Elmaadawy v Decent Designs Pty Ltd

NCAT Appeal Panel|2024-12-02

REASONS FOR DECISION

This is an appeal from orders made regarding two applications under the Home Building Act 1989 (NSW) (HBA).
The appellant (Mr Elmaadawy) is a homeowner, who, together with his wife, engaged the respondent (the Builder) to carry out building work.
On 7 December 2023, Mr Elmaadawy lodged an application in the Tribunal claiming $30,000 for incomplete work and defects. On 18 January 2024 Decent Designs lodged an application claiming $43,202 for an unpaid invoice for work done (this amount was subsequently amended).
On 1 March 2024, Senior Member Goldstein heard both of those applications.
On 6 August 2024, Mr Elmaadawy's application was dismissed. The Builder's application was allowed in part, and Mr Elmaadawy was ordered to pay $46,561.40 to the Builder immediately. Mr Elmaadawy lodged his Notice of Appeal the same day.
For the reasons set out below we have decided to dismiss the appeal.

Tribunal's decision

In the Tribunal below, each of the two claims were dealt with separately. It was noted at the outset there was a lack of evidence in support of the respective cases. Other than one short affidavit for Mr Elmaadawy, there were no other statements. The Tribunal noted that there was evidence about interactions between the parties and all the disputed events but that the reasons were limited to what was necessary to resolve the claims.
The Tribunal commenced by identifying the contracts and the scope of work covered.
In relation to Mr Elmaadawy's claim that there was defective work, the Tribunal was not satisfied on the evidence, that the work claimed to be defective was in fact defective. The Tribunal noted that Mr Elmaadawy did not have any training or expertise to identify defective work; that there was an absence of evidence from a licensed builder or an expert on the nature of the purported defects and the nature and amount of incomplete work. The Tribunal declined to rely on photographs that were not explained.
Numerous factual findings were made, based on all of the evidence before the Tribunal, including that the works did not reach practical completion because the builder validly suspended the contract before completion, rather than because it was defective or in breach of the contract.
Ultimately, the Tribunal was not satisfied that Mr Elmaadawy had discharged his onus of proving that the Builder had carried out defective work.
As for the claim that there was incomplete work, this was in respect of sliding doors, the upstairs bathroom, kitchen, entrance, downstairs bathroom and glass balustrade. Again, the Tribunal noted there was no evidence (other than Mr Elmaadawy's assertion) of the amount of incomplete work or how much it would cost to complete.
Mr Elmaadawy said that about half of the work was not complete and that he had assessed that for himself at about 60% complete. In addition to the absence of evidence from a suitably qualified person on this issue, the Tribunal also noted there were inconsistencies with Mr Elmaadawy's assertion and email correspondence on 30 October 2023 where he had indicated that the value of the incomplete work was about $10,000 to $12,000, and further, at the hearing, he contended the work was only 50% complete without any explanation for the difference.
Consequently, because of the insufficiency of evidence, the Tribunal was not satisfied that the builder had breached the contract by carrying out defective work or that the cost to rectify the defective and incomplete work was $30,000.
The Tribunal then turned to the Builder's claim starting with cl 14 of the contract which deals with defaults by the owner and then cl 15(b) of the General Conditions that indicates email service of notices is sufficient.
Mr Elmaadawy had alleged he had never received the Notice of Suspension. However, the Tribunal noted that Mr Elmaadawy had replied to the Builder's email attaching the Notice and commented on it in red marking. Consequently, the Tribunal rejected Mr Elmaadawy's assertion that he never received the Notice and made a finding that the Builder had served the Notice.
The Tribunal then noted again the lack of evidence in support of the Builder's claim but then proceeded to deal with each complaint in the Notice. Paragraphs 1-6 deal with the owner interfering with or preventing the Builder from carrying out the work. Paragraphs 7-9 deal with the owner causing independent subcontractors to attend on site without the Builder's consent.
Mr Elmaadawy contended that the Builder had said in email correspondence that the works would be practically complete by 20 October 2023 which is why he arranged to move in. The Tribunal carefully recounted the email correspondence between the parties, and the terms of the contract, and ultimately found that that Builder stated that the works would not be practically complete until 8 November but that he would try to finish earlier. The Tribunal found that the Builder had not told Mr Elmaadawy he could move in on 20 October but rather Mr Elmaadawy had told the Builder that was what he was going to do and that it was non-negotiable.
There was evidence from Mr Elmaadawy's neighbour in support which, except for acknowledging that he helped Mr Elmaadawy move furniture into the home on 18 and 21 October, was not accepted by the Tribunal as his evidence was considered unreliable.
There was also a factual dispute about whether the Builder asked Mr Elmaadawy to move out on 21 October. The Tribunal again carefully assessed the email correspondence and found no evidence that the builder had requested the owner to vacate on that date.
Consequently, the Tribunal was satisfied on the evidence that Mr Elmaadawy breached cl 2(b) and (c) of the contract as stated by the Builder in the Notice of Suspension. The Tribunal also found that the Builder was justified in issuing the Notice of Suspension on the basis that Mr Elmaadawy was interfering with the Builder carrying out the works. This was a sufficient basis for the Tribunal to then award payment of the outstanding invoice subject to a dispute about whether it had already been paid.
The Tribunal also considered the other grounds upon which the Builder issued the Notice of Suspension. As there was insufficient evidence, the Tribunal did not accept the Builder's assertion that the owner had caused independent contractors to attend the site without the Builder's consent, or that he was entitled to require Mr Elmaadawy to vacate the property.
As the Tribunal found a breach (as referred to in [27] above), the Tribunal then turned to the dispute about whether payment had already been made. Mr Elmaadawy had relied on his neighbour's evidence that Mr Camran (for the Builder) confirmed that he had received $103,000 for the works and only $11,250 remained to be paid. However, as previously noted, the Tribunal did not accept the evidence as he found the witness unreliable.
Mr Elmaadawy did not have any evidence to dispute the figures in the invoice that had issued for $46,561.40 (as amended) and consequently Mr Elmