Khalil v Commissioner for Fair Trading, New South Wales Office of Fair Trading

[2008] NSWADT 104

CITATION:	Khalil v Commissioner for Fair Trading, New South Wales Office of Fair Trading [2008] NSWADT 104
DIVISION:	General Division
PARTIES:	APPLICANT Toufic Khalil RESPONDENT Commissioner for Fair Trading, New South Wales Office of Fair Trading
FILE NUMBER:	073122
HEARING DATES:	20 July 2007 and 20 February 2008
SUBMISSIONS CLOSED:	12 March 2008
DATE OF DECISION:	8 April 2008
BEFORE:	Handley R - Judicial Member
CATCHWORDS:	Home Builder - issue of contractor licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Home Building Act 1989 Home Building Regulation 2004
CASES CITED:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Bogicevic v Commissioner for Fair Trading [2007] NSWADT 49 Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 McBride v Walton (NSW Court of Appeal, unreported, 15 July 1994) Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279
REPRESENTATION:	G Stewart, solicitor S Robosa, solicitor
ORDERS:	The decision of the Respondent is set aside and in substitution therefor the Applicant, Mr Khalil, is to be granted an individual contractor licence in the category of general building work.

REASONS FOR DECISION

1 This matter involves an application by Toufic Khalil for a review of a decision of the Commissioner for Fair Trading (‘the Commissioner’) to refuse Mr Khalil’s application for an individual contractor licence on the ground that Mr Khalil is not a fit and proper person to hold such a licence.

Background/Facts

2 Mr Khalil was born in Australia on 20 July 1978 and is aged 29. He is married with three young children. Since leaving school, he has always worked in the building industry. He was granted a qualified supervisor’s certificate for carpentry and joinery in 1999, and a contractor’s licence for carpentry and joinery in 2000.

3 In 1999, Mr Khalil established TAK Constructions Pty Ltd (‘TAK Constructions’), of which he was appointed a director on 24 February 1999. He has been the sole director and shareholder of TAK Constructions since 17 August 2006. TAK Group Pty Ltd (‘TAK Group’) was incorporated on 11 March 2003. Mr Khalil served as a director from 13 April 2003 until 31 January 2006. On 8 February 2007, the Court ordered the winding up of TAK Group and the appointment of a liquidator. According to Mr Khalil, TAK Group has now been de-registered.

4 On 11 May 2004, the Office of Fair Trading (‘OFT’) received Mr Khalil’s application for a variation of his qualified supervisor’s certificate from the category of carpenter and joiner to that of builder. By letter dated 8 September 2004, the OFT requested further information from Mr Khalil. On 30 September 2004, the OFT wrote to Mr Khalil noting that it had received no response to this request. On 1 October 2004, Mr Khalil faxed further information to the OFT.

5 By letter dated 7 March 2005, Mr Khalil’s solicitors wrote to the OFT noting that Mr Khalil had received no response to his application despite repeated requests to clarify the situation with OFT staff. By letter dated 6 April 2004 (in error - it should have been dated 6 April 2005), a delegate of the Commissioner, Michelle Morgan, issued Mr Khalil with a provisional contractor licence, effective from 6 April 2005, provided certain conditions were fulfilled. By letter dated 11 April 2005, Mr Khalil’s solicitors accepted the provisional licence and conditions imposed, and provided information and assurances in response to the conditions.

6 On 29 August 2005, Ms Morgan wrote to Mr Khalil’s solicitors stating that his application for a variation of his licence had been refused because Mr Khalil had not been able to provide evidence of acceptable practical experience. By letter dated 5 September 2005, Mr Khalil sought an internal review of this decision. On 22 November 2005, following an internal review, another delegate of the Commissioner confirmed the decision, stating as reasons for his decision that Mr Khalil had not provided evidence of acceptable practical experience and was not a fit and proper person to be the holder of a qualified supervisor certificate in the category of builder.

