above was affirmed by Gummow J in The Commissioner of Taxation v Orica Limited (1998) 194 CLR 544, where his Honour said

“Upon provision of the satisfaction, there is a discharge which extinguishes the cause of action.”

60 I note that the Consent Orders filed in the Sutherland Local Court on 26 August 2009 for payment of the judgment debt by instalments made no mention of any stay applying to the matter. I accept the submissions of the Respondent that even if a stay were to be applied from the provisions of s.207 of the Civil Procedure Act 2005, it would be limited to only a stay of execution for enforcement.

61 I also reject the Applicant’s submission that the case of Scope Data Systems v BDO Nelson Parkhill [2003] NSWSC 137 is authority for the proposition that a stay of execution will also stay a statute bar for the grant of a licence and note that the stay in that case related to a stay pending an appeal where it was ultimately found by Barrett J that there was no stay of execution in force.

62 In the matter before the Tribunal there is no appeal pending and indeed the period for appeal has long since past. This is a matter involving enforcement of a judgment debt which has been the subject of a number of “failures to comply” resulting in various instalment programs which have not, for the most part, been met. In the case of Scope Data Systems v BDO Nelson Parkhill [2003] NSWSC 137 Barrett J quotes Pincus J in Re Pollack; Ex parte Deputy Commissioner of Taxation (1991) 102 ALR 133 as follows:

“[The commissioner] said that if there was a stay or enforcement of the judgment, the debt nevertheless remained payable. That appears to me to be correct. I have found no authority in support of the proposition that a stay of enforcement of judgment produces the result that the debt ceases to be payable.”

63 Gummow J is also quoted in the same case as saying:

“... A stay of enforcement did not, of itself and without more, deprive the judgment debt of its character of an obligation that is payable immediately.”

64 Barrett J further quotes Merkel J in Re Hughes; Ex parte Westpac Banking Corporation (unreported, FCA, 28 November 1997) as follows:

“In principle a stay of execution relates solely to a stay in respect of the legal processes of enforcement which are available in respect of the judgment but does not, of itself, suspend or otherwise affect the validity or operation of the judgment.”

65 I accept the Respondent’s submission that to accept the Applicant’s submissions in this regard would result in the Applicant benefiting from his own delay and breaches of previous arrangements for the payment of the debt by enabling him to argue that he is now not subject to his own default in payment. I do not accept that the Director-General ought to have been satisfied that the CTTT order of 4 April 2006 is not one which is not satisfied because at the very least it has been partially paid. Nor do I accept the Applicant’s submission that the Director-General ought to have been satisfied that the order was not simply neglected but is one which is being adhered to.

66 Clause 25 of the Regulations, consistent with the purpose of the Act, seeks to ensure that standards of workmanship expected of a tradesperson are maintained and where those standards have not been met and CTTT orders are in place, that those orders are complied with before a tradesperson is permitted to continue his or her trade.

67 In the matter of Lindfield v Commissioner for Fair Trading [2005] NSWADT 32 (“Lindfield case”) the interpretation of s.51(2)(c) of the Home Building Act 1989, was considered. Section 5192)(c) states:

“The holder of a contractor licence is guilty of improper conduct if the holder does not comply with the order of the Tribunal or with an order of a court in respect of a building claim as referred to in Part 3A.” (emphasis added)

68 This may be compared with clause 25(1)(a)(vi) of the Regulations which states:

“Before an authority (other than an owner-builder permit) is issued, the Director-General must be satisfied that each relevant person in relation to the application for an authority is not subject to any order of the Tribunal that has not been satisfied within the period required by the Tribunal.”

69 Section 51(2)(c) of the Home Building Act 1989 operates differently to either clause 25(1)(a)(vi) or clause 25(3) of the Regulations which states:

“Subclause (1)(a)(v) or (vi) does not prevent the Director-General from issuing an authority if the Director-General is satisfied that the person has complied with the order of the Court or Tribunal after the period required by the Court or Tribunal, and has a reasonable excuse for the failure to comply with the order within that period.” (emphasis added)

70 Section 51(2)(c) operates differently to either clause 25(1)(a)(vi) or 25(3) as it results in the finding of guilt of the licence holder resulting in improper conduct, whereas clause 25(1)(a)(vi) and 25(3) are directives to the Director-General which “must be applied when determining whether to issue an authority”. However, both section 51(2)(c) of the Home Building Act 1989 and Regulations 25(1)(a)(vi) and 25(3) relate to compliance with an order of the Tribunal or satisfaction of an order of the Tribunal.

71 A similar factual scenario existed in the Lindfield case, whereby Mr Lindfield made an application to the Local Court to pay a judgment debt in the amount of $6,223, owed to Mrs Barnett as the result of a decision of the (then) Fair Trading Tribunal, to pay by instalments of $40 per week. The Director-General determined, pursuant to s.51(2)(c) that this amounted to improper conduct as he failed to comply with the order of the Fair Trading Tribunal by not paying within the prescribed period albeit ultimately paying the total amount required to be paid.

