Elmaadawy v Decent Designs Pty Ltd (No 2)

o Incurred for lodging the claim against the Applicant with NCAT (Appendix B).

o Necessary due to the Applicant's non-compliance with payment obligations.

2. Claim for Late Payment Fee on Invoice 240047:

o As confirmed in NCAT Order 6 Aug 2024, paragraph 96, the Invoice sum of $46,561.40 (Appendix C).

o Due on termination date (29 December 2023), and ordered to pay immediately as confirmed in NCAT Order 6 Aug 2024, paragraphs 101 (Appendix D).

o Late payment fee of 19% per annum applies as per Schedule 4 - vi of the agreed contract between the applicant and the respondent, provided in appellant's supporting documents, page 51, last paragraph (Appendix E).

o Order the Applicant to reimburse the application fee of $618.

o Order the Applicants to pay the late payment fee accrued on Invoice 240047.

o Order the Applicant to reimburse the Respondent for any debt collection fees should the Applicant not comply with the payment obligations.

o Grant any other relief the Tribunal deems just and appropriate."

1. Appendices C and D refer to earlier orders made by Senior Member Goldstein (NCAT File Nos 2023/00443594, 2024/00021374) which were the subject of the appeal decision.
2. On 18 March 2025, following publication of the appeal decision, the Builder lodged an application for miscellaneous matters seeking the following orders from the Tribunal:

"1. The respondent to pay the late payment fee of $5,356.47 (from 29 Dec 2023 to 6 Aug 2024).

2. The respondent to pay $6,336.00 for my costs incurred for attending hearings, including time spent at hearings and preparation (48 hours at $132 per hour - including GST).

3. The respondent to reimburse the application fee of $618.00."

1. The reasons for seeking the orders were as follows:

"1. The respondent failed to make the payment on time (29 Dec 2023 - on termination day), incurring a late payment fee (19% per annum) as per the agreed contract between Mahmoud Elmaadawy and Decent Design Pty Ltd. Evidence and related Orders are attached.

2. The applicant has attended multiple hearings (initial hearing, final hearing, first stay, second stay, appeal hearing) due to the respondent's failure to pay, and the respondent prolonging the proceedings unreasonably, resulting in loss of time and productivity of the applicant in his business; 6 hours for initial hearing, 18 hours for final hearing, 8 hears for the first stay, 6 hours for the second stay, and 10 hours for the appeal hearing.

3. Under Section 36 and Section 60 of the Civil and Administrative Tribunal Act 2013 (NSW), the applicant seeks pay order for these costs."

1. Mr Elmaadawy responded on 14 February 2025 and advised that the Builder had already sought enforcement of the orders through the Local Court, which had ordered Mr Elmaadawy to pay a total of $51,052.18. This consisted of the claim amount of $46,561.40, interest of $4264.78 (resulting from the orders made in the Tribunal below), and filing fees in the Local Court of $226.00.
2. On 18 March 2025, following the Builder's application for miscellaneous matters, Mr Elmaadawy provided a written response with accompanying evidence, which included a garnishee order from the Local Court, and correspondence with the Office of the Sheriff of NSW. The written response sought dismissal of the application for the following reasons:

"1. Late Filing of the Application: The application has been lodged outside the prescribed 14-day period, contrary to the directions previously issued by the Appeal Panel in relation to the appeal proceedings. As such, the application is out of time and should be dismissed pursuant to Section 50(1) of the Civil and Administrative Tribunal Act 2013 (NSW), which allows the Tribunal to dismiss applications that are frivolous, vexatious, or otherwise an abuse of process.

2. Claim for Late Payment Fees Lacks Legal Basis: The applicant seeks $5,356.47 for an alleged late payment fee covering a period prior to the issuance of the relevant order. This claim is irrelevant to the appeal order and lacks any legal foundation under the Tribunal's jurisdiction. The Tribunal's power to make costs orders is discretionary and should not extend to matters outside the scope of the original proceedings.