7 On 4 October 2006, Mr Khalil lodged a new application for an individual contractor licence, building consultancy licence and qualified supervisor’s certificate. On 18 January 2007, a delegate of the Commissioner decided to refuse Mr Khalil’s application on the ground that he is not a fit and proper person to hold a contractor licence. By letter dated 13 February 2007, Mr Khalil sought an internal review of this decision. On 20 March 2007, following an internal review, another delegate of the Commissioner confirmed the decision of 18 January 2007. On 26 April 2007, Mr Khalil lodged an application for a review of this decision by the Tribunal.

8 At the hearing, Ms Robosa, for the Commissioner, informed the Tribunal that the Commissioner was no longer pressing the issue of whether Mr Khalil has the requisite experience for the issue of a contractor licence. Mr Khalil has supplied additional references and the Commissioner is now satisfied that Mr Khalil has the requisite experience. The only outstanding issue, therefore, is whether Mr Khalil is a fit and proper person to hold an individual contractor licence.

The Relevant Law

9 Clause 26 of the Home Building Regulation 2004 (‘the Regulation’) provides relevantly:

“(1) Before a contractor licence is issued, the Director-General must be satisfied that:
(a) the applicant has, or proposes to have, such numbers of nominated supervisors for the contractor licence as the Director-General considers are needed to ensure that all work for which the contractor licence is required will be done or supervised by qualified individuals, ...
(4) An individual may be a nominated supervisor for a contractor licence only if the individual:
(a) holds an endorsed contractor licence or a supervisor certificate that authorises its holder to supervise some or all of the work done under contracts for which the contractor licence applied for or held is required, and

(b) is, or is proposed by the applicant or holder to be, an employee of, or a member of the partnership or director of the corporation that is, the applicant or holder, and

(c) made a consent declaration that is lodged with the Director-General and has not been revoked.

(5) In sub-clause (4)(b), ‘employee’ means an employee who is required, by the terms of employment, to work for his or her employer otherwise than on a casual or temporary basis.”
10 Section 22(1)(a) of the Home Building Act 1989 (‘the HBA) requires the Commissioner to cancel a contractor licence if there has not been a nominated supervisor for the contractor licence for a period of at least 30 days.

11 Section 20(1) of the HBA provides, relevantly, that the Commissioner must reject an application for a contractor licence if “not satisfied that the applicant is a fit and proper person to hold a contractor licence”. Section 20(1A) provides that in so determining, the Commissioner “is to consider whether the applicant is of good repute, having regard to character, honesty and integrity”.

Mr Khalil’s Evidence

12 Mr Khalil provided an affidavit dated 2 September 2007. He said that since leaving school, he has always worked in the building industry. He has had a qualified supervisor’s certificate for carpentry and joinery since 1999, and a contractor’s licence for carpentry and joinery since 2000. Before establishing TAK Constructions, Mr Khalil had no experience of running a company. He acknowledged that during the early years of the business, he did not understand his obligations as the director of a company or under the Home Building legislation. In 2004, he was not aware that TAK Constructions, which had been issued with contractor licence No 118943C, was required to employ a qualified supervisor on a full-time basis. TAK Constructions had two qualified supervisors working for it as subcontractors and Mr Khalil believed this was sufficient.

13 After the issue was raised with him by the Office of Fair Trading (‘the OFT’) by letter dated 3 December 2004, when he was notified that TAK Constructions’ contractor licence had been cancelled, Mr Khalil had a series of meetings with Michelle Morgan, the Acting Manager of the Licensing Branch of the Home Building Service, between December 2004 and April 2005. During these meetings, Mr Khalil acknowledged that there had been breaches of the Regulation, and asked Ms Morgan what needed to be done “to fix things up and obtain a new licence”. At a meeting on 6 April 2005, Ms Morgan told Mr Khalil that if TAK Constructions employed a qualified supervisor, she would issue TAK Constructions with a provisional licence.

