Australian Trades Pty Ltd v Secretary, Department of Customer Service

Australian Trades Pty Ltd v Secretary, Department of Customer Service [2025] NSWCATOD 153

Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37

Bronze Wing Ammunition Pty Ltd v SafeWork NSW [2016] NSWSC 1075

Houda v Seraphim [2025] NSWCATAP 135

House v R (1936) 55 CLR 499; [1936] HCA 40

Kearney v Amirbeaggi (No 3) [2025] NSWCA 234

New South Wales Bar Association v Stevens [2003] NSWCA 95; (2003) 52 ATR 602

Secretary, Department of Customer Service (Respondent)

T Lynch SC and M Klooster (First and Second Appellants)

1. This is an application by the appellants, Australian Trades Pty Ltd (ATrades) and Charbel Alha (Mr Alha) in their appeal against the condition imposed by the Tribunal on 5 December 2025 (the impugned condition) in granting a stay of the decision made by the respondent, the Secretary, Department of Customer Service (the Secretary) on 24 November 2025, to continue an ex parte interim order granted by the Appeal Panel on 10 December 2025 staying the impugned condition (the stay continuation application).
2. I have decided to dismiss the stay continuation application as I am not satisfied that ATrades and Mr Alha have discharged the onus to demonstrate a proper basis for a stay which will be fair to all parties.
3. The parties are in disagreement as to whether the appeal raises serious issues for determination, there is a real risk that ATrades will suffer prejudice or damage if the stay of the impugned condition is not granted, and ATrades and Mr Alha have discharged the onus to demonstrate that the balance of convenience and the competing rights of the parties favours a stay of the impugned condition.
4. I am satisfied that the appeal raises serious issues for determination, and there is a real risk that ATrades will suffer prejudice or damage if the stay of the impugned condition is not granted. On the question of the balance of convenience the parties adduced evidence as to competing conditions that should be imposed. I am not satisfied that ATrades and Mr Alha have demonstrated that their proposed conditions are sufficient to protect the public interest. It follows that I have discharged the interim order.
5. Before considering the stay continuation application, I have set out or summarised the following matters:

(1) the background to the appeal and the stay continuation application;

(2) the evidence of the parties;

(3) the submissions of the parties;

(4) the jurisdiction of the Appeal Panel;

(5) the applicable statutory provisions;

(6) the applicable legal principles.

The background to the appeal and the stay continuation application

1. ATrades, which is the holder of contractor licence No 190178C under the Home Building Act 1989 (NSW) (HB Act), carries on business as a plumbing contractor and Mr Alha, who is the holder of contractor licence No 300418C under the HB Act, is a director and nominated supervisor of ATrades.
2. On 19 August 2025, a delegate of the Secretary served written notices to show cause under the HB Act on ATrades and Mr Alha (the 19 August 2025 show cause notices), and suspended their contractor licences for 60 days (the suspension decision).
3. On 21 August 2025, ATrades and Mr Alha commenced proceedings in the Occupational Division of the Tribunal against the Secretary by lodging an administrative review application form in which it sought an administrative review and stay of the suspension decision.
4. On 27 August 2025, the Secretary issued a public warning in relation to ATrades and Mr Alha (the warning).
5. On 27 August 2025, a delegate of the Secretary imposed the following conditions on ATrades' contractor licence for one year (the conditions decision):

"1) The Authority Holder must display, prominently and in large font, at the top of any website advertising or offering, or in any other electronic advertisement advertising or offering, the Authority Holder's services that are authorised by the Authority, the following statement: 'WARNING: As a requirement of our ongoing licencing under the Home Building Act we are required to notify you that the regulator, Building Commission NSW, has warned consumers not to deal with our company in connection with residential building works or plumbing and drainage works because of the risk that consumers may be exposed to unconscionable conduct, use of unfair contract terms, and undue harassment and coercion. A copy of the warning is available on the public register which can be accessed at verify.licence.nsw.gov.au';

2. The Authority Holder must not allow any person engaged, directly or indirectly by the Authority Holder, to attend any premises to provide a quote or advice in relation to the doing, the necessity of doing, or contracting to do, any works authorised by the Authority, unless that person is the holder of a relevant contractor licence, supervisor certificate or tradesperson certificate under the Home Building Act 1989;

3. The Authority Holder must not alter its name from Australian Trades Pty Ltd;

4. The Authority Holder must include the name Australian Trades Pty Ltd next to any trading name or other name identifying itself, when it is advertising on websites or in other electronic advertisements; and

5. Authority Holder must store and retain records of compliance with condition (1) to (4) above and provide those records on request of the Secretary within (7) days."

1. On 29 August 2025, ATrades and Mr Alha lodged an amended administrative review application form in which they sought an administrative review of the suspension decision, the conditions decision and the decision to publish the warning.
2. On 5 September 2025, the Tribunal constituted by Senior Member J Gatland stayed the conditions decision so far as conditions 1, 2 and 5 until further order: Australian Trades Pty Ltd v Secretary, Department of Customer Service [2025] NSWCATOD 153.
3. On 8 September 2025, a delegate of the Secretary served further written notices to show cause under the HB Act on ATrades and Mr Alha (the 8 September 2025 show cause notices).
4. On 24 November 2025, the Secretary's delegate made the following two decisions (the cancellations decisions):

(1) the decision to cancel the contractor licence of ATrades, and to permanently disqualify it from being the holder of any authority under the HB Act on two grounds:

(a) it had engaged in "improper conduct" for the purposes of ss 56(c) and 51(1)(b) of the HB Act, by failing to comply with the requirements applicable to the doing of the work authorised by the licence (Ground 1);

(b) it was for the purposes of s 56(b) of the HB Act not fit and proper to hold its licence, on the basis that it had twice engaged in dishonesty (Ground 2).

(2) the decision to cancel the contractor licence of Mr Alha, and to permanently disqualify him from being the holder of any authority, and to permanently disqualify him from being a member of a partnership, or an officer of a corporation that is a member of a partnership, that is the holder of an authority, and an officer of a corporation that is the holder of an authority, under the HB Act on the ground that as the director and nominated supervisor of ATrades he was responsible for it engaging in illegal conduct being Grounds 1 and 2.