3. Unsubstantiated Claim for Legal Costs: The applicant claims $6,336.00 in legal costs without providing a breakdown or justification. Cross References in (Mahmoud Elmaadawy v Decent Design Pty Ltd), the Tribunal has previously determined that such claims must be substantiated. Further, under Section 60 of the Civil and Administrative Tribunal Act 2013 (NSW), costs are not automatically awarded, and parties are generally expected to bear their own legal expenses unless special circumstances exist, which have not been demonstrated in this application.

4. Claim for Application Fee ($618) is Not Relevant to the Appeal Order: The claim for reimbursement of an application fee is not relevant to the appeal order or the appeal process and should be dismissed as it falls outside the Tribunal's previous determinations.

5. Existing Enforcement Proceedings: The applicant has already obtained a Garnishee Order from Windsor Local Court, which includes all relevant interest and filing fees (Exhibit A). This enforcement action precludes the necessity of additional claims before NCAT.

6. Writ for Levy of Property Already Covers All Costs: The applicant has also sought and obtained a Writ for Levy of Property from Windsor Local Court, covering all legal costs, filing fees, and accrued interest (Exhibit B), amounting to a total of $53,484.67. Since the full amount has already been subject to enforcement proceedings, the present application is redundant and an abuse of process.

7. Full Compliance with Enforcement Orders: I have made full payment of $53,484.67 in accordance with the Writ for Levy of Property order (Exhibits C, D & E). Any further claims for additional amounts would amount to double recovery, which is not permissible under NSW law.

8. Severe Financial Hardship: The enforcement of any further costs would impose serious financial hardship upon me. I have already borrowed the necessary funds to comply with the enforcement order, and as a recipient of Centrelink benefits, any additional debt would render me unable to meet my financial obligations, potentially leading to bankruptcy (Exhibit F & G). Given the Tribunal's discretion under Section 36 of the Civil and Administrative Tribunal Act 2013 (NSW), I respectfully request that no further costs be imposed."

1. Mr Elmaadawy seeks dismissal of the application through an exercise of Tribunal powers granted under the Civil and Administrative Tribunal Act 2013 (NSW), ss 50 and 60 ("NCAT Act").

1. Section 50(2) of the NCAT Act provides that the Tribunal may dispense with a hearing where the issues to be determined can be adequately considered through written submissions and materials lodged with the Tribunal. The qualifications (see NCAT Act, s 50(3)) are that the parties have had opportunity to make submissions, and that such submissions must be taken into account.
2. Section 60 of the NCAT Act concerns costs in relation to matters that come before the Tribunal and relevantly provides that each party pays its' own costs unless there are special circumstances. Where "special circumstances" warrant an award of costs, however, the Tribunal has power to make such award, and a non-exhaustive list of circumstances are set out in the Act for the Tribunal's consideration: NCAT Act, s 60(3).
3. The general rule that parties are to pay their own costs (s 60(1)), "is designed to promote access to justice generally and to minimize the overall level of costs in tribunal proceedings as far as is practicable": see Choi v University of Technology Sydney [2020] NSWCATAP 18 at [41].
4. However, there are exceptions to s 60 provided under the Civil and Administrative Tribunal Rules 2014 (NSW), rr 38 and 38A, whereby a costs order in an appeal can be made whether or not there are special circumstances.
5. The rules provide as follows:

38 Costs in Consumer and Commercial Division of the Tribunal

(1) This rule applies to proceedings for the exercise of functions of the Tribunal that are allocated to the Consumer and Commercial Division of the Tribunal.

(2) Despite section 60 of the Act, the Tribunal may award costs in proceedings to which this rule applies even in the absence of special circumstances warranting such an award if -

(a) the amount claimed or in dispute in the proceedings is more than $10,000 but not more than $30,000 and the Tribunal has made an order under clause 10(2) of Schedule 4 to the Act in relation to the proceedings, or

(b) the amount claimed or in dispute in the proceedings is more than $30,000.