14 In cross-examination, Mr Khalil agreed that another officer from the OFT was present at the meeting – Daniel Richardson – who took notes and subsequently prepared an affidavit dated 19 June 2007. The question of whether Mr Khalil was a fit and proper person was raised at the meeting; Ms Morgan indicated what Mr Khalil needed to do to satisfy her of this. Mr Khalil’s solicitors provided further character references for Mr Khalil in a letter to Ms Morgan dated 11 April 2005.

15 Mr Khalil said he that following the meeting on 6 April 2005, he employed Adam Elbaf, one of two qualified supervisors who had previously worked for TAK Constructions on a sub-contract basis. On 6 April 2005, Ms Morgan issued TAK Constructions with Provisional Contractor Licence Number 171387C. Once the licence had been issued, TAK Constructions continued doing building work. At this time, TAK Constructions experienced cash flow problems and Mr Khalil said he decided not to renew TAK Constructions’ contractor licence because TAK Constructions could not afford to employ a qualified supervisor on a full-time basis. Instead, he decided to apply for a contractor licence for building work in his own name, believing he would be considered a fit and proper person to hold such a licence. As an example of the cashflow problems experienced by TAK Constructions, Mr Khalil said that on 12 April 2006, TAK Constructions received judgment for the payment of $159,000 by the company New Image Home Improvements Pty Ltd. Notwithstanding this, TAK Constructions has never received this payment.

16 With regard to whether he is a fit and proper person to hold a contractor licence, Mr Khalil said until Scott Hand left TAK Constructions’ employment in 2002, Mr Hand had worked for TAK Constructions as a supervisor on a sub-contract basis, mainly doing carpentry work. Mr Khalil nominated Mr Hand as a supervisor with TAK Constructions not realising he had to be employed as a full-time employee.

17 Mr Khalil said he discussed most of the breaches now relied on by the Commissioner in these proceedings with Ms Morgan in their meetings in late 2004/early 2005.

18 Mr Khalil was asked about a reference [a Statement of Practical Experience] he had obtained from Mr Hand dated 27 September 2004 and which Mr Khalil submitted in support of his application for a qualified supervisor certificate for building lodged on 6 May 2004. Mr Khalil acknowledged that Mr Hand was not working for TAK Constructions at the time in September 2004 and could not therefore certify that Mr Khalil carried out his work in a satisfactory manner during the period August 2002 to September 2004, as stated. Mr Khalil said he had seen Mr Hand “on the road” and asked him for a personal reference to support his application. Mr Khalil said he now realises that since TAK Constructions did not employ Mr Hand at the time, he should not have provided a reference from Mr Hand in support of his application.

19 Mr Khalil said after his May 2004 application was refused by the OFT, a decision confirmed on an internal review on 22 November 2005, his solicitors advised him to complete another year’s practical experience and then re-apply. This is what he did. Mr Khalil said when it came to making a new application in October 2006, he was so frustrated by the process and his dealings with the OFT, that he got his solicitor to complete the application for him.

20 With regard to a reference from Zakaria Doughan submitted in support of Mr Khalil’s application for an individual contractor licence lodged on 9 October 2006 [a reference that contained inconsistencies and incorrect dates], Mr Khalil said he did not write the reference and is not responsible for its content. The reference was not submitted to establish Mr Khalil’s practical experience and the dates were solely to establish how long Mr Doughan had known Mr Khalil.

21 With regard to information and documents supplied by Mr Khalil in relation to an application by a former employee of TAK Constructions, Mahmoud Dakarmanji, for a contractor licence, Mr Khalil agreed that he signed Mr Dakarmanji’s Log Book dated 12/12/03, 15/1/04, 1/5/04 [and in doing so indicated that he was a licensed building contractor – which was not the case] and, in the Statement of Practical Experience dated 5/5/04, wrongly cited TAK Constructions’ contractor licence suggesting it was his own. Mr Khalil said Mr Dakarmanji completed the documents and asked him to sign them. Mr Khalil probably signed all of them on the same day – probably 5 May 2004. He did not read the documents before signing them – he used to rely on his contract administrator to complete such documentation - and was not aware that Mr Dakarmanji would use them in support of his application for a contractor licence. Mr Khalil said he has learned from this experience to read what he signs. Previously, he relied too much on others.