1. On 26 November 2025, ATrades and Mr Alha lodged a second amended administrative review application form in which they seek an administrative review of the conditions decision and the cancellations decision and a stay of the cancellations decision.
2. On 27 November 2025, the Tribunal constituted by Principal Member K Robinson relevantly made a decision staying the cancellations decision until 5.00 pm on 5 December 2025 on certain conditions.
3. On 5 December 2025, the Tribunal constituted by Senior Member J Gatland heard the stay application and relevantly made a decision staying the cancellations decision on the impugned condition set out below (the stay decision), but did not provide oral or written reasons for the decision:

"CONDITION 1: The Applicants are not to contract with or carry out any residential building work for any consumer where the consumer is a natural person"

1. On 8 December 2025, ATrades and Mr Alha lodged the following documents:

(1) a notice of appeal against the stay decision so far as the impugned condition which specifies the following two grounds of appeal:

"2. The decision was made using the material in the Exhibit AG-I to the affidavit of Andrew Garcia made on 03.12.2025

(1) that was admitted for a limited purpose to evidence a quantum of complaints,

(2) for purposes other than those for which it was admitted, as evidence of the truth of what was said in those complaints.

3. The decision was unreasonable, and unjust."

1. On 10 December 2025, the Appeal Panel constituted by myself granted an ex parte interim order staying the operation of the impugned condition (the interim order).
2. On 11 December 2025, the Appeal Panel constituted by myself made procedural orders for the hearing of the appeal and listed the appeal for hearing on 13 February 2026 at 2.15 pm in Sydney for a half day. The parties declined three earlier hearing dates.

1. ATrades and Mr Alha relied on the following evidence which was admitted into evidence without objection and marked:

(1) the affidavit of Mr Alha sworn on 8 December 2025 and exhibit CA-1 (the 8 December 2025 Alha affidavit): exhibit A1;

(2) proposed conditions (the ATrades/Alha conditions): exhibit A2;

(3) documents comprising tabs 1 to 8 in the bundle of documents tendered on 12 December 2025 (the ATrades/Alha documents): exhibit A3.

1. Mr Alha in the 8 December 2025 Alha affidavit has relevantly given the following evidence:

(1) the nature of ATrades' business is a 24 hour a day plumbing service for customers; it has not provided plumbing services to builders, developers, strata managing agents and real estate agents for around three years; it provides same day services to natural persons except on rare occasions a customer requests or directs an invoice to be issued to a company ([14]-[17]);

(2) from 1 July 2025 to 24 November 2025, ATrades issued 3,412 quotes of which 1,935 were accepted (1,887 being 97.5% by natural persons and 48 being 2.5% by companies) and invoiced $6,252,016.32 from the 1,935 accepted quotes (with $121,175.60 from the 48 accepted quotes by companies being 1.9% of total invoices) ([18]);

(3) the impact of the impugned condition is that ATrades will have to cease trading ([20]-[22]).

1. The ATrades/Alha conditions as revised during the hearing are in the following terms (in which "the Act" is a reference to the HB Act):

"CONDITIONS

CONDITION 1: The First Appellant will provide a written quote identifying the works to be done and the price (First Quote) prior to any initial engagement by the customer on site for such works. The First Quote will not be for work which requires insurance under Part 6 of the Act other than with respect to urgent repairs within the meaning of s 62(a) to (I) of the Residential Tenancies Act 2010 (NSW) and must state that the customer is not under any obligation to enter into the First Quote. The First Quote must be accepted in writing by the customer prior to any works commencing.

CONDITION 2: If upon after attendance further work is proposed, the further work, the scope of that further work and the price for it will be provided by the First Appellant in a further written quote (the Second Quote) but the work will not be performed by the First Appellant on the same day the Second Quote is provided to the customer and the Second Quote must be accepted in writing by the customer prior to any further works commencing.

CONDITION 3: The cooling off rights in respect to works requiring insurance under Part 6 of the Act will be extended to all works the subject of the Second Quote and subsequent written quote(s) until such time as such works commence and the customer will be expressly informed of this right in the Second Quote and subsequent written quote(s).

CONDITION 4: If the works carried out pursuant to the Second Quote and subsequent written quote(s) require insurance under Part 6 of the Act, a copy of those written quotes will be provided to the Respondent prior to such works being commenced by the First Appellant.

CONDITION 5: The First Appellant will provide the Respondent with a written list of all contracts entered into specifying the customer's name, address and date of the contract every 14 days from the date of these Orders.

CONDITION 6: Where the cost of any works (including urgent repairs) exceeds $20,000.00, the First Appellant will have the cost and quality of those works independently certified at the First Appellant's cost upon conclusion of those works and provide such written certification to the Respondent within 14 days of full payment being received."

1. The cancellation decision relating to ATrades (which is tab 3 of the ATrades/Alha documents) records that ATrades has repeatedly grossly overcharged customers and coerced and intimidated them into paying money. It also failed to ensure that employees wore personal protective equipment when they were exposed to raw sewerage at work. The Executive Summary includes the following summary of misconduct (in which "the Act" is a reference to the HB Act) and ATrades' response:

"Summary of Misconduct

ix. Australian Trades operates a carefully crafted unconscionable scheme against consumers. The scheme caused the foreseeable risk of, and actual, sharp practices in Australian Trades' dealings with its consumers, which were against conscience and were manifestly unfair, and the scheme was driven by avarice to maximally extract monies from unsuspecting victims, preying on their vulnerability. The scheme was perpetrated by exploiting the trust NSW consumers have, and rely on, in their dealings with licensed tradespeople.

