Kioussis v Director General, Department of Fair Trading [2002] NSWADT 2 (14 January 2002)

Last Updated: 16 May 2002

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Kioussis -v- Director General, Department of Fair Trading [2002] NSWADT 2

PARTIES: APPLICANT

Penelopy Kioussis

RESPONDENT

Director General, Department of Fair Trading

FILE NUMBERS: 013022

HEARING DATES: 09/08/2001

SUBMISSIONS CLOSED: 08/10/2001

DECISION DATE: 14/01/2002

BEFORE: Hennessy N (Deputy President)

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

Building Services Corporation Act 1989

Evidence Act 1995

Home Building Act 1989

Home Building Regulation 1997

Trade Practices Act 1974 (Cth)

CASES CITED: Trade Practices Commission v Collings Construction Co Pty Ltd and 5 ors 94050234, 10 December 1996

Harry Kioussis v Building Services Corporation Nos 162, 168, 169 and 170 of 1992, 10 September 1993

Harry Kioussis v Building Services Corporation Nos 153, 160, 161 and 163 of 1992, 15 April 1993

Venture Industries, H Kioussis and P Kioussis v Building Services Corporation No 164, 165, 166 and 167 of 1992, 21 June 1993

Building Services Corporation v Builtco Construction Management Pty Ltd (12/9/94

Penelopy Kioussis v Building Services Corporation No 1181 of 1994, 28 February 1996

Australian Broadcasting Tribunal -v- Bond and Ors [1990] HCA 33; (1990) 170 CLR 321

Hughes & Vale Pty Ltd v The State of New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127

Hinchcliffe v Building Services Corporation, Commercial Tribunal No 1115 of 1995, 24 July 1997

Bechara v Builders Licensing Board, District Court, unreported, 10 June 1980

Bozicevic v Building Services Corporation, Commercial Tribunal, unreported, No 134 of 1988, 22 March 1990

APPLICATION: Home Builder - issue of supervisor or registration certificate

Home Building Act - home builder - issue of supervisor or registration certificate

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

In person

RESPONDENT REPRESENTATIVE: RESPONDENT

T Grey, solicitor

ORDERS: 1. The decision of the Director General not to grant Ms Kioussis a qualified supervisor certificate is affirmed.

Reasons for Decision:

Introduction

1 Under s 24 of the Home Building Act 1989 (HB Act) a person may apply to the Director General, Department of Fair Trading (the Director General) for a qualified supervisor certificate. The certificate allows that person to supervise residential building work. The Director General refused Ms Kioussis' application because, in his opinion, she is not a fit and proper person to be issued with such a certificate. A secondary reason for the refusal was that Ms Kioussis has not complied with the HB Act and Home Building Regulation 1997 (HB Regulation) in relation to the provision of statements verifying her experience.

Jurisdiction

2 The Tribunal's jurisdiction to review the Director General's decision comes from s 83B(1) of the HB Act and 38 of the Administrative Decisions Tribunal Act 1997 (the ADT Act). The Tribunal's role is to determine what the correct and preferable decision is having regard to any relevant factual material and any applicable written or unwritten law: s 63 of the ADT Act.

Relevant legislation

3 Section 24 of the HB Act provides that a person may apply to the Director General for a certificate that the person is "qualified to do, and to supervise, residential building work or specialist work of a specified kind." In addition, under s 24(3), an application for a certificate is to be accompanied by such particulars as are required by the Director-General concerning:

(a) the fitness and ability of the applicant to do the work and any supervision for which the certificate is required, and

(b) any relevant qualifications held by, relevant experience of, and appropriate training that has been or is being undertaken by, the applicant.

4 Section 25 provides, in part, that after considering an application, the Director General must either issue a qualified supervisor certificate or reject the application. The HB Regulation may specify the qualifications and other requirements that must be met before the Director General issues a certificate.

5 Section 25(3)(a) provides that an application for a certificate must be rejected "if the Director-General is not satisfied that any such requirement would be met were the certificate to be issued." Clause 20 of the HB Regulation sets out the requirements. One of the requirements is that an applicant be "a fit and proper person": Cl 20(c).

6 Section 27 of the HB Act sets out the tasks that the holder of a supervisor certificate is authorised to carry out. That section provides that:

"(1) A supervisor certificate authorises its holder to do (and to supervise) such residential building work, or specialist work, as is described in the certificate when it is issued.