22 With regard to other breaches of the HBA and Regulation by TAK Constructions raised by the Commissioner, Mr Khalil said many of these relate to Mr Hand - to Mr Khalil’s failure to nominate him as a supervisor for TAK Constructions, failure to inform the OFT that Mr Hand worked for TAK Constructions as a subcontractor and not as an employee, failure to notify the OFT when Mr Hand stopped working for TAK Constructions and failure to notify the OFT of the name and details of another nominated supervisor, as well as to TAK Constructions’ having carried out residential building work on four properties without a nominated supervisor. Mr Khalil said he had discussed these matters with Ms Morgan and had acknowledged his mistakes during the course of their meetings, and he immediately appointed Mr Elbaf as a full-time employee and nominated supervisor for TAK Constructions as soon as he was aware of the need to do so. He provided a copy of Mr Elbaf’s contract of employment to Ms Morgan.

23 In relation to the four properties referred to where TAK Constructions was undertaking residential building work, Mr Khalil said TAK Constructions was working on these properties at the time its licence was cancelled on 3 December 2004. At the time, TAK Constructions had two qualified supervisors working on those jobs, Mr Elbaf and Craig Redfern, albeit as subcontractors.

24 With regard to the OFT’s allegation that TAK Constructions carried out building work at Mitchell Street, Strathfield without home warranty insurance, Mr Khalil said TAK Constructions was a subcontractor for New Image Home Improvements Pty Ltd on this project. Mr Khalil said he contacted the Housing Industry Association to ascertain whether TAK Constructions needed home warranty insurance for its work on the property. He was informed that if the head contractor had such insurance, then the subcontractor did not need it. Mr Khalil subsequently went to the property and obtained a copy of the certificate of home warranty insurance [issued by Royal Sun Alliance Insurance Australia and dated 22 May 2003] which had been provided to the owners, and which Mr Khalil in turn provided to the OFT. He said he did not know that New Image Home Improvements Pty Ltd’s licence had been cancelled at that time in 2003.

25 Mr Khalil acknowledged that he had acted as the ‘building supervisor’ of TAK Constructions, without having the appropriate licence, from the time Mr Hand stopped working for TAK Constructions in August 2002, until 2004, during which time it undertook building work on the four properties referred to above. Again, Mr Khalil said he discussed this with Ms Morgan. He acknowledges that the breaches of the law were serious and he accepts responsibility.

26 Other allegations made by the Commissioner concern TAK Group: that it falsely stated on its card and letterhead that it was involved in construction and development when TAK Group was not the holder of a licence under the HBA; and that it carried out residential building work without the appropriate licence. Mr Khalil acknowledged that TAK Group had breached the HBA and Regulation and that he was responsible. He said that TAK Group was essentially just a letterhead - the holding company for his group of associated companies, a corporate structure set up by his accountant. Mr Khalil now realises that organising his business in this way was a mistake. He was not aware of the legal complexities and the different constitutions of the various companies. TAK Group has now been de-registered.

27 Mr Khalil said he has undertaken voluntary work in the community for a number of years. His references attest to this. He has also engaged unemployed men as apprentices in order to help them out, knowing what it is like to have a rough start in life, as he did.

28 Mr Khalil said his initial enthusiasm for his business was too great and he made a lot of honest mistakes because he did not know better. However, he acknowledges this is no excuse. Now he knows better. He has grown up and matured and learned about the requirements of the Home Building legislation and how the industry works. He is content to meet any restrictions or conditions that the OFT may impose. If he is granted a licence, he will run the business day-to-day with the help of his accountant and others as needed. He is not currently working in the residential building industry.