x. Over many years Australian Trades' operated a system of conduct or pattern of behaviour in breach of section 21 of the Australian Consumer Law that operated in the following way:

x.i. Australian Trades advertises specifically to consumers who require plumbing services on an emergency basis, or otherwise at short notice;

x.ii. in order to take advantage of consumers, Australian Trades leveraged the vulnerability created by the trust NSW consumers have in the honesty and integrity of persons who are required to be fit and proper to hold a licence under the Act;

x.iii. Australian Trades pays its agents an exceedingly high sum of commissions to carry out its system, which would have the foreseeable risk of those agents aggressively pursuing increased profits, even where the conduct in that pursuit, would be unconscionable;

x.iv. it targets vulnerable consumers by inducements such as "$0 call out fees", "honest pricing" and "same day or its free" offers. These representations are demonstrably false based on what is contained within the wording of Australian Trades' Standard Terms and Conditions (T&Cs);

x.v. after consumers contact Australian Trades, it will book an appointment and send an agent to the residence. In some circumstances the agents are not licensed under the Act to undertake any works, or supervised by a person who is licensed;

x.vi. once an agent attends the consumer's home they then initially quote verbally for the work. The quotes are for 'fixed fee' services, which enables significant overcharging of customers based on the nature and extent of the works, often in circumstances where the work carried out is either short notice or emergency work;

xvii. the system created the risk of, and manifested in, agents making misrepresentations about the necessity, urgency or value of the works;

x.viii. having been induced by the "$0 call out fee", the consumer is then liable to pay the call out fee if they do not accept the quote;

x.ix. used an Employee Handbook to instruct employees to place pressure on consumers to contract with Australian Trades and trained it staff to escalate its sales pitch to the supervisor in the seemingly expected event that the consumer would not agree to the quoted price because it was too high;

x.x. Australian Trades contracts with the consumers by having them sign a contract (incorporating the quote) on a tablet device. However, Australian Trades obtains the signature by showing a blank screen with a box to place their signature. The consumer is not shown a written copy of the quote before they are directed to sign in the blank box;

x.xi. the T&Cs referable to the specific quote are not shown or otherwise provided to a consumer prior to a signature being obtained. That signature is then used to confirm the consumers' agreement to the quote and the T&Cs (the contract) with no opportunity for the consumer to view or negotiate terms prior to signing, and thereby entering, the contract;

x.xii. until 8 May 2025, Australian Trades utilised a software program that would automatically apply the signature of the consumer to any subsequent document issued by Australian Trades (including invoices, which indicate an agreement by (the consumer that they have inspected the works that were carried out), unless and until the consumer signed a further document;

x.xiii. the system created the risk of, and manifested in, the consumer being under the understanding that they are being quoted a fixed price to resolve their issue when, with the initial quote, the consumer is actually being quoted for an inspection of the issue or, at most, some initial investigative works;

x.xiv. following the inspection, the system created the foreseeable risk of, and manifested in, its agents making fraudulent representations about the necessity, value or urgency of plumbing works;

x.xv. agents then demand payment immediately upon the issue of an invoice, regardless of the quantum of that invoice or the consumer's capacity to immediately pay, where this is a significant deviation from usual commercial practice and in circumstances where the T&Cs contain unusual and ambiguous terms of payment which are not drawn to the consumers attention;

x.xvi. using the T&Cs as support for demanding immediate payment and the use of unfair contract terms which purport to limit the rights of consumers;

x.xvii. through the unfair contract term concerning right of entry to the consumers premises to destroy property to recover materials, the system created the foreseeable risk of, and manifested in, Australian Trades' agents not leaving the premises if asked to so do by the consumer in the event they disputed, or otherwise did not immediately pay, invoices often in the sum of tens of thousands of dollars;

x.xviii. had a policy of illegally refusing to provide itemised bills when requested by consumers;

x.xix. in breach of section 24 of the ACL, the T&Cs includes what are properly characterised as unfair contract terms, including:

x.xix.i. allowing Australian Trades to take out a lien against the consumers home to recover the cost of the quote;

x.xix.ii. if full payment is not made immediately, allowing Australian Trades' agents to forcefully enter the consumers property and allow it to, without any prior demand, cause damage and destruction to that property in order to retake materials or goods and then resell them, even in circumstances where the consumer may have paid for those materials by virtue of a prior invoice or progress payment;

x.xix.iii. entitles Australian Trades to immediately charge 20% interest per annum on unpaid monies under the contract, even before the consumer can take steps to satisfy themselves that the works have been completed in accordance with the contract;

x.xix.iv. indemnifies Australian Trades for any claim or demand or action (including by a consumer) for any loss arising from the works, even where Australian Trades caused the loss through wilful or negligent conduct; and

x.xix.v. unilateral right of Australian Trades to change the terms of a contract with consumers;

x.xx. created the foreseeable risk of, and manifested in, agents encouraging consumers to enter into arrangements for unnecessary and/or grossly inflated price of works with third party financiers such as Humm and Zip on the basis of a 'buy now and pay later' type service;

x.xxi. the system created the foreseeable risk of, and manifested in, agents engaging in unlawful intimidation and harassment to recover payment under unlawful contracts arising from false and misleading representations, which in the case of one consumer, resulted in an employee following them to a bank to ensure payment was made and, in another case, requiring police to be called and attend the premises; and

xxxii. upon the making of complaints by consumers, Australian Trades had a policy of inappropriately pressuring and misleading consumers about exercising their rights to make a complaint, or withdrawing complaints, to Fair Trading NSW or the Tribunal.

xi. In addition to the systems and processes referred to above, which show Australian Trades is not fit and proper to be a licence holder, Australia Trades also engaged in specific illegal conduct such as:

xi.i. failing to provide itemised invoices when requested to do so by consumers, in breach of section 101 of the ACL;

xi.ii. engaging in misleading and deceptive conduct, over quoting the value of $550.00 worth of services by approximately $30,000.00, in breach of section 18 of the ACL;

xi.iii. engaging in harassment and coercion, in breach of section 168 of the ACL, such conduct including:

xi.iii.i. not leaving a consumer's premises when requested to do so, resulting in the attendance of NSW Police;

xi.iii.ii. demanding payment for an invoice only hours after the invoice had been issued and where the works had concluded at midnight the night before and, when not immediately paid, threatening immediate legal action and sending employees to the consumer's residence to demand payment in person; and

xi.iii.iii. threatening to cancel HBCF insurance for the works if payment was not immediately made;

xi.iv. failing to ensure the health and safety of its employees, including apprentices, by exposing them to sewerage without appropriate PPE and thereby contravening provisions of the Work Health and Safety Act;

xi.v. contravening provisions of the Act with respect to breaches of statutory warranties, not obtaining HBCF insurance prior to commencing work, failing to comply with contractual requirements in respect of cooling off periods and demanding progress payments without the authority to do so;

xi.vi. contravening section 6 of the Plumbing and Drainage Act by allowing unqualified and unsupervised employees to undertake plumbing and drainage works;

xi.vii. engaging in conduct that would constitute offences under the Crimes Act 1900 (NSW), namely:

xi.vii.i. obtaining, and attempting to obtain, financial advantage by deception when it charged a 98 year-old man $5,981 .60 for work that was valued at $550.00 and then quoted an additional $31,475.40 to complete the same work (that was only valued at $550.00); and

xi.vii.ii. knowingly producing a false document, namely a checklist that was required pursuant to clause 8 of the Home Building Regulation 2014 (HB Regulation), in circumstances where that document was produced in purported compliance with the HB Regulation.

