Taouk v Director General, NSW Fair Trading [2016] NSWCATOD 41 

Significance

Matthew Yee has concluded from his analysis of this case that the NSW Civil and Administrative Tribunal applied a broad definition of a 'fit and proper' person in relation to a refusal to grant a contractors licence under the Home Building Act 1989 (NSW) (Act) including consideration of the applicant's lack of regard for the regulatory system.

Facts

Mr Fahd Taouk (applicant) applied to the NSW Civil and Administrative Tribunal (Tribunal) for a review of a determination by the Commissioner for Fair Trading (Commissioner) to refuse his application for a contractors licence under the Act. The application was refused on the grounds that (1) the applicant did not meet relevant industry experience requirements for general building works, and (2) the applicant was not a 'fit and proper' person under the Act.

In relation to the latter, the Commissioner alleged that the applicant had failed to declare that he was a director of a company that had been wound up and there were discrepancies and irregularities in the information provided in support of the application.

Decision

The Tribunal affirmed the Commissioner's refusal to grant the licence.

The Tribunal was satisfied that the applicant has met the requirements of relevant experience.

The Tribunal held that a 'fit and proper' person broadly refers to concepts of honesty, integrity, knowledge and ability in dealings with the regulator, and emphasised the importance of public confidence in builders licensed under the Act.

In relation to honesty, the Tribunal held that, whilst there was insufficient evidence to show an intent to deceive the Commissioner, the applicant was at least 'careless' in failing to declare his directorship of a company that had been wound up and in regard to the accuracy of the information that he provided to the Commissioner. This demonstrated a 'cavalier attitude' towards the regulatory regime.

The Tribunal was not satisfied that the applicant had demonstrated the requisite knowledge of the regulatory requirements and the licensing process to ensure that he can comply with the regulatory regime and, as the applicant had not accepted responsibility for his carelessness, was not confident that he would not repeat this approach in the future.