Posted by Kelvin Keane | 16 March 2021 | Construction & Infrastructure
The Nexus Law Group was recently involved in one of these cases in an appeal against a NSW Fair Trading decision not to grant Mr Edrees his builders license in NSW .
Mr Edrees completed an engineering degree overseas and was involved for several years in the project management of multi-million-dollar residential buildings in the Middle East. Mr Edrees then migrated to Australia and was registered as an engineer in Australia and undertook two years as a contract administrator on a $90 million residential unit project in Miranda, Sydney.
Despite what would appear to be substantial experience in the management and supervision of residential building work, Fair Trading denied Mr Edrees’ application for a general building license in NSW on the basis that most of his experience was overseas and he did not have adequate references from licensed NSW builders.
Fair Trading is the NSW authority regulating the issuing of builder’s licenses in NSW. Based on current policy, an applicant’s experience must be verified by a NSW licensed builder and therefore overseas experience, or experience not verified by a licensed builder, is not acceptable. An applicant must provide at least 24 months acceptable experience.
In Mr Edrees case, he provided references from contractors and other employees on the Australian project, however, the construction manager supervising his work would not provide a reference. Mr Edrees also provided a number of references from his supervisors on the overseas projects.
Senior Member Isenberg overturned Fair Trading’s decision and found that, despite the fact that there was no reference from a licensed NSW builder, it was evident that Mr Edrees had the required skills and ability to supervise residential building work in NSW and granted him his license.
The Senior Member in Edrees relied on the finding in Ngo v Commissioner for Fair Trading  (Ngo) to support his finding.
In Ngo, the applicant was also relying predominantly on overseas experience and was a registered engineer with substantial project management experience. In that matter, Senior Member Dr Lucy, overturned the Fair Trading decision and granted the applicant their license.
These two cases provide significant support for the fact that:
The important points to take out of these cases is that in similar circumstances, there should be reasonable amount of collaborative evidence provided by the applicant when making their application.
This evidence should:
The evidence should essentially show that the applicant has a wide range of experience in the type of work that would be undertaken in residential building work in NSW.
Referees should also verify that they had a supervisory role supervising the applicant on those projects.
These two recent decisions should make it easier for those in similar positions to obtain their licenses in NSW.
While it may seem evident to those within the industry that a person in certain specific roles in the construction industry would have the requisite experience to undertake residential building work in NSW, it is important for the applicant to realise they are dealing with a government department whose representatives assessing the application might not be aware of the scope of these roles or how they relate to various types of work undertaken on site.
The two cases outlined above show that when an application is adequately supported with the appropriate evidence then it is possible to overcome the standard Fair Trading response.
If you require assistance in relation to issues with the NSW Fair Trading, contact us on email@example.com
To receive the latest Nexus Construction & Infrastructure news and insights, click here to subscribe.
Nexus has changed the way legal services are delivered: Better, Faster, Simpler
Nexus is a law firm of depth and innovation with a national footprint, led by a peer group of like-minded senior professionals. We deliver solution-focused legal services without the pretense. Our clients enjoy direct access to senior lawyers, who are trusted advisors and use our advanced group systems. This allows us to deliver time and cost efficiencies to clients. At Nexus, we deliver the right advice our clients need at the right time to make a real difference in their business.
This publication is © Nexus Law Group and is for general guidance only.
Legal advice should be sought before taking action in relation to any specific issues.
On 17 July 2021, the NSW Government issued a public health order directing that work not be carried out on construction sites in Greater Sydney. "Following construction sites being shut down over 17 – 18 July 2021, builders and subcontractors should review their contracts closely and attend to issuing contract notices for extensions of time and suspension of work as applicable," said Nexus National Practice Director Ben Robertson.
"With NSW Design & Building Practitioners Act 2020 coming into force on 1 July 2021, there will be a 12 month transition period to allow industry to adapt to the new provisions," said National Practice Director Ben Robertson.
"As we reported last year, business interruption policy insurers lost a significant test case in the NSW Court of Appeal when the court found that many exclusion clauses, which insurers sought to rely upon to deny claims for business interruption due to COVID 19, were invalid," said Nexus National Practice Director Construction & Infrastructure Ben Robertson.