...

Australian Trades' response

When the unlawful conduct of Australian Trades was drawn to its attention in detailed Notices to Show Cause, which were supported by 28 witness statements and business records, its response was to show:

no acknowledgement or remorse for the harm it caused.

no indication of any insight as to why the behaviour was unlawful.

no indication it was willing to provide restitution to the consumers identified and make good the harm it caused; and

no indication it would change any of its false advertising, unfair contract terms, or implement other changes to its business practices, despite knowing they were unlawful."

1. The Secretary relied on the following evidence which was admitted into evidence without objection and marked:

(1) the affidavit of Ruoshui (Lance) Zhang (Mr Zhang) affirmed on 11 December 2025 (the 11 December 2025 Zhang affidavit): exhibit R1;

(2) two volumes of documents (the Secretary's documents): exhibit R2;

(3) proposed conditions (the Secretary's conditions): exhibit R3;

(4) the affidavit of Mr Zhang affirmed on 12 December 2025 (the 12 December 2025 Zhang affidavit): exhibit R4.

1. Mr Zhang in the 11 December 2025 Zhang affidavit has relevantly given the following evidence:

(1) at 12pm on 27 November 2025, the Secretary lodged and served the affidavit of Mr Garcia affirmed on 27 November 2025 ([7]). Mr Garcia's evidence includes that between 1 July 2025 and 24 November 2025, the Building Commission NSW (the Commission) has received approximately 121 further complaints related to ATrades;

(2) on 3 December 2025 at 5.46pm, the Secretary served the affidavit of Mr Garcia affirmed on 3 December 2025 (the 3 December 2025 Garcia affidavit) and accompanying exhibit AG-1. Exhibit AG-1 contained the records of the Commission in relation to 78 complaints received between 1 July 2025 and 24 November 2025 from customers in relation to ATrades and other businesses associated with its ABN ([9]);

(3) he attended the hearing of the stay application on 5 December 2025. The Tribunal admitted exhibit AG-1 into evidence over the objection of ATrades and Mr Alha that its admission should be limited to evidence of the quantum of complaints, and ruled that the matters raised in the objection would be treated as a matter of weight. However, little weight would be given to the customer complaints ([10]-[11]).

1. The Secretary's documents comprised exhibit AG-1 to the 3 December 2025 Garcia affidavit.

1. Mr Zhang in the 12 December 2025 Zhang affidavit has relevantly given evidence as to the position of the parties at the hearing of the stay application on 5 December 2025.

1. The Secretary's conditions as revised during the hearing are in the following terms:

"1. Before the First Appellant, Australian Trades Pty Ptd, carries out any work for a customer:

a. where the total amount proposed to be charged to the customer is $500 or more, there must be independent certification by persons to be identified by the Respondent of the reasonableness of the proposed work and the reasonableness of the amount proposed to be charged;

b. Australian Trades must not carry out the proposed work unless and until the independent certification has been provided to the Respondent and the Respondent approves that the proposed work may occur; and

c. Australian Trades must only perform the proposed work and must not charge for it more than the amount approved to the Respondent in the independent certification.

2. To the extent the Authority Holder maintains website in connection with the Contractor Licence No. 3004180, the Authority Holder must display, prominently and in large font the following statement: 'WARNING: Building Commission NSW has made a decision to cancel the licence of this entity, Australian Trades Pty Ltd. That decision is currently stayed by the NSW Civil and Administrative Tribunal. The public register contains details of the cancellation decision which can be viewed at verify.licence.nsw.gov.au

3. To the extent the Authority Holder maintains a telephone number in connection with Contractor Licence No. 3004180 for use by the public for enquiries, when contacted by telephone by a consumer the Authority Holder must read aloud the following statement to that consumer prior dealing with their enquiry: 'WARNING: Building Commission NSW has made a decision to cancel the licence of this entity, Australian Trades Pty Ltd. That decision is currently stayed by the NSW Civil and Administrative Tribunal. The public register contains details of the cancellation decision which can be viewed at verify.licence.nsw.gov.au; and

4. When physically attending the premises of any consumer on the first occasion after the date of this decision, the Authority Holder must as soon as possible provide a physical copy of the public register entry for Contractor Licence No. 3004180 and draw the consumers attention to the notation indicating a cancelation decision has been made by Building Commission NSW and that decision is currently stayed by the NSW Civil and Administrative Tribunal and state that the consumer is not under any obligation to enter into a contract with the Authority Holder and may ask the Authority Holder to immediately leave the premises."

1. ATrades and Mr Alha relied upon the following written submissions:

(1) Submissions for the Applicants dated 5 December 2025;

(2) Appellants' Outline dated 12 December 2025.

1. Senior counsel for ATrades and Mr Alha made oral submissions that in substance repeated their written submissions.
2. ATrades and Mr Alha in Submissions for the Applicants dated 5 December 2025 refer to aspects of the background to the appeal and the stay continuation application, and relevantly submit:

(1) the cancellation decision with immediate effect, if unstayed, will terminate ATrades' business, and render the outcome of the review application nugatory and thus ineffective;

(2) the fundamental difficulty in the Secretary's approach is that it is a-contextual. The Secretary subsumes the correctness of the factual findings made in relation to the 19 transactions and the legal characterisation of those findings as summarised in Grounds 1 and 2 of the cancellation decisions, and the typicality of what the Secretary found to have occurred;

(3) the number of complaints relative to the number of jobs precludes a conclusion that the Secretary's evidence establishes the typicality of its conclusions. The atypicality of the Secretary's evidence is established by the evidence of very many customers' expressing clear satisfaction with the services of ATrades;

(4) the point is not that various matters that found the cancellation decisions are not correct but that the small number of transactions cannot be extrapolated to prove the contention of "systemic unconscionability" in which conclusions were reached. A hearing for a stay is not an occasion for a determination of the truth of the findings or the correctness of the legal conclusions of the cancellation decisions. If what has been concluded cannot properly be described, namely evidentially established, as typical, then those conclusions do not establish a public interest requiring the termination of ATrades' business without a substantive hearing.