(2) A registration certificate authorises its holder to do such specialist work as is described in the certificate when it is issued (but only under the general supervision, and subject to the control, of the holder of an endorsed licence or a supervisor's certificate authorising supervision of the work).

(3) The authority conferred by a supervisor or registration certificate:

(a) is subject to the conditions applicable to the certificate for the time being; and

(b) may, on the application of the holder of the certificate, be varied by an order of the Director General set out in a Notice served on the holder of the certificate."

Evidence

7 Functions of a qualified supervisor. The Director General tendered an affidavit from Donald John van Keimpema, assistant Technical Investigator with the Department of Fair Trading. The affidavit set out various functions of a qualified supervisor including:

· performing residential building work;

· supervising other employees and subcontractors performing residential building work;

· liaising with owners, builders and sub-contractors, in relation to the building work, possible variations and anomalies which may arise;

· liaising with local authorities to ensure inspection of the work are carried out as required;

· costing of any variations to the contract;

· verify accounts to ensure that no excess charge is incurred; and

· complying with the requirements of the HB Act and other legislation relating to the work.

8 Ms Kioussis agreed that the functions of a qualified supervisor include those identified in Mr van Keimpema's affidavit.

9 Background. In 1978 Ms Kioussis' father, Harry Kioussis, was granted a builder's licence. In 1980 Venture Industries Pty Limited (Venture), a company of which Harry Kioussis was a director, was granted a full builder's licence. Harry Kioussis was also granted a qualified supervisor certificate.

10 Ms Kioussis gave evidence that she has always been interested in being a builder and in being involved in her father's company. When she finished the Higher School Certificate in 1986 she did a Building Diploma at Sydney TAFE. For approximately three years, she worked for Venture as an employee. She started off estimating quantities, reading plans, fitting out commercial premises and dealing with architects. In 1989, when she was 19 years old, she became a director of Venture. Ms Kioussis said that she was aware that she was a director of Venture but did not understand the duties and responsibilities of a director. Ms Kioussis told the Tribunal that her father undertook all the day to day running of the business.

11 Breaches of the Trade Practices Act. Collings Constructions Pty Ltd (Collings Constructions) contracted with people to build display homes customised to their requirements. Wayne Collings, of Collings Constructions, introduced clients to the builder, Venture. The Trade Practices Commission (TPC) investigated the arrangement between Wayne Collings and Venture and the conduct of Venture during the period from October 1988 to April 1992. Following this investigation the TPC brought an action against Venture and others including Ms Kioussis and her father in the Federal Court. The proceedings were transferred to the Supreme Court and Hunter J handed down a decision in December 1996. (Trade Practices Commission v Collings Construction Co Pty Ltd and 5 ors 94050234, 10 December 1996) The crux of the case was that Collings Construction structured a contract price that was illusory because it was unreasonably low and subject to many exclusions. Collings passed the owners over to Venture for the construction of the home and retained no contractual control over Venture. In this way the owners, who had paid non refundable deposits, were exploited by Venture who forced on them contractual arrangements and variations which departed from the terms proposed by Collings Construction. In addition, the Court found that Harry Kioussis had fraudulently represented that he held a university degree in building. His Honour made no finding that Ms Kioussis had any actual knowledge of the falsity of Harry Kioussis' representations in relation to his university qualifications.

12 Ms Kioussis did not give evidence at the Supreme Court hearing. In summary, the findings of Hunter J in relation to Ms Kioussis were as follows (references are to the page numbers of the decision):

In relation to the Corbett's complaint, Ms Kioussis was the supervisor of the works and she was aware of the manner in which Venture used variation claims which were unjustifiably excessive. She used abusive language (p 53), was involved in acts of deception (p 55 and 56) and did not protect the Corbett's property when carrying out defective work (p 56). His Honour concluded that:

I think the involvement of P Kioussis in this contract administration to this exploitation exposes her as a knowing and willing party to Venture's exploitation of the Corbetts. Her refusal to provide supporting invoices, her threat of stoppages if her demands were not satisfied, the illegitimate nature of the Venture claims, in my opinion stamp her with knowing involvement in Venture's conduct (p 52).

In relation to the Staps' complaint, Ms Kioussis was abusive and engaged in offensive conduct (p 96), harassed the Staps by putting a caveat on their title (p 246) and either committed acts of vandalism or was present when they were committed. These acts were throwing a brick through the Staps' window, pouring acid over their vehicle and spraying a substance onto their camera (p 97).

