A judge has ruled that Sydney developer Jean Nassif and his company Toplace will be allowed to continue trading while the ruling to revoke their licences is reviewed.
In a NSW Civil and Administrative Tribunal case brought against the Commissioner for Fair Trading, Toplace Pty Ltd and its director Nassif asked for a stay of the decision to revoke their licences and a review of the decision made last year which would effectively ban them from the industry.
Toplace argued that the cancellation of the licences would severely impact the ability for it to undertake remediation works at its development sites.
A representative of the company said that as a result of the licences being revoked, there would be “irreparable damage to the brand and ability to secure future finance”.
NCAT Acting Judge Terence Simon stayed the decisions to ban Nassif and Toplace given the “degree of urgency” in rectification works, saying he was “mindful of the size and scope of the developments presently on foot and the number of people that the Toplace and Nassif decisions will affect”.
However, the decision was made under the condition that neither Nassif nor Toplace enter into any further contracts to undertake residential building work without the consent of NSW Fair Trading or the leave of the tribunal.
The judge made it clear that this was only a temporary stay, pending a review of the decision to cancel Toplace and Nassif’s licences.
Toplace welcomed the decision of NCAT and said that it would be obtaining independent expert advice to challenge the findings and rulings made against it.
“Toplace is confident of appealing the decision of the department, which is unwarranted, unprecedent and inconsistent with its approach toward other construction firms,” a company spokesperson told The Urban Developer.
“Jean Nassif has held a building licence for more than 30 years and in that time has delivered in excess of 30,000 homes.
“Toplace relies on the expertise of its contractors and consultants. Where defects have occurred, Toplace has returned to fix them. Toplace has always stood by its product.
“If the department’s order was not stayed by the tribunal, it would have caused thousands of people (through Toplace’s employees, contractors and suppliers) to lose their livelihoods.
“Toplace will be calling on NSW Ombudsman to investigate the department for a protracted and targeted campaign against Mr Nassif and his family which evidence suggests started well before any inspection of Toplace buildings.
“This has included the issuing of many defective orders that have subsequently been proven to be in error.”
In December 2022, NSW Fair Trading took action against Jean Nassif and his development company Toplace after a series of building rectification orders were issued for its developments over “potential serious defects” and concerns that transfer slabs were “not structurally adequate”.
It eventually revoked Nassif’s licence for 10 years, disqualifying him from holding any authority under the Home Building Act 1989, and permanently revoked the licence of Toplace.
Toplace argued that the decision to revoke the licences would impact existing developments.
The company currently has a five-tower development in the works at 299-309 Old Northern Road, Castle Hill, dubbed Skyview, and financed by Westpac Banking Corporation.
Three towers comprise 536 residential apartments and are currently under construction. Toplace has $118-million worth of contracts out to subcontractors for the development.
At its Box Hill development, financed by PAG, the construction of 660 residential apartments and a retail shopping centre are under way.
Of a total of 5171 units in Toplace Pty Ltd projects with reported defects, the company said, 899 units are currently either the subject of pending defect repairs or under repair by Toplace employees or sub-contractors.
The judge said that he accepted that Nassif and Toplace’s interests were “immediately and directly affected by the decision to cancel their licences”, resulting in them not being able to undertake any building and rectification works required by the department.
Toplace argued that revoking the licences would also financially impair them.
For instance, the embattled company said, it currently has 86 contracts for Skyview apartments which have been exchanged but not yet settled, with a total value of $74 million, which are at risk of not settling if Toplace’s contractor licence is cancelled.
They also argued that the cancellation of licences would cause safety issues on site.
The Commissioner for Fair Trading argued that there was no evidence that any of the projects are dependent on Nassif as a supervisor and that remediation works could be undertaken by new contractors.
This was refuted by the judge, saying it would take too much time to find suitable replacements.
While the judge was not convinced that the cancellation of licences would cause safety issues as the applicants argued, he did acknowledge that revoking Toplace’s licences would result in the company not being able to complete works for which they are contracted for and “that will have substantial financial consequences for the corporation”.