1. ATrades and Mr Alha in Appellants' Outline dated 12 December 2025 refer to aspects of the background to the appeal and the stay continuation application, and relevantly submit:

(1) the effect of the impugned condition is to negate the effect of the grant of a stay;

(2) as to the first ground of appeal, there is no material difference in the understanding of the parties as the evidentiary ruling made by the Tribunal on 5 December 2025 with respect to exhibit AG-1 to the 3 December 2025 Garcia affidavit;

(3) as to the second ground of appeal, the impugned condition requires ATrades, if it is to continue trading, to fundamentally undertake an entirely new business in substitution for that carried on as at 24 November 2025. If that was the object of the imposition of the impugned condition, it is an unreasonable decision, and a use of the power to stay other than for the purpose for which it was conferred, which stated shortly is the presentation of status quo, pending a final hearing.

(4) each of the grounds of appeal raises a "serious issue for determination" on appeal, and there is a likelihood of damage to ATrades if the stay is not granted;

(5) the balance of convenience is to be considered having regard to the public interest. The effect of a refusal favours the grant of a stay. There is no compelling contrary consideration;

(6) the cancellation decisions relate to only the 19 transactions:

(a) for consumers nos 1 to 16, the relevant statements were taken on various dates between 2 September 2022 and 5 May 2023, and are, because of that delay, of minimal probative value or effect;

(b) for consumers nos 17, 18 and 20, the relevant statements were taken on 20, 25 and 28 August 2025, and do not establish a proper basis for the refusal of a stay;

(7) in the context of the number of jobs done by ATrades since 1 July 2023, something in excess of 30,000, the Secretary's case, taken at its highest, does not establish the "typicality" of the conduct asserted.

1. The Secretary relied upon the following written submissions:

(1) Secretary's Submissions dated 27 November 2025;

(2) Secretary's Supplementary Submissions dated 3 December 2025.

1. Counsel for the Secretary made oral submissions.
2. The Secretary in Secretary's Submissions dated 27 November 2025 refers to aspects of the background to the appeal and the stay continuation application, the applicable statutory provisions and applicable legal principles, and relevantly submits:

(1) if the cancellation decisions are stayed, there is a significant risk that ATrades and Mr Alha will continue to engage in the conduct the subject of the decisions. That conduct would, in all likelihood, cause unnecessary and unjustified loss and harm to customers. In those circumstances, there is an overwhelming public interest in refusing the stay. The public interest considerations outweigh any negative financial and reputational impact the decisions would have on their interests. They have failed to establish that the stay is appropriate to secure the effectiveness of the determination of the review application, or that the stay is desirable;

(2) the similarities in the complaints substantiated in the cancellation decisions are striking. They disclose a pattern of conduct over an extensive period of time. Many of the consumers who made complaints were vulnerable for reasons including their age or medical conditions;

(3) having regard to the system of conduct the subject of the cancellation decisions, as well as ATrades' and Mr Alha's attitude to the investigation and failure to acknowledge the harm caused to consumers, and the 121 further complaints received since 1 July 2025, there is a high likelihood that they will continue to engage in conduct that may cause significant harm or loss to consumers and employees if the decisions are stayed. There is an overwhelming public interest in not staying the decisions, so as to avoid the risk of them continuing to engage in ATrades' systematic improper approach to business and causing significant harm or loss to consumers and employees.

1. The Secretary in Secretary's Submissions dated 27 November 2025 summarises and sets out examples of 78 of the 121 complaints received by the Commission between 1 July 2025 and 24 November 2025 referred to in exhibit AG-1 to the 3 December 2025 Garcia affidavit, and relevantly submits:

(1) this conduct is remarkably similar to the conduct which was described in the 20 identified complaints set out in the 19 August 2025 and 8 September 2025 show cause notices. It tends to demonstrate that ATrades is engaging in widespread unconscionable conduct, and that overcharging and pressure on vulnerable customers is effectively part of its business model. These complaints indicate that the Secretary's attempts to take disciplinary action to date have not deterred ATrades and Mr Alha from continuing to engage in improper conduct that causes loss and harm to vulnerable customers;

(2) this is the rare case where the urgent need for protection of the public gives rise to an overwhelming public interest in refusing to stay the cancellation decisions, which outweighs the negative financial impact which those decisions will have on ATrades' and Mr Alha's interests.

1. Section 80(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) allows a party to proceedings in which the Tribunal makes an internally appealable decision, to appeal the decision to an Appeal Panel. An administrative review decision is an internally appealable decision: NCAT Act, s 32(1)(a) and (4). The stay decision was an administrative review decision under s 30(5) of the NCAT Act and is therefore appealable to an Appeal Panel.
2. Internal appeals against an internally appealable decision may be made in the case of an interlocutory decision of the Tribunal at first instance with the leave of the Appeal Panel: NCAT Act, s 80(2)(a).
3. The Appeal Panel in the exercise of its internal appeal jurisdiction has jurisdiction to make ancillary and interlocutory decisions: NCAT Act, s 32(2)(a). An interlocutory decision includes a decision made under legislation concerning the granting of a stay: NCAT Act, s 4(1), definition of "interlocutory decision", par (a).
4. Section 43 of the NCAT Act deals with the effect of pending general applications and appeals, and relevantly states:

43 Effect of pending general applications and appeals

(1) This section applies to the making or lodgment of any of the following (a pending general application or appeal) -

...

(c) an internal appeal.

...

(2) A pending general application or appeal does not affect the operation of the decision to which the application or appeal relates, or prevent the taking of action to implement the decision, unless the Tribunal makes an order staying or otherwise affecting the operation of the decision.