In relation to the Tantis' complaint, Ms Kioussis made vituperative comments (p 168) and demanded payment for variations.

13 In general terms Hunter J found, in relation to Ms Kioussis, that:

In the absence of evidence from P Kioussis, I think I am entitled to infer from her extensive participation in the owners' projects that P Kioussis was aware, at all relevant times, of the incompetence of Venture (p 245).

I consider that her particular dealings with the owners revealed her awareness of Venture's deceptive practices with variations at the time of preparation of contract documents for execution by the owners. It is very hard to accept that in submitting these claims that she was oblivious to their inflated if not fraudulent nature (p 245).

It was P Kioussis who was involved in some of the more unsavoury aspects of the performance of the works by Venture including acts of vandalism and acts which offered no respect for the person or property of the owners (p 245).

I think the conduct of P Kioussis should be seen as that of a director of Venture and as being one of its willing and knowing instruments (p 245).

In my opinion P Kioussis should be held liable for those damages for which Venture is liable in respect of the claim of the Corbetts, the Staps, the Smiths, the Ferrises and the Tantis (p 248).

14 Ms Kioussis does not agree with the Supreme Court's conclusions. She says that she did not know at the time that her father had misrepresented to the Department that he had a degree. (I note that the Supreme Court found it unnecessary to resolve the question of whether she had knowledge of the fraudulent nature of Harry Kioussis' representations.)

15 Ms Kioussis said that her husband at the time, Nick Milios, was her legal representative in the TPC proceedings. She said he did not keep her fully informed of the litigation and she did not give any evidence at the hearing. In cross-examination before the Tribunal Ms Kioussis acknowledged that she was aware that the proceedings had commenced and that senior counsel was representing her. Ms Kioussis agreed that it appeared that a tactical decision had been made not to call her to give evidence. She said that she did not know the precise hearing dates and maintains that her solicitor should have at least told her about the hearing so that she could attend.

16 Complaints by owners. In addition to the Supreme Court proceedings, the Director General commenced "show cause" proceedings against Venture, Harry Kioussis and Ms Kioussis in the Commercial Tribunal. The Commercial Tribunal permanently disqualified Harry Kioussis from being the holder of any licence or certificate under the HB Act on the basis, among other things, of his false representations that he had tertiary qualifications which he did not have.

17 The Director General disqualified Ms Kioussis from holding any licence or certificate for two years. (She did not hold any licences or certificates at the time.) However in 1993 the Commercial Tribunal in the Smith complaint (Harry Kioussis v Building Services Corporation Nos 162, 168, 169 and 170 of 1992, 10 September 1993) set aside the disqualification decision and substituted a fine of $1,000. Venture was disqualified from trading.

18 In the Smith complaint, the Commercial Tribunal found that Ms Kioussis was the contract controller for some of the time during which the relevant works were carried out. The Commercial Tribunal found that if works had been inspected more regularly and closely by Harry Kioussis the poor work done by the company may not have occurred. Nevertheless the Tribunal found that the improper conduct occurred with Ms Kioussis' knowledge and imposed a $1000 penalty.

19 The respondent noted that the Commercial Tribunal imposed two other monetary penalties on Ms Kioussis in 1993 and 1995 (one of $1,000 and one of $500). In relation to these penalties, Ms Kioussis accepts the findings of the Commercial Tribunal. Ms Kioussis emphasised to the Tribunal that she did not hold a builder's licence or a supervisor certificate at that time. Her involvement was as a director of Venture and as the contract controller.

20 The Commercial Tribunal found in the Ferris case (Harry Kioussis v Building Services Corporation Nos 153, 160, 161 and 163 of 1992, 15 April 1993) that Ms Kioussis was the contract controller in relation to the construction of the residence in question. She was responsible for ordering materials and organising subcontractors. The Tribunal found that she was not qualified to supervise the work and that if Harry Kioussis had attended the premises more regularly the poor workmanship found by the Tribunal may not have occurred.

21 The Tribunal made similar findings in the Butcher complaint (Venture Industries, H Kioussis and P Kioussis v Building Services Corporation No 164, 165, 166 and 167 of 1992, 21 June 1993). Again, Ms Kioussis was employed as a contract controller at a time when she was in her final year of an associate diploma course in building. The Commercial Tribunal imposed a penalty on Ms Kioussis of $500 not only because of her position as a director of Venture but because of her positive role in connection with supervising rectification work.