72 However, it is notable that in the present case before the Tribunal I am of the opinion that the Applicant has still not satisfied the CTTT order as moneys remain outstanding pursuant to the decision of the CTTT of 4 April 2006 which ordered that the Applicant pay $28,651.53 to the Respondent; whereas in the Lindfield case Mr Lindfield had in fact paid the full amount of the debt to Mrs Barnett a couple of years later.

73 Judicial Member Moloney said, of the payment, that the Tribunal “order remained unsatisfied until paid by Mr Lindfield on 14 February 2003”. Consistent with that view I adopt the submissions of the Respondent, that for the CTTT order to have been satisfied, the debt was required to have been fully paid.

74 Whereas the matter before the Tribunal does not involve a stay pending appeal, it is useful to consider the observations of Judicial Member Moloney when considering the appeal provisions in the then Fair Trading Tribunal Act 1998 which are similar provisions to those which now apply in s.69 of the Consumer Trader and Tenancy Tribunal Act 2001:

“Therefore, lodging of an appeal or application for rehearing does not operate to stay a decision of the Tribunal unless otherwise ordered.”

And that:

“By applying for a stay under [s.69] a licence holder can avoid the peril of deemed improper conduct under s.51(2)(c) because, if the Tribunal order is stayed, compliance with it will not be required.”

75 Judicial Member Moloney continues by stating:

“It is my view that so long as the order remains enforceable, s.51(2)(c) continues to operate to deem a failure to comply with the order to be “improper conduct”. If an instalment is made by the Court, that does not detract from the fact that the failure to fully comply with the order continues to be deemed “improper conduct” by s.51(2)(c).”

76 It is important to distinguish between a stay of the Tribunal’s order, and a stay of execution. If a stay is granted pursuant to s.69 of the Consumer Trader and Tenancy Tribunal Act 2001, this is a stay of the order, where a stay pursuant to s.107 of the Civil Procedure Act 2005 is a stay of execution only. I adopt the view of Judicial Member Moloney that the cause of action and the debt still subsists, even where there is a stay of execution. Judicial Member Moloney expressed this view when he said, at paragraph 59 of his judgment the following:

“It becomes apparent that Mr Lindfield in this case is deemed to have been guilty of improper conduct by virtue of his failure to comply with the order of the Fair Trading Tribunal of 27 July 2001 (when Mr Lindfield first failed to comply with the order) until he finally paid [sic] it in 2003. In the intervening period there was one period, from 20 September 2001 to 9 November 2001, where the Local Court had stayed the Writ of Execution. That stay did not operate to stay the order of the Fair Trading Tribunal , and therefore, by failing to comply during that period, Mr Lindfield continued to be guilty of improper conduct by virtue of s.51(2)(c).” (emphasis added)

77 The Applicant further relied on the case of Tatlers.com.au Pty Limited v Davis [2006] NSWSC 1055 per Barrett J. This case concerns s.459G of the Corporations Act 2001 which section contains a disclaimer to the following effect: “Some other reason why the demand should be set aside”. However there is no similar wording in clause 25 and the matter in Tatlers’ case concerned a statutory demand which is not applicable to the case before the Tribunal at this time.

78 In that case, Barrett J stated that:

“Service under Part 5.4 of the Corporations Act of a statutory demand based on judgment debt is not a means of executing the relevant judgment. The stay therefore does not operate in any direct way to preclude resort to or continuation of the statutory demand process.”

79 Accordingly, as set out above, I am of the opinion that the order made by the CTTT on 4 April 2006 has not been satisfied, nor have the subsequent instalment orders of December or the consent orders of 26 August 2009 been fully satisfied, such that as at 17 December 2009 an amount of approximately $12,200 plus interest remains outstanding.

Secondly, has the Order been complied with at some later time and if so, is there a reasonable excuse as to why the payment was completed at this later point in time such as to warrant the exercise by the Director-General of his discretion pursuant to clause 25(3) to nevertheless issue a licence which does not comply with clause 25(1)(a)(vi)?

80 As at the time of hearing and the completion of submissions on 24 December 2009, the order made by the CTTT in spite of the subsequent instalment agreements entered into between the Applicant and the Complainant, the order still has not been satisfied and accordingly, this second issue is not capable of being addressed.

81 As the order has not been complied with, there is little value in considering whether or not there is a reasonable excuse as to why that is the case, as such a discretionary consideration does not arise until it is possible to say that the order of the CTTT has been complied with.

82 It is not the place of this Tribunal to review the merits or otherwise of the decision of the Fair Trading Tribunal and the circumstances leading up to it, save as to note that an order was made and that the Applicant has not complied with it.

83 I am therefore of the view that the Director-General made the correct and preferable decision in the first instance and accordingly, I affirm the decision of the Commissioner’s delegate to refuse to grant the Applicant a licence.

The Tribunal affirms the decision of the Commissioner’s delegate to refuse to grant the Applicant a licence pursuant to Clause 25 (1)(a)(vi) of the Home Building Regulation 2004.