(3) The Tribunal may make such orders (whether with or without conditions) staying or otherwise affecting the operation of a decision to which a pending general application or appeal relates as it considers appropriate to secure the effectiveness of the determination of the application or appeal.

1. As the ATrades/Alha conditions refer to provisions of the Residential Tenancies Act 2010 (NSW) (RT Act) and the HB Act, it is convenient to set out or summarise them in order to evaluate their operation.

1. Section 62 of the RT Act contains definitions and includes the following definition of "urgent repairs":

In this Division -

...

urgent repairs means any work needed to repair any one or more of the following -

(a) a burst water service,

(b) an appliance, fitting or fixture that uses water or is used to supply water that is broken or not functioning properly, so that a substantial amount of water is being wasted,

(c) a blocked or broken lavatory system,

(d) a serious roof leak,

(e) a gas leak,

(f) a dangerous electrical fault,

(g) flooding or serious flood damage,

(h) serious storm or fire damage,

(i) a failure or breakdown of the gas, electricity or water supply to the residential premises,

(j) a failure or breakdown of any essential service on the residential premises for hot water, cooking, heating, cooling or laundering,

(k) any fault or damage that causes the residential premises to be unsafe or insecure,

(l) any other damage prescribed by the regulations,

but does not include work needed to repair premises that are owned by a person other than the landlord or a person having superior title (such as a head landlord) to the landlord.

1. There is no other damage prescribed by the Residential Tenancies Regulation 2019 (NSW) for the purposes of par (l) of the definition of "urgent repairs" in s 62 of the RT Act.

1. Part 2 Div 1 (ss 4-11) contains provisions dealing with the regulation of contracting for residential building work and specialist work. Section 7BA(1A) when read with cl 7 of the Home Building Regulation 2014 (NSW) (HB Regulation) confers on a person who contracts with the holder of a contractor licence for residential building work a right of rescission of a contract during the cooling-off period of five clear business days after the person is given a copy of the signed contract or becomes aware that he or she is entitled to be given a copy of the signed contract where the contract price or the reasonable market cost of the labour and materials involved exceeds $20,000 inclusive of GST.
2. Part 6 Div 2 (ss 92-98) contains provisions dealing with insurance. Section 92(1) and (3) when read with cl 53 of the HB Regulation prohibit a person from doing residential building work under a contract unless a complying contract of insurance is in force in relation to that work and a complying certificate of insurance has been provided to the other party (or one of the other parties) to the contract where the contract price or the reasonable market cost of the labour and materials involved exceeds $20,000 inclusive of GST.
3. Clause 1(1) of Sch 1 contains definitions for the purposes of the HB Act and includes the following definition of "plumbing and drainage work":

"plumbing and drainage work means -

(a) plumbing and drainage work within the meaning of the Plumbing and Drainage Act 2011, or

(b) any plumbing work or drainage work that, because of a relevant law, can be done lawfully only by the holder of an endorsed contractor licence, a supervisor or a tradesperson certificate or some other specified person, or

(c) water plumbing work comprising the construction of or work on a fire suppression system that is connected or to be connected to a water main."

The granting of a stay pending the determination of an appeal

1. Prior to 2014, the New South Wales Court of Appeal explained the principles applicable to the granting of a stay pending appeal in a number of judgments including New South Wales Bar Association v Stevens [2003] NSWCA 95; (2003) 52 ATR 602 (Stevens).
2. In Stevens, the New South Wales Court of Appeal considered an appeal against the granting of a stay of a decision of the Association cancelling the practising certificate of a barrister. Spigelman CJ (with Meagher JA and Sheller JA agreeing):

(1) made the following observations with respect to the public interest at [91] and [104]:

"[91] The relevant authorities indicate that the protection of the public is a matter entitled to significant weight on an application for a stay once it appears that a professional person has acted improperly to a substantial degree."

"[104] It is clear from this consideration of the authorities that each case must turn on its specific facts. The range of relevant considerations is broad. Nevertheless the fact that the issues involved in professional rights to practice concern the protection of the public, means that the public interest is always entitled to significant weight."

(2) noted at [105] that the decision under appeal was an interlocutory decision on a matter of practice and procedure, the Court would rarely give leave to appeal in such matters, and the Court must be convinced that the first instance judge committed an error of principle in the exercise of his discretion;

(3) made the following observations with respect to the status quo and the balance of convenience at [114]-[115]:

"[114] His Honour referred to the "balance of convenience". The injury to the public arising from the continuation in practice of a person unfit to do so is not comparable to the detriment to the practitioner from being prevented from practising. These matters are not measurable on the same scale, although they are both entitled to weight. Terminology such as "balance of convenience" is not apt. It is likely to lead to failure to consider the public interest.

[115] Similarly, his Honour's reference to preserving the status quo suggests an approach applicable to balancing private interests. Where the public interest is engaged, the status quo has no particular significance. There is no presumption in favour of the continuation of the status quo in such a context."

(4) held at [144] that the discretion should not be exercised in favour of the practitioner in all the circumstances, even on the assumption that he has a reasonable case on appeal. The protection of the public and the maintenance of the reputation of the legal profession are entitled to determinative weight in the exercise of the discretion to grant a stay.

1. In Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37 at [9], the Appeal Panel cited prior judgments of the New South Wales Court of Appeal and set out the following principles relating to granting a stay under s 43(3) of the NCAT Act:

"As a result of the use of "may" in s 43(3) of the Act, the Tribunal has a discretion whether or not to grant a stay. That discretion must be exercised judicially and general principles which apply in relation to the exercise of that discretion can be derived from the terms of s 43(3) itself. Additional guidance can be obtained from the considerations applied by the Courts in deciding whether or not to grant a stay pending an appeal. The applicable principles can be summarised as follows:

(1) Generally a successful party is entitled to the benefit of the decision or orders that the party has obtained at first instance, but a stay may be granted where the appellant has demonstrated an appropriate case to warrant the exercise of discretion in its favour.

(2) In practical effect the onus is on an applicant for a stay to make out a case that it is appropriate for the court to make such an order.