22 Application for individual contractor's licence. Late in 1994 Ms Kioussis applied for an individual contractor licence. Ms Kioussis disclosed on the application form that she had been a director of Venture and Builtco. (Mr Grey, representing the Director General, conceded that an error had been made in paragraph 36 and following of the statement of reasons concerning the refusal to grant a qualified supervisor certificate. Contrary to the allegation in that statement, Ms Kioussis was not obliged to disclose that she had been subject to a bond in the past because the question asked whether she was subject to a bond now.)

23 The Director General refused her application on the basis that she was not a fit and proper person to hold a licence and that she was not capable of conducting the business for which the licence is required. On 28 February 1996 the Commercial Tribunal upheld that decision. (In the Matter of an appeal under s 85(a) of the Building Services Corporation Act 1989 between Penelopy Kioussis and Building Services Corporation No 1181 of 1994.) The Commercial Tribunal found that Ms Kioussis was not capable of conducting the business for which the licence is required. One of the reasons for this conclusion was that there was little or no evidence of her work experience or her experience of contractual or legal matters (at p 21). The Commercial Tribunal concluded with the comment, at p 25-26, that:

While the Triubnal has found against the appellant on this occasion, this does not mean that she will never be able to satisfy the criteria of being fit and proper. Nevertheless . . . sufficient time must elapse before it can be clearly indicated to the community that the appellant is entitled to hold the licence sought.

24 It should be noted that the decision of the Commercial Tribunal was handed down prior to the decision of Hunter J in the Supreme Court proceedings.

25 Failure to disclose information on application forms. In 1993 Builtco Construction Management Pty Ltd (Builtco) applied for a builder's licence. Ms Kioussis and two other people were directors of the company at the time. Question 8 of the application form read:

Has any director/member or any partnership or company of which they were a member or director, ever been refused or disqualified from holding a licence, authority, certificate or registration, or ever had any such instrument cancelled or suspended.

26 The "No" box was marked with a cross despite the fact that Venture had been disqualified at a time when Ms Kioussis was a director of that company. A contractor licence was issued to Builtco but was cancelled on 13 April 1994 as a result of the misrepresentation on the application form.

27 Ms Kioussis says she did not disclose the relevant information on advice from Nick Milios. Mr Milios was Builtco's solicitor. She can recall him telling her to tick the "No" box in response to this question.

28 In Building Services Corporation v Builtco Construction Management Pty Ltd (12/9/94) the Local Court found that failure to disclose the necessary information was a "deliberate fraud" and imposed the maximum penalty of $1,000 on Builtco for breach of s 34 of the Building Services Corporation Act 1989. Ms Kioussis says that this conviction was the result of a mistake by her legal adviser which occurred over 7 years ago. The fine was paid. She added that the Department of Fair Trading did not make any further inquiries in relation to Builtco's application and issued certificates relying on the responses on the form. Ms Kioussis says that she should not be held responsible for the mistakes made by her solicitor and the Department of Fair Trading.

29 The Commercial Tribunal (Penelopy Kioussis v Building Services Corporation No 1181 of 1994, 28 February 1996) found that Ms Kioussis was not honest with the Building Services Corporation as she knew that Venture's licence had been cancelled and that she had been a director. The Commercial Tribunal did not accept that Ms Kioussis should be excused because she relied on advice from Mr Milios.

30 In September 2000 Ms Kioussis applied for a qualified supervisor certificate. The decision to refuse that application is the subject of these reasons. Question 8 of the application form read:

Have you, or any partnership or company of which you were a member or director ever been refused or disqualified from holding a licence, authority, certificate or registration or had any such instrument cancelled or suspended?

31 Ms Kioussis disclosed that Venture lost its licence in 1992, but failed to disclose that Builtco's licence had been cancelled or that she had been refused a contractor licence. Ms Kioussis' explanation for her failure to disclose that Builtco's licence had been cancelled was that she "truly and honestly forgot." In relation to her failure to disclose the fact that she had been refused a contractor licence, she said that the application was made seven years previously and she misinterpreted the question. She said that she has never held a licence or certificate that has been cancelled or suspended. In her view it would have been preferable to have ticked the "Yes" box and given no details except that the Department has a full history of all the Kioussis matters. Ms Kioussis said that when the Department received her applications, they would have typed "Kioussis" into the computer and the history would have been set out. No disclosure on her part would make any difference to what the Department knows about her and the companies with which she has been involved. Therefore, there is "no issue" in relation to disclosure.

32 Unlicensed operations. In July 1994, a few months after Builtco's licence was cancelled, the Department became aware that Builtco was continuing to undertake work at 34 Mortlake Street, Mortlake and 29 Arthur Street, Croydon. (The Director General also mentioned work being carried out at 74 Chapel Street, Bankstown but it appears from evidence from Ms Kioussis and Mr Pappas' affidavit that neither she nor Builtco ever carried out work on that site.)

33 In her written submissions, Ms Kioussis stated that the clients of Arthur Street, Croydon terminated the contract when Builtco's licence was cancelled. In relation to the Mortlake property, Ms Kioussis said that it was 75-80% finished when Builtco's licence was cancelled and that the Building Services Corporation allowed Builtco to complete the project under the licence of Joseph Constantin.

34 Mr Alec Pappas, a registered architect, swore in an affidavit dated 27 April 1995 that his client had contracted with Builtco to construct a dwelling in Croydon. In July 1994 Mr Pappas' clients terminated their contract with Builtco when they found out that Builtco was no longer licensed.

35 In the 28 February 1996 decision, the Commercial Tribunal found, at p 23, that Ms Kioussis "deliberately avoided informing the owners of these properties (Croydon and Mortlake) that Builtco's licence had been cancelled." The Tribunal went on to find that the role of Mr Constantin as nominated supervisor for the Croydon and Mortlake properties was "fictional" (at p 24). Signs outside the Croydon and Mortlake properties naming Builtco as a licensed builder were still in place in July 1994, nearly three months after its licence had been cancelled. The Commercial Tribunal found at p 24, that Ms Kioussis knew about the signs and decided not to remove them because that would mean that Builtco would risk losing the contracts.

36 Mr Grey, representing the Director General, alleged that the arrangements made after Builtco's licence was cancelled involving Mr Constantin breached s 12 and 13 HB Act. Section 12 provides that:

An individual must not do any residential building work, or specialist work, except:

(a) as, or as a member of a partnership or an officer of a corporation that is, the holder of a licence authorising its holder to contract to do that work, or

(b) as the holder of an owner-builder permit authorising its holder to do that work, or

(c) as an employee of the holder of such a licence or permit.

37 Section 13 provides that:

(1) An individual must not do any residential building work, except:

(a) as the holder of an endorsed licence, a supervisor or registration certificate or an owner-builder permit, authorising its holder to do that work, or

(b) under the supervision, and subject to the direction, of the holder of an endorsed licence or supervisor certificate authorising its holder to supervise that work.

Maximum penalty: 200 penalty units.

(2) If the same facts establish an offence under this section and an offence under another provision of this Act or under any other Act or law, an individual is not liable to be convicted of both offences.

38 After Builtco's licence was cancelled Ms Kioussis was not an employee of a partnership or corporation which was licensed to contract to do building work. Builtco did not have a licence and Mr Constantin did not employ her.

39 Mr Grey also alleged that Builtco continued to be the nominated licence holder in respect of the projects at Adler Parade, Greystanes and Carlene Avenue, Padstow Heights, after its licence had been cancelled. The building application in relation to the Adler Street construction (signed by Ms Kioussis' sister Antonia who is a director of Builtco) nominated Builtco as the builder in relation to that property.

40 Ms Kioussis said that after Builtco's licence was cancelled, the projects at Adler Parade, Greystanes and Carlene Avenue, Padstow Heights were contracted by a licensed builder/supervisor, Mr Nick Housalas. The owners (Kristallo Constantin, Antonia Kioussis and Ms Kioussis) signed a contract with Mr Housalas. Mr Housalas carried out spot checks of the building work but was not involved in the day to day work. Builtco continued as the project manager and designer and Ms Kioussis was an employee of Builtco.

41 Mr Grey maintains that this arrangement also breached s 12 and 13 of the HB Act because Ms Kioussis was not an employee of Mr Housalas or an employee of a partnership or corporation which was licensed to contract to do building work.