Mr Burns’ Evidence

29 Mr Burns provided statements dated 4 July 2007, 18 July 2007 and 28 August 2007. He is a building and design consultant. He said he first held a builder’s licence in 1976. After a few years, he moved into planning and development and did not hold a licence, although he had a restricted licence from 1998 to 2003 while he was managing a timber flooring business. He does not currently hold a licence. Mr Burns said, at first, he did some consultancy work for TAK Constructions and then worked full-time for TAK Constructions for about 12 months before and two years after the cancellation of its licence in December 2004. In April 2005, he was involved in TAK Constructions’ design work and marketing.

30 Mr Burns said he attended the meetings with Ms Morgan between December 2004 and April 2005. Before the discussions with Ms Morgan, there were two qualified supervisors working for TAK Constructions as subcontractors, Mr Elbaf and Mr Redfern. He noted that Mr Redfern, of whom Mr Burns thinks highly and who now works for the Salvation Army, was impressed by Mr Khalil’s work. During the period when TAK Constructions held a provisional contractor’s licence, Mr Burns cannot recall there having been any problems with the OFT. Most of the problems discussed with Ms Morgan were of a technical nature, concerned with notification. At all times, there were qualified supervisors on hand.

31 Mr Burns acknowledged that problems were identified with TAK Constructions’ operations. Since that time, Mr Khalil has taken much more of an interest in the administration of his business. He has learned from his mistakes. Previously, he relied too much on others and suffered from the inexperience and enthusiasm of a younger person. Mr Khalil is now more aware of his situation and is much less “gung ho” than he was, especially having lost heavily on one project in which TAK Constructions was involved. Mr Burns described the reference Mr Khalil obtained from Mr Hand for the purpose of making his 2004 application for an individual contractor licence as “a joke”. Mr Khalil was not aware of the gravity of what he was doing and Mr Burns was not surprised when that application was refused.

The Applicant’s Submissions

32 Mr Stewart, for Mr Khalil, submitted that the Tribunal must give consideration to all aspects of his character at the time of making the decision and not just to isolated events which caused concern: Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279. A person who makes an honest and reasonable mistake is not thereby disqualified from ever holding a licence. A person is capable of redeeming him/herself by applying his/her mind to the issues raised and addressing the behavioural concerns.

33 Mr Stewart said Mr Khalil took the relevant steps to ascertain his obligations and responsibilities under a licence by approaching the OFT to establish what he needed to do to address its concerns, and then taking the necessary action. He has demonstrated an intention to operate properly under the Home Building legislation. A core problem was that Mr Hand, a qualified supervisor, was not working full-time as an employee. Mr Khalil acknowledged his error in not employing a full-time building supervisor and immediately appointed Mr Elbaf to meet this requirement. Mr Khalil now has a very clear insight into the breaches for which he was responsible.

34 Mr Stewart noted that Mr Khalil’s evidence establishes that there was valid Home Owner Warranty Insurance for the property at Mitchell Street, Strathfield where TAK Constructions worked as a subcontractor. New Image Home Improvements Pty Ltd applied for homeowner warranty insurance, and a certificate was issued on 22 May 2003. The cancellation of New Image’s licence cannot be treated as adverse to Mr Khalil.

35 With regard to Mr Dakarmanji’s application for a contractor licence, Mr Stewart submitted that while Mr Khalil may have been mistaken in signing the relevant documents, he had an honest and reasonable belief in what he was doing, and cannot be held to have been acting dishonestly. He is entitled to a presumption of innocence unless the contrary is established, which has not occurred in this instance.

36 Mr Stewart noted that a clear inference can be drawn from the OFT granting TAK Constructions a provisional contractor licence that Mr Khalil, as the director of the company, and the company itself had no ongoing problems or breaches. Mr Stewart noted that the OFT had not provided evidence from Ms Morgan. The evidence establishes that Mr Khalil learned from his mistakes and inexperience and managed and maintained the company in a fit and proper manner.

37 Mr Stewart submitted that the evidence of Mr Khalil and Mr Burns shows that while Mr Khalil made some errors, Mr Khalil has gone to great lengths to remedy those shortcomings. He is now “a vastly more mature person than he was previously and the Public could be satisfied that he is now a fit and proper person to hold a licence”.