(3) The mere lodgment of the notice of appeal is insufficient, of itself, to demonstrate that it is an appropriate case to warrant the granting of a stay.

(4) An order staying the operation of a decision or orders will generally be appropriate where such an order is reasonably necessary to secure the effectiveness of the appeal. This is similar to, if not the same as, the considerations applied by the Courts that where there is a risk that an appeal will prove abortive if the appellant succeeds and a stay is not granted or where unless a stay is granted an appeal will be rendered nugatory, the discretion should generally be exercised in favour of granting a stay.

(5) The Tribunal may also take into account the strength or otherwise of the case of the party seeking the stay. This consideration may be particularly relevant when it is plain that an appeal, which does not require leave, has been lodged without any real prospects of success and simply in the hope of gaining a respite against immediate execution of the decision.

(6) The Tribunal's power to grant a stay includes a power to make such an order subject to such conditions as the Tribunal specifies.

(7) In exercising the discretion the Tribunal will also weigh the balance of convenience and the competing rights of the parties and may impose appropriate conditions so as to achieve a result that is fair to all parties.

(8) Finally, the overriding principle in an application for a stay is to ask what the interests of justice require." (citations omitted)

1. In Bronze Wing Ammunition Pty Ltd v SafeWork NSW [2016] NSWSC 1075 (Bronze Wing Ammunition) the New South Wales Supreme Court considered an application to stay the decisions of the predecessor Authority to cancel Bronze Wing's licence to manufacture, its licence to import and export, and its responsible person's security clearance under the Explosives Act 2003 (NSW). Garling J at [38]-[39] held that the balance of convenience strongly favoured the grant of a stay where an order cancelling licences is a significant one affecting the business of the applicants, there was no immediate danger to the public in granting a stay, and no risk of any ongoing breaches by the applicants of the conditions of their licence. In those circumstances, it was unnecessary to determine the question of whether the failure to grant a stay would render the appeal nugatory.
2. Recently in Kearney v Amirbeaggi (No 3) [2025] NSWCA 234 at [22], the New South Wales Court of Appeal (Free JA) summarised the principles governing the granting of a stay pending appeal:

"In Michael Hill Jeweller (Australia) Pty Ltd v Gispac Pty Ltd [2024] NSWCA 128 at [5] Payne JA explained that the principles governing the granting of a stay pending appeal are analogous to those governing the grant of interlocutory relief before trial. A party applying for a stay must show that the appeal raises serious issues for determination and that there is a real risk that the appellant will suffer prejudice or damage if the stay is not granted. If those matters are established, it becomes necessary to consider the balance of convenience and the competing rights of the parties. The absence of arguable grounds of appeal is likely to be determinative against a stay application: see Di Liristi v Matautia Developments Pty Ltd [2021] NSWCA 163 at [5]."

1. I am satisfied that the principles explained in Kearney v Amirbeaggi (No 3) at [22] apply equally to the exercise by the Appeal Panel of the power to grant a stay of a decision pending an appeal conferred by s 43(2) and (3) of the NCAT Act.

1. In Houda v Seraphim [2025] NSWCATAP 135 at [32]- [35], the Appeal Panel summarised the applicable principles in determining whether to grant leave against an interlocutory decision:

"[32] Leave to appeal should only be granted when there are substantial reasons to warrant leave being granted. These reasons include the presence of an error of principle in the decision under appeal, resulting in substantial injustice. For leave to be granted, the decision under appeal must generally be attended with sufficient doubt to warrant its consideration on appeal (see e.g. Champion Homes Pty Ltd v Guirgus [2018] NSWCATAP 54 (Champion Homes) at [35]; FFO v Cumberland Council [2022] NSWCATAP 164 (FFO) at [9]; Bettington at [22]).

[33] As recently noted by an Appeal Panel in Commissioner for Fair Trading v PSMG Pty Ltd [2025] NSWCATAP 34, leave to appeal against an interlocutory decision is reserved for cases with special features warranting appellate review and such appeals are not to be brought as a matter of routine. While it is unnecessary and unwise to lay down rigid and exhaustive criteria, there is a general requirement that there be an error of principle and a risk of substantial injustice if leave was not granted, although these are not necessarily cumulative: [23]-[29].

[34] NCAT Appeal Panels have stated, in a number of decisions, that where an application for leave to appeal relates to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions: see e.g. Collins v Urban [2014] NSWCATAP 17 (Collins) at [84(3)] citing BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21]; Champion Homes at [35].

[35] The principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of the Appeal Panel, often quoting Collins. It is only if the decision is affected by sufficient doubt, to warrant its reconsideration on appeal, that leave will be granted. Usually, it is appropriate to grant leave where there is an issue of principle, a question of public importance or an injustice which is reasonably clear, and beyond what is merely arguable: Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28]. As explained in Collins at [84], it is not sufficient merely to show that the Tribunal below was arguably wrong or that there was a bona fide challenge to an issue of fact."

The determination of the stay continuation application

1. The parties accepted that the Appeal Panel has power to stay the impugned condition and impose different conditions pending the determination of the appeal.
2. I have approached the stay continuation application by considering the three matters referred to in Kearney v Amirbeaggi (No 3) at [22].

Whether the appeal raises serious issues for determination

1. As to the first ground of appeal (in par 2 of the notice of appeal), I note the absence of a transcript of the hearing and written reasons for the stay decision. There is disagreement between the parties as to the basis of the admission of the exhibit AG-1 into evidence. The only evidence of what happened at the hearing on 5 December 2025 is that of Mr Zhang in the 11 December 2025 Zhang affidavit at [10]-[11]. A different understanding is asserted by ATrades and Mr Alha in Submissions for the Applicants dated 5 December 2025. Even if I held that there was no evidence to support ATrades' and Mr Alha's contention as to the basis of the admission of the exhibit AG-1 into evidence, in the absence of written reasons for the stay decision it is impossible to determine what if any weight the Tribunal gave to this evidence in imposing the impugned condition.
2. As to the second ground of appeal (in par 3 of the notice of appeal), the imposition of the impugned condition does not appear to be unreasonable in view of the material in the executive summary of the cancellation decision relating to ATrades set out above. Where, as here, there is a question of the public interest, then as explained in Stevens at [115], the status quo has no particular significance. On the contrary, in the light of the unchallenged evidence of Mr Alha in the 8 December 2025 Alha affidavit it is arguable that the effect of the impugned condition is that ATrades will be required, if it is to continue trading, to fundamentally undertake an entirely new business in substitution for that carried on as at 24 November 2025.
3. I am satisfied that the contentions of ATrades and Mr Alha are arguable and are entitled to weight in the exercise of the discretion to continue the interim order. However, the contentions of the Secretary are also arguable and should not be ignored.