42 Ms Kioussis said that she was not aware of s 12 or 13 of the HB Act at the time and maintains that she was subject to the supervision of Mr Housalas even though she was not his employee.

43 Referee's knowledge of projects. In support of her application for a qualified supervisor certificate, Ms Kioussis supplied a statement of Practical Experience document completed by Alex Sibir, an architect. Mr Sibir provided the following information:

This is to certify that the above applicant is well known to me in the capacity of project manager and that during the period from 9/97 to 8/00 carried out the work listed below in a satisfactory manner in accordance with normal trade practice.

Project address:

5 villa homes at Adler Parade, Greystanes

Restoration Work at No 42 Abbotsford Road, Homebush

3 townhouses at Carlene Avenue Padstow Heights.

44 Mr Sibir's statement says Ms Kioussis was involved with these projects during the three-year period from September 1997 to August 2000. Ms Kioussis conceded that this was incorrect because the Carlene Street, Padstow Heights town houses were finished before 1997 and Mr Sibir did not see them in construction. Furthermore, Mr Sibir did not see the 5 villas in Greystanes being constructed. He looked at the work when it was 92% finished and accepted Ms Kioussis' word that she had been responsible for the building work.

45 Mr Grey pointed to Ms Kioussis' acknowledgment of similar misleading statements in the transcript of evidence in the matter of Penelopy Kioussis v Building Services Corporation No 1181 of 1994, 28 February 1996. The hearing before the Commercial Tribunal involved Ms Kioussis' application for an individual contractor licence. At page 118 of the transcript for 24 May 1995, Ms Kioussis agrees that one of the projects (at Merrylands) which she listed as having been involved with during her employment with Builtco had not been commenced at the time.

46 References. Several character and professional references accompanied Ms Kioussis' applications to the Director General and to the Tribunal. Mr Andrew Phillips provided a reference which attested to Ms Kioussis' high standard in her technical works and ethics. Archimandrite Petritsis, rector of the Greek Orthodox Parish and Community of Burwood, provided a reference which contained the comment that "Penelopy distinguishes herself in her honesty, truthfulness, good manners, sensitivity of character and her friendly disposition towards others." Tim Olliffe, solicitor also provided a reference, but unfortunately it is of little assistance because it does not address the issue of Ms Kioussis' character.

Findings of fact

47 Many of the matters in issue in these proceedings have been the subject of previous findings by other courts and tribunals. The general rule is that evidence of any finding of fact, including those relating to credit, are not admissible to prove the existence of a fact in issue in these proceedings. Section 91 Evidence Act 1995 provides that:

(1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.

(2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.

48 The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: ADT Act s 73(2). Even so, the Tribunal must make its decisions based on logically probative evidence. The rules of evidence as set out in the Evidence Act 1995 provide a guide as to evidence that will tend to be reliable and relevant.

49 In the circumstances of this case, I have decided to admit evidence of certain findings of previous courts and tribunals because the decision-makers had before them more recent and comprehensive evidence than that available to this Tribunal. The Supreme Court and the other courts and tribunals had the opportunity to observe the oral evidence of several witnesses, whereas this Tribunal heard only from Ms Kioussis.

50 The decision not to present any evidence on behalf of Ms Kioussis in the Supreme Court proceedings was clearly a strategic decision made by her legal advisers. Ms Kioussis did not offer any additional evidence to the Tribunal which could have enabled me to make findings contrary to those of Hunter J.

51 On the basis of all the evidence, including certain findings made by other courts and tribunals, I make the following findings of fact.

52 Breaches of the Trade Practices Act. Because no separate evidence was led in relation to the circumstances surrounding Venture's breaches of the Trade Practices Act 1974 (Cth) I adopt the findings of Hunter J in relation to Ms Kioussis' knowledge and involvement in those contraventions and her conduct. In particular I find that Ms Kioussis was aware of the incompetence of Venture and of the deceptive practices in relation to variations to contracts. In addition, she used abusive language and engaged in offensive, deceptive and threatening conduct (including threatening stoppages, refusing to provide invoices and being involved in acts of vandalism).

53 Complaints from owners. Ms Kioussis said that she agreed with the Commercial Tribunal's findings in relation to the complaints by Smith, Ferris and Butcher. She was fined in relation to each of these complaints in relation to poor workmanship on these sites. While she was not a qualified builder or supervisor, she was on the site regularly and knew of the poor workmanship. She was liable in her capacity as a director of Venture.

