What actions you will need to take if your contractor licence (whether it be your individual or company licence) has been refused, cancelled or suspended by NSW Fair Trading. Here we provide a brief snapshot of the actions you should take.
Is the decision reviewable?
Most of the legislation that is administered by Fair Trading permits the review of that sort of decision and, if you have received a decision notification from Fair Trading, it will usually state whether the decision is reviewable or not.
Under section 7 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act), a decision is “administratively reviewable” if the NSW Civil and Administrative Tribunal (NCAT) has jurisdiction to review it. Section 83B of the Home Building Act 1989 (NSW) (HBA) gives the Tribunal such jurisdiction.
What are the grounds for the decision by Fair Trading?
The basis for the decision by Fair Trading will obviously depend on the facts and circumstances of each case, however, examples include:
- Having too many complaints lodged against the company and its related entities or director;
- Not complying with an order from NCAT concerning a building claim within the time stipulated;
- Not having a nominated supervisor for the company licence; and
- Not complying with the insurance requirements of the Home Building Act 1989 (NSW) (HBA).
If reasons are not provided, a written request can be made to Fair Trading for disclosure of the reasons for the decision under section 49 of the ADR Act. Fair Trading is then generally obliged to provide written reasons as soon as practicable (and in any event within 28 days) after receiving a request, which includes:
- The facts, with reference to the evidence and materials on which those findings are based;
- Fair Trading’s understanding of the law; and
- The reasoning processes that led Fair Trading to the decision made.
Requesting an internal review
You can request for an internal review of the decision from Fair Trading within 28 days from:
- If you have requested reasons to be provided, the date they are received (or any refusal to give reasons is received); or
- If you have not requested reason, the date the decision is received.
It is important for any request for an internal review to be lodged within time.
What if you are out of time to request an internal review?
If you are out of time, you can contact Fair Trading and request an extension of time to lodge an application for an internal review.
If an extension is refused, an application for an external review can be lodged with NCAT (see below).
What should be included in the internal review application?
Under section 53(2) of the ADR Act, an internal review application will need to:
- Be in writing;
- Be addressed to Fair Trading;
- Specify an address in Australia where a response from Fair Trading can be sent to; and
- Be lodged at the office of Fair Trading.
It should also contain all relevant documentation and information to support the application and demonstrate why the license should not have been refused, cancelled or suspended.
Fair Trading will have 21 days from the receipt of the internal review application to complete the review and provide its determination.
Fair Trading may make a decision to:
- Affirm the original decision;
- Amend the original decision; or
- Set aside the original decision and replace it with a new decision.
If you are unsatisfied with the decision made under the internal review, you can apply for an external review to NCAT.
External Review with NCAT
An application for an external review can be made to NCAT if:
- You have made a late internal review application and Fair Trading responds by indicating that the application was made out of time and it will not be considering the application; or
- It is necessary for NCAT to deal with the application to protect your interests, and the application is made within a reasonable time of the original decision.
If Fair Trading has made a decision regarding your contractor licence that you wish to have reviewed, you must ensure that you comply with all time frames stipulated and check whether you are within time to lodge an internal review application.
Wherever possible an application to have a decision reviewed internally should be made – apart from the fact that the legislation makes it clear that an application for an internal review should be made first, it is likely to be more cost-efficient than pursing with an external review via NCAT.
You must ensure that any application lodged includes all relevant documentation and information to support your grounds for review.
For more information on how this may affect you or if you require any assistance in relation to your contractor licence issues generally, please do not hesitate to contact Morrissey Law + Advisory.
Morrissey Law + Advisory communications are only intended to provide commentary and general information as at the date of publication. They are for reference purposes only, do not constitute legal advice and should not be relied upon as such. Formal legal advice should always be obtained about particular transactions, contracts or matters of interest before taking any action based on this communication. Authors and contributors may not be admitted in all State and Territories.