38A Costs in internal appeals

(1) This rule applies to an internal appeal lodged on or after 1 January 2016 if the provisions that applied to the determination of costs in the proceedings of the Tribunal at first instance (the first instance costs provisions) differed from those set out in section 60 of the Act because of the operation of -

(a) enabling legislation, or

(b) the Division Schedule for the Division of the Tribunal concerned, or

(c) the procedural rules.

(2) Despite section 60 of the Act, the Appeal Panel for an internal appeal to which this rule applies must apply the first instance costs provisions when deciding whether to award costs in relation to the internal appeal."

1. In Promina Design & Construction Pty Ltd v The Owners - Strata Plan No 97449 (No 4) [2023] NSWCATAP 338 at [10], the Tribunal considered the application of these rules:

"10. The amount in dispute in the proceedings in the Consumer and Commercial Division (now transferred to the District Court) exceeded $30,000. Therefore rule 38 is to be applied in relation to the appeal.

11. So applied, rule 38 provides that special circumstances are not necessary before an order may be made in respect of the costs of the appeal if the amount claimed or in dispute on the appeal exceeds $30,000: Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 (Tricare) at [37] - [42]."

1. As noted in Elmaadawy v Decent Designs Pty Ltd [2025] NSWCATAP 45, the amount in dispute here is greater than $30,000 and making a costs order in favour of Decent Designs would be appropriate subject to any successful application resisting an order. This means an order may be made for costs whether or not the Tribunal finds there are special circumstances in the matter.
2. In STAR Training Academy Pty Ltd v Commissioner of Police (No 2) [2022] NSWCATAP 98 at [50], the Appeal Panel set out the relevant principles that apply in regard to ordering costs in a lump sum as follows:

"1. The discretion is not confined and may be exercised whenever the circumstances warrant its exercise: Harrison & Anor v Schipp [2002] NSWCA 213; 54 NSWLR 738 per Giles JA at [21]-[22];

2. 'The power should only be exercised when the Court considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available.': ibid, at [22];

3. The power must be exercised judicially and only after giving the parties an adequate opportunity to make submissions. The Tribunal should be confident that the approach taken to estimate costs is fair, logical and reasonable: Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119; 135 ALR 160, von Doussa J;

4. The use of the power may be appropriate where the formal assessment would disadvantage the successful party because of the likely inability of the unsuccessful party to discharge the costs liability in any event: Harrison v Schipp; Sony Entertainment (Aust) Ltd v Smith [2005] FCA 228; (2005) 215 ALR 788 at [90], [194]-[195]; Hadid v Lenfest Communications Inc [2000] FCA 628;

5. The power may also be exercised where a party's conduct has unnecessarily contributed to the costs of the proceedings, especially where the costs incurred have been disproportionate to the result of the proceedings: Leary v Leary [1987] 1 WLR 72; [1987] 1 All ER 261; Sony Entertainment (Aust) Ltd v Smith; Microsoft v Jiang (2003) 58 IPR 445; [2003] FCA 101;

6. The assessment of any lump sum to be awarded must consider the complexity of the issues raised on the pleadings; the interlocutory processes; the preparation for final hearing and the final hearing: Smoothpool v Pickering [2001] SASC 131;

7. In the exercise of its discretion the Tribunal is not required to undertake a detailed examination of the kind that would be appropriate to taxation or formal costs assessment: Harrison v Schipp at 743; Hadid v Lenfest Communications Inc at [35]; Auspin Ltd v Australian Newsprint Mills Ltd [1999] FCA 673; (1999) 93 FCR 1 at 5; [1999] FCA 673;