The Respondent’s Submissions

38 Ms Robosa, for the Commissioner, noted that the determination of an application for an individual contractor licence is entirely independent of the decision to issue a provisional company licence. The Tribunal is required to consider whether Mr Khalil is a fit and proper person to hold a contractor licence, and must have regard to all the material at the time of making the application.

39 Ms Robosa said the decision that Mr Khalil is not a fit and proper person to hold a licence is based on four matters: first, his provision of a false and misleading Statement of Practical Experience from Scott Hand, verifying work experience for two years in support of Mr Khalil’s application received on 11 May 2004; second, Mr Khalil’s provision of a false and misleading Statement of Practical Experience from Zakaria Doughan in support of Mr Khalil’s application received on 11 May 2004 [in fact this was in support of his application lodged on 4 October 2006]; third, Mr Khalil’s provision of a false and misleading Statement of Practical Experience and log books in support of Mahmoud Dakarmanji’s application for a contractor licence; and, fourth, Mr Khalil’s responsibility for the breaches and misconduct of TAK Constructions and TAK Group.

40 Ms Robosa noted that while Mr Khalil admitted a substantial number of breaches at the hearing on 20 February 2008, he denied that TAK Constructions was responsible for taking out home warranty insurance for the building works at Mitchell Street, Strathfield. Yet the Certificate of Insurance was issued on 22 May 2003, seven days after the licence of New Image Home Improvements Pty Ltd was cancelled. As TAK Constructions carried out building works from June to November 2003, it should have obtained home warranty insurance to protect the interests of the homeowners.

41 With regard to Mr Khalil’s evidence that he signed Mr Dakarmanji’s log books verifying his work experience in the “honest and reasonable belief that the Company has an appropriate licence”, Ms Robosa pointed to the warning that appears on page 4 of the Booklet that only specified categories of individual could verify a person’s experience. Mr Khalil did not have the required contractor licence during the period that he verified. Even if the Tribunal accepts that Mr Khalil’s conduct was not dishonest but was a “mistake”, such conduct is not consistent with the standard of behaviour expected of a person deemed to be a fit and proper person to hold a contractor licence.

42 Ms Robosa said Mr Khalil’s and Mr Burns’ evidence at the hearing show Mr Khalil’s lack of insight into the seriousness of and his responsibility for the breaches. Aside from Mr Burns’ evidence, Mr Khalil has provided no other character evidence to establish that he has acknowledged his wrongdoings, changed his behaviour and is now a reformed person: Bogicevic v Commissioner for Fair Trading [2007] NSWADT 49, at par 71 – paragraph 72. The Commissioner submits, by way of conclusion, that, taking into account the above circumstances:

“not enough time has passed for the Applicant now to be granted a licence. The Applicant has not reached that stage where the public can be guaranteed that he is a fit and proper person to operate in the home building industry.”
Discussion

43 The question to be determined is whether Mr Khalil is “a fit and proper person to hold a contractor licence”. If Mr Khalil does not meet this requirement, then, in accordance with section 20(1) of the HBA, his application must be rejected. In determining whether an applicant is a fit and proper person, section 20(1A) requires consideration of “whether the applicant is of good repute, having regard to character, honesty and integrity”.

44 The meaning of the phrase ‘fit and proper person’ was discussed by the High Court in Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 (‘Hughes & Vale’), at paragraph 9, where Dixon CJ, McTiernan and Webb JJ said:

“The expression ‘fit and proper person’ is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. ‘Fit’ (or ‘idoneus’) with respect to an office is said to involve three things, honesty knowledge and ability: ‘honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it’ - Coke.”
45 The meaning of the phrase was also discussed in Australian Broadcasting Commission v Bond (1990) 170 CLR 231, where Toohey and Gaudron JJ said at paragraph 36 of their judgment:
“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.”
46 As their Honours recognised, at paragraph 66, whether a person is a fit and proper person involves a value judgement to be made in the context of the particular activity to be licensed. In McBride v Walton (NSW Court of Appeal, unreported, 15 July 1994: see, in particular, the judgments of Kirby P, at paragraph 21 to paragraph 26, and Powell JA, at paragraph 59 to paragraph 73), the Court said that where there is evidence of misconduct, there should be consideration of any explanation for that misconduct, its seriousness to the particular activity, the motivation of the person, whether the misconduct is an isolated incident, the person’s underlying qualities of character, and the person’s conduct since the incident and whether this demonstrates recognition of the misconduct and subsequent reform.

