Background
Prestigious Plumbing Pty Ltd, holding a contractor licence under the Home Building Act 1989 (NSW), received a Notice on 19 November 2025 from Ms Giulietta Siciliano, an authorized delegate of the Secretary of the Department of Customer Service. The Notice required production of various documents and information pursuant to sections 127(2)(a) and (b) of the Home Building Act. The investigation arose following complaints regarding alleged breaches involving misleading pricing practices and substandard work at four residential properties across New South Wales.
The plaintiff challenged the validity of the Notice, arguing that the Secretary failed to disclose the specific “matter” that was or may be the subject of disciplinary proceedings, asserting an implied “entitlement disclosure condition” in section 127(2). The plaintiff contended that without such disclosure, it could not understand why the Secretary was entitled to demand the requested information and could not assess the relevance of the requests.
The defendants submitted that the Notice must be understood in context, including the accompanying notice to show cause and the factual circumstances of the investigation. They argued that the broad statutory definition of “relevant information” in the Home Building Act did not require such disclosure, and that the standard must be adapted to the investigative context.
The Court’s Holding
Justice Price AJA held that an implied “entitlement disclosure condition” does apply to notices issued under section 127(2) of the Home Building Act. The Court found that a notice must disclose the basis upon which the Secretary is entitled to require the information sought, enabling the recipient to understand the relationship between the requested information and the specific matter that is or may be the subject of disciplinary proceedings.
The Court declared paragraphs 2(a), (b), and (c) of Schedule A of the Notice to be invalid. These paragraphs required the plaintiff to provide: (a) a list of all employees; (b) a list of all subcontractors; and (c) a list of all trading names and business identifiers used during the relevant period. However, the Court found that other portions of the Notice—including information requests relating to the specific work carried out at the four residential sites—were capable of severance and therefore valid. The Court dismissed the summons subject to this partial declaration of invalidity.
Key Takeaways
- An implied “entitlement disclosure condition” applies to notices under section 127(2) of the Home Building Act 1989 (NSW).
- A statutory notice must disclose sufficient information to enable the recipient to understand which specific “matter” under investigation justifies the request for information.
- Statutory powers granting investigative agencies broad discretion to demand information still carry implied procedural protections requiring fair notice of the factual basis for the demand.
- Statutory notices may be amenable to severance, allowing invalid provisions to be struck down while permitting valid, severable portions to remain enforceable.
Why It Matters
This decision establishes important procedural protections for regulated entities receiving notices under investigative powers. While regulatory agencies require broad investigative authority to examine potential breaches, the Court held that such authority is not unfettered. Recipients of investigative notices are entitled to understand the specific factual matter triggering the request, rather than having to reverse-engineer the investigation’s focus from the documents and information demanded. This balance protects regulated entities from indefinite or arbitrary information demands while preserving the regulator’s investigative effectiveness.
The decision will influence how regulators under the Home Building Act and potentially other statutes issue investigative notices. It signals that while context surrounding a notice may inform its interpretation, the notice itself should disclose the matter under investigation with sufficient clarity. For practitioners advising businesses receiving regulatory notices, the decision underscores the importance of challenging notices that fail to identify the specific factual subject matter of the investigation.