8. A discount of the costs actually incurred or estimated may be applied, in order to take into account the contingencies that would be relevant in any formal costs assessment: Leary v Leary at [76] per Purchas LJ; Beach Petroleum NL v Johnson (No 2) at 123; Auspine Ltd v Australian Newsprint Mills Ltd at 164-165. A discount in the range of 10-30% is typically appropriate: Ross v Padget [2016] NSWSC 1851 at [16] and [21]; Fisher-Pollard by her tutor Fisher-Pollard v Fisher-Pollard [2018] NSWSC 807 at [38]). However, the appropriate order in each case will turn upon the evidence: Hamod v State of New South Wales [2011] NSWCA 375 at [813] per Beazley JA (Giles and Whealy JJA agreeing);

9. On the one hand the Tribunal must be astute to prevent prejudice to the respondents by overestimating the costs, and on the other hand must be astute not to cause an injustice to the successful party by an arbitrary 'fail safe' discount on the cost estimates submitted to the Court: Leary v Leary at 265;

10. Finality to litigation is in everyone's interest. In many cases that factor alone will weigh heavily on whether a lump sum costs order should be made: Edward Ted Lakis and Anor v Michael Victor Lardis and Anor (No 3) [2018] NSWSC 1296 at [57]; Lawcover Insurance Pty Ltd v Muriniti and Newell [2018] NSWSC 558 at [10];

11. Where a lump sum costs order is appropriate, the Tribunal should take a 'broad brush' approach to determining the lump sum: Harrison v Schipp;

12. Requiring the 'same or similar level of detail as in a formal costs assessment would defeat the purpose of the lump sum order'; Bechara (T/as Bechara and Co) v Bates [2016] NSWCA 294 at [14]."

1. We have decided to dispense with an oral hearing of this cost application. We are satisfied that the parties have had an opportunity to address the matters in this application and that it is of such nature that is appropriately dealt with on the papers.
2. We are satisfied that r 38(2)(b) applies to this appeal as the amount in dispute was clearly more than $30,000.
3. We have considered the submissions and evidence provided by the parties.
4. It is important to note that it was the order made by Senior Member Goldstein that was the subject of the appeal before us. That order was that Mr Elmaadawy pay the sum of $46,561.40 and interest on the unpaid invoices up until that date. No order was made for ongoing interest payments, nor did the Builder cross-appeal for future interest payments.
5. As noted above, the Builder lodged enforcement proceedings in the Local Court and on 28 January judgement was entered against Mr Elmaadawy. We note Mr Elmaadawy has made payment in full of that amount.
6. We have no jurisdiction (nor has the Builder pointed to any such jurisdiction) to order that the further amounts for late payment fees in the sum of $5,356.47 for the period 29 December 2023 to 6 August 2024, now be made. Accordingly, we do not make order 1 sought by the Builder.
7. The costs we are focused on are the costs of the proceedings as quantified in proposed order 2 and 3 of the costs application.
8. The Builder, who was self-represented at all times, has sought costs for loss of income at an asserted hourly rate of $132 per hour for 48 hours (including attending two hearings and two stay applications). While it is likely that 48 hours was spent by the Builder in attending the hearings and preparing for these hearings, a self-represented litigant is not entitled to claim as "costs", loss of income: see Profitability Consulting Pty Ltd v Thorpe [2018] NSWCATAP 41 at [23], [24]. There were no professional legal fees incurred by the Builder but there were disbursements which have been included as part of the claim for costs.
9. We are particularly mindful of the protracted nature of this litigation and consider that an order for a lump sum amount would achieve finality to the litigation, rather than another protracted period of disputation before a costs assessor about costs. Making a "broad brush" lump sum order would be the most efficient way of resolving the cost issue in circumstances of the quantum claimed by the Builder.
10. Consequently, we are satisfied that the costs of the proceedings should be awarded in favour of the Builder in a lump sum amount $618. This represents the disbursement incurred by the Builder being the filing fee in NCAT of $618.

(1) An oral hearing on costs is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

(2) Mr Elmaadawy is to pay costs to Decent Designs Pty Ltd in the sum of $618.

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.