54 Failure to disclose information in application forms. On two separate occasions Ms Kioussis failed to disclose relevant information in application forms. The first occasion was in 1993 when Builtco applied for a builder's licence. The second occasion was Ms Kioussis' application for a qualified supervisor certificate in 2000.

55 In relation to the non-disclosure of information on application forms, Ms Kioussis submitted that she should not be held responsible for the "mistakes" made by her solicitor and the Department of Fair Trading.

56 This submission is misconceived. It is Ms Kioussis' responsibility to honestly disclose relevant information. The fact that the Director General may be able to find out the relevant information by accessing computer or other records is not the point. The application forms clearly provide that it is an offence to make a statement or supply documentation which is false or misleading. Given the Local Court and Commercial Tribunal proceedings in relation to Builtco's failure to disclose relevant information, I do not accept that Ms Kioussis forgot that Builtco's licence had been cancelled. I also reject Ms Kioussis' evidence in relation to her application for a qualified supervisor certificate that she did not understand Question 8. That question clearly refers to the refusal of a licence as well as to suspension or cancellation of a licence.

57 Unlicensed operations. The evidence suggests that the clients of Arthur Street Croydon terminated the contract when they found out that Builtco's licence was cancelled. This was some three months after the cancellation. In relation to the Mortlake property, Ms Kioussis failed to point to any evidence that the Building Services Corporation allowed Builtco to complete the project under the licence of Joseph Constantin.

58 In the absence of any such evidence, and in accordance with the evidence outlined above and the findings of the Commercial Tribunal, I find that Ms Kioussis deliberately avoided informing the owners of the Croydon and Mortlake properties that Builtco's licence had been cancelled. In addition, she appears to have breached s 12 and/or s 13 of the HB Act as she was not an employee of Mr Constantin. Ms Kioussis admitted her ignorance of those provisions.

59 Similarly, in relation to the Greystanes and Padstow Heights properties, Ms Kioussis was not an employee of Nick Housalas nor was she an employee of a partnership or corporation which was licensed to contract to do building work. This appears to involve a breach of s 12 and/or 13 of the HB Act.

60 Referee's knowledge of projects. Ms Kioussis has provided misleading and incomplete information in support of her application for a qualified supervisor certificate. In particular, Mr Sibir's statement that Ms Kioussis was involved with certain projects during the three year period from September 1997 to August 2000 is incorrect. Similar misleading statements were made in relation to Ms Kioussis' application for an individual contractor licence.

Applicant's submissions

61 Ms Kioussis submitted that she is a fit and proper person to have a qualified supervisor certificate because she is a builder and has the relevant qualifications and experience. She says she graduated in 1994 with an Associate Diploma in Applied Science, Building and has over 13 years working experience in the industry. She is undertaking a Diploma of Business (Legal Services) and says her studies have taught her a great deal about the role of directors.

62 She has no criminal record and maintains that she is financially stable.

63 Ms Kioussis conceded that her father had been disgraced and embarrassed, but that she should not be held liable for his conduct. She agreed that she made the mistake of not looking after consumers adequately when working at Venture and she regrets those mistakes. Ms Kioussis said that she should have been more professional but was acting on her father's instructions and he was a very stubborn man. Harry Kioussis is now retired and has no involvement in any construction company.

64 Ms Kioussis also agreed that she failed to supervise tradesman adequately when working for Venture but that since then she has successfully supervised tradesman when building 5 villas at Greystanes. She says she should be given another chance.

65 Finally, Ms Kioussis pointed out that the Commercial Tribunal found that there might come a time when she is able to satisfy the criteria of being a fit and proper person.

Respondent's submissions

66 The Director General outlined the matters that, in his view, indicate that Ms Kioussis is not a fit and proper person to hold a qualified supervisor certificate. These include her conduct resulting in fines being imposed by the Commercial Tribunal in relation to consumer complaints, her failure to disclose material information on application forms, breaches and alleged breaches of the HB Act and inappropriate conduct towards consumers. The Director General submitted that in view of these alleged and proven breaches, Ms Kioussis displayed a gross ignorance of the most basic provisions of the legislation.

Reasons and decision

67 The issue which the Tribunal must determine, is whether the Director General made the correct and preferable decision in refusing Ms Kioussis' application for a qualified supervisor certificate. The ground for the refusal was that Ms Kioussis is not a "fit and proper" person to hold such a certificate.