47 The Commissioner relies on four matters to support its contention that Mr Khalil is not a fit and proper person to hold a contractor licence. The first matter is his provision of a false and misleading Statement of Practical Experience from Scott Hand, verifying work experience for two years in support of Mr Khalil’s 2004 application for variation of his qualified supervisor’s certificate to that of builder. In giving evidence, Mr Khalil acknowledged that Mr Hand was not working for TAK Constructions during the period “August 2002 to current” (27 September 2004), specified in the Statement of Practical Experience completed by Mr Hand, and he should not have provided a Statement from Mr Hand in support of his application.

48 The second matter is Mr Khalil’s provision of a false and misleading Statement of Practical Experience from Zakaria Doughan in support of Mr Khalil’s application lodged on 4 October 2006. Ms Robosa pointed to incorrect dates and inconsistencies in this Statement. Mr Khalil’s response when questioned about this was that he did not write the statement and is not responsible for the inconsistencies.

49 The third matter is Mr Khalil’s provision of what the OFT alleges is a false and misleading Statement of Practical Experience and log books in support of Mahmoud Dakarmanji’s application for a contractor licence. Mr Khalil also used TAK Constructions’ licence number on the form, which he signed as a director of TAK Group in May 2004. Mr Khalil said Mr Dakarmanji completed the documents and Mr Khalil signed them without reading them. He would normally have relied on his office staff to complete any such documentation. He did not know Mr Dakarmanji would use the documents in support of an application for a licence. Mr Khalil said he has learned to read what he signs and not to rely too much on others.

50 The fourth matter is Mr Khalil’s responsibility for the breaches and misconduct of TAK Constructions and TAK Group. The breaches referred to mainly relate to the failure of TAK Constructions to employ a qualified supervisor in the period leading up to discussions with Ms Morgan culminating in the meeting on 6 April 2005. TAK Constructions had previously employed qualified supervisors on a subcontract basis and not as full-time employees, as was required. Mr Khalil admitted the consequent breaches and said that as soon as he was made aware of this, he employed a full-time qualified supervisor, Mr Elbaf, whom he had previously employed as a subcontractor.

51 Mr Khalil also acknowledged responsibility for breaches of the HBA by TAK Group, which falsely stated on its business card that it was involved in construction and development and which purported to carry out residential building work without the appropriate licence. He said that TAK Group was essentially just a letterhead. It was the holding company for his group of companies, set up on the advice of his accountant. He was not aware of the different constitutions of the various companies and the legal complexities. Mr Khalil said he now realises that organising his business in this way was a mistake.

52 With regard to the Commissioner’s claim that TAK Constructions carried out building work (as a subcontractor) on a house at Mitchell Street, Strathfield without valid home warranty insurance, Mr Khalil said he had checked with the Housing Industry Association to ascertain whether TAK Constructions needed home warranty insurance, and was informed that if the head contractor had such insurance, the subcontractor did not need it. He did not know that New Image Home Improvements Pty Ltd’s licence had been cancelled at that time.