Whether there is a real risk that the appellant will suffer prejudice or damage if the stay is not continued

1. I accept the unchallenged evidence of Mr Alha in the 8 December 2025 Alha affidavit that ATrades will not be able to pay wages and superannuation after 5 December 2025 and that it in effect will have to cease trading. While the impugned condition does not prevent ATrades from trading, it is unrealistic to expect ATrades could reorient its business and secure work in a short period from entities such as builders, developers, strata managing agents and real estate agents when it has not done so for around three years. This evidence is sufficient to establish that there is a real risk that ATrades and Mr Alha will suffer prejudice or damage if the interim order is not continued.

Whether the balance of convenience favours the continuation of the interim order

1. Apart from the differences between the ATrades/Alha conditions and the Secretary's conditions, there is a substantial difference between the parties as to the significance of the findings in the cancellation decision relating to ATrades.
2. ATrades and Mr Alha submit that the Secretary's case does not establish the "typicality" of the conduct asserted because the 19 transactions in respect of which adverse findings were made occurred in the context of in excess of 30,000 jobs undertaken since 1 July 2023.
3. The Secretary referred to Australian Securities and Investments Commission v Union Standard International Group Pty Ltd (No 4) [2024] FCA 1481 (USIG (No 4)) at [1318] where Wigney J agreed with the following observations made by Beach J in relevantly similar circumstances in Australian Securities and Investments Commission v AGM Markets Pty Ltd (in liq) and Others (No 3) (2020) 275 FCR 57; [2020] FCA 208 (AGM Markets (No 3)) at [387]:

"How is a pattern of behaviour to be proved? ... A judge may be prepared to so extrapolate based upon a small number of instances where the following two related conditions are satisfied. First, there is evidence that the instances are not anomalies but are natural and likely consequences of the respondent's conduct or system(s), that is, representative; of course the purity of random sampling may fortify this. Second, there is no evidence that the respondent's conduct or system(s) was designed not to produce but to avoid such instances. But it must be said that, ceteris paribus, the greater the individual differences of the instances, being differences that have real significance to the characterisation of unconscionability, the greater the number of instances that may be required to justify the extrapolation ..."

1. In view of the principles in AGM Markets (No 3) at [387] and USIG (No 4) at [1318], I am not satisfied that it arguable that the findings in the cancellation decision relating to ATrades were insufficient to warrant the cancellations decisions based on the following contentions:

(1) the relatively small sample is insufficient to prove a pattern;

(2) the lack of recency of the evidence relating to consumers nos 1 to 16 (with statements taken between 2 September 2022 and 5 May 2023) means that the evidence because of that delay is of minimal probative value or effect;

(3) the comparative recency of the evidence relating to only three customers, being consumers nos 17, 18 and 20 (with statements taken on 20, 25 and 28 August 2025), does not establish a proper basis for the refusal of a stay. I do not accept that the circumstances of this case are comparable to those in Bronze Wing Ammunition where there was no immediate danger to the public in granting a stay.

1. I am not satisfied that ATrades and Mr Alha have discharged their onus of establishing that the ATrades/Alha conditions provide a proper basis for the continuation of the interim order until the determination of the appeal because they are adequate to secure the protection of the public for the following reasons:

(1) as to condition 1, the exception for urgent repairs specified in s 62 of the RT Act is not apt because the scope of urgent repairs extends beyond plumbing and drainage work as defined in cl1(1) of Sch 1 of the HB Act. Even if the urgent repairs were confined to work constituting plumbing and drainage work, there will be no independent assessment of the reasonableness of the proposed work and the reasonableness of the amount proposed to be charged;

(2) as to conditions 1 to 3, the potential customers will not receive any warning or information as to the cancellation decision relating to ATrades in respect of the First Quote or the Second Quote or any subsequent quotes;

(3) as to condition 6, independent certification as to the quality and cost of works offers little protection to customers when the works have been completed. Further, customers will be required to have made full payment for the works prior to receiving the independent certificate. Moreover, this process for independent certification for works exceeding $20,000.00 will only apply to a small proportion of jobs undertaken by ATrades.

1. As ATrades and Mr Alha did not embrace the Secretary's conditions in the alternative to the ATrades/Alha conditions, I have decided not to stay the cancellations decision on the basis of the substitution of the Secretary's conditions for the impugned condition.

1. The Secretary correctly submitted that for ATrades and Mr Alha to be granted leave to appeal against the stay decision they would have to establish an error of the kind identified in House v R (1936) 55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan JJ); [1936] HCA 40, and even then would need to meet the high bar for decisions relating to practice and procedure. I am not satisfied that ATrades and Mr Alha have established an arguable case that the discretion of the Tribunal in making the stay decision miscarried. It follows that their application for the continuation of the interim order should be dismissed and the interim order made on 12 December 2025 should be discharged.
2. Even if I had been satisfied that ATrades and Mr Alha have a reasonable case on appeal, I would have found that the protection of the public is entitled to determinative weight in the exercise of the discretion whether to continue the interim order.

(1) The application of the appellants to continue the interim order staying condition 1 of the stay of the following decisions of the respondent made on 24 November 2025:

(a) the decision to cancel the contractor licence of the first appellant, and to permanently disqualify it from being the holder of any authority under the under the Home Building Act 1989 (NSW); and

(b) the decision to cancel the contractor licence of the second appellant, and to permanently disqualify him from being the holder of any authority, and to permanently disqualify him from being a member of a partnership, or an officer of a corporation that is a member of a partnership, that is the holder of an authority, and an officer of a corporation that is the holder of an authority, under the Home Building Act;

(2) The interim order made on 12 December 2025 is discharged.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Formatting corrected for order 1 on cover page and at paragraph 69(1).