68 In Australian Broadcasting Tribunal -v- Bond and Ors [1990] HCA 33; (1990) 170 CLR 321, at 380 the High Court was of the view that the expression "fit and proper" ". . . 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 activities which a qualified supervisor is authorised to carry out include:

· performing residential building work;

· supervising other employees and subcontractors performing residential building work;

· liaising with owners, builders and sub-contractors, in relation to the building work, possible variations and anomalies which may arise;

· liaising with local authorities to ensure inspection of the work are carried out as required;

· costing of any variations to the contract;

· verify accounts to ensure that no excess charge is incurred; and

· complying with the requirements of the HB Act and other legislation relating to the work.

69 In Hughes & Vale Pty Ltd v The State of New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127 at 156 Dixon CJ, McTiernan and Webb JJ said, in relation to the "fit and proper person" test that its 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. . .

70 On the basis of the comments in Australian Broadcasting Tribunal -v- Bond and Hughes & Vale Pty Ltd v The State of New South Wales (No 2) the holding of a qualified supervisor certificate under the HB Act attests:

· that the person will honestly perform his or her role as a qualified supervisor, (See, for example, Hinchcliffe v Building Services Corporation, Commercial Tribunal No 1115 of 1995, 24 July 1997 at p 20.)

· that the person is capable of competently carrying out all the activities which the certificate authorises the person to carry out; and

· that the person possesses sufficient knowledge to carry out those functions. (See Bechara v Builders Licensing Board, District Court, unreported, 10 June 1980, Cripps J at 6; Bozicevic v Building Services Corporation, Commercial Tribunal, unreported, No 134 of 1988, 22 March 1990 at 24.)

71 The findings of the Tribunal that demonstrate that Ms Kioussis has not been honest in the past include that:

· she was aware of the deceptive practices engaged in by Venture in relation to variations to contracts;

· she engaged in deceptive and threatening conduct towards clients of Venture;

· on two separate occasions she failed to disclose relevant information in application forms, without any reasonable excuse;

· she deliberately avoided informing the owners of the Croydon and Mortlake properties that Builtco's licence had been cancelled; and

· she provided misleading information in support of her application for a qualified supervisor certificate.

72 The findings adverse to Ms Kioussis in relation to her ability to competently carry out the activities required of a qualified supervisor are that:

· she was aware of the incompetence of Venture but did nothing about it,

· she used abusive language and engaged in offensive conduct towards clients of Venture, and

· she has been fined three times by the Commercial Tribunal in relation to her knowledge of poor workmanship.

73 The findings of the Tribunal that demonstrate that Ms Kioussis does not have sufficient knowledge of the legislation to carry out those functions are that she appears to have breached s 12 and/or s 13 of the HB Act when constructing the Croydon, Mortlake, Greystanes and Padstow Heights properties. Ms Kioussis admitted her ignorance of these provisions.

74 In all three areas identified above (honesty, competence and knowledge) Ms Kioussis has a less than satisfactory record. I accept that she was young and naive when she first became a director of Venture and that her father was an extremely influential character. But it is not the case that Ms Kioussis merely acquiesced in the misleading and deceptive conduct of Venture. Hunter J's decision makes it abundantly clear that she was privy to Venture's conduct and that she engaged in dishonest and threatening conduct herself. She acknowledges that she did not look after consumers or supervise tradesmen as well as she should have. While Ms Kioussis shows some insight into her behaviour, she does not appreciate its gravity. She was not able to satisfy me that she would not engage in such conduct again. Her subsequent behaviour (failure to disclose information and non-compliance with statutory requirements) while not as serious as the matters relating to clients of Venture, reinforces my concern that she is reluctant to accept full responsibility for her actions. Ms Kioussis is quick to blame others including her father, her former husband, her solicitors and the Department, for her own behaviour. In addition Ms Kioussis regards much of her conduct as defensible.

75 While Ms Kioussis continues to deny, minimise and deflect responsibility for her conduct, the public cannot have confidence that she will carry out the functions of a qualified supervisor with the honesty, competence and knowledge expected of such a person. Consequently she is not a fit and proper person to be granted a qualified supervisor certificate.

Orders

76 The decision of the Director General not to grant Ms Kioussis a qualified supervisor certificate is affirmed.