53 I note that most of the matters on which the Commissioner relies took place in the period leading up to the meeting with Ms Morgan on 6 April 2005. There is only one later matter – that relating to Mr Doughan’s Statement of Mr Khalil’s practical experience. Whilst I accept that there are errors in this Statement, this is not a matter that, in itself, I regard as being of major significance. The earlier matters, with the exception of the home warranty matter, for which, in my view, Mr Khalil’s explanation is a reasonable one, seem to be borne out of Mr Khalil’s immaturity, inexperience, lack of knowledge of the detail of the Home Building legislation and of corporate structures, and, in particular, lack of attention to detail. Mr Khalil has acknowledged his mistakes and the breaches of the legislation, since at least his final meeting with Ms Morgan on 6 April 2005, and has sought to address the problems identified by her. I am satisfied from his evidence that he has learned from his mistakes.

54 I also note that Mr Khalil did not challenge the OFT’s contention that he did not have the requisite experience for the grant of a qualified supervisor’s certificate, as he might have done, but instead obtained the necessary additional experience before reapplying.

55 I have had had regard to the references submitted by Mr Khalil. I note Mr Burns’ evidence as to Mr Khalil’s “honest and forthright nature”. Attached to Mr Burns’ statement dated 4 July 2007 are three character references. The first, from Khodr Saleh, Justice of the Peace and Counsellor of Canterbury City Council, dated 27 June 2007, states, “Mr Khalil is known as a well regarded, committed family man, who is hardworking, trustworthy and a responsible person”. A second reference, dated 13 June 2007, from Rouad Elayoubi, refers to Mr Khalil’s volunteer work in the construction of a community youth centre in South-Western Sydney. A third reference, dated 6 January 2005, is from Khaled Kheir, lawyer and Vice President of the Lebanese Moslem Association, who attests to Mr Khalil’s leadership in community work, and states Mr Khalil is a trustworthy and responsible person. Mr Kheir states he is aware that Mr Khalil’s application for builder’s licence has been rejected on the ground that he is not a fit person to hold such a licence. At the hearing, a further reference dated 25 June 2007, was provided from Jihad Dib, Acting Principal of Punchbowl Boys’ High School, who refers to Mr Khalil’s community work and says “I have no hesitation in vouching for Mr Khalil’s personal attributes”.

56 A further six references (all dated August 2007 except one reference which is undated) are attached to Mr Khalil’s statement of 2 September 2007 - from a pharmacist, two accountants, the President of the Lakemba Sports & Recreation Club Inc, an architectural draftsman, and a registered tax agent - attesting to Mr Khalil’s honesty, integrity and good character, and his involvement, especially his leadership, in the local community. In terms of section 20(1A) of the HBA, Mr Khalil’s references point to his being of good repute having regard to his character, honesty and integrity. This was also the impression I formed having heard him give evidence.

57 Turning to the discussion of ‘fit and proper person’ in Hughes & Vale, I am satisfied from the evidence presented on Mr Khalil’s behalf at the hearing, referred to above, that he is honest. He also seems to have the requisite ability – his references point to his workmanship being of good quality, although I note there was a dispute about construction work carried out by TAK Constructions on a house at Turella. This appears to have been resolved by the Consumer, Trader and Tenancy Tribunal in favour of TAK Constructions, with the Tribunal ordering New Image Design & Constructions Pty Ltd to pay TAK Constructions $154,926.66 (decision of 29 March 2006). I also note the Commissioner has now accepted that Mr Khalil has the requisite experience for the issue of a contractor licence.

58 Mr Khalil’s main shortcoming in the past seems to have been his lack of knowledge, which led to a series of breaches of the Home Building legislation. Mr Khalil has acknowledged responsibility for these and I am satisfied from his evidence that he has taken steps to remedy this lack of knowledge. Most of the breaches of the legislation took place four or more years ago. It is now two years and eight months since Mr Kahlil’s first application for variation of his licence was refused in August 2005. In my view, the community can now be confident that that a chastened and more mature Mr Khalil will comply with the Home Building legislation, and that his experience of the past few years will make him extra vigilant in this regard.

59 In conclusion, I am satisfied that Mr Khalil is now a fit and proper person to hold an individual contractor licence.

Order

The decision of the Respondent is set aside and in substitution therefor the Applicant, Mr Khalil, is to be granted an individual contractor licence in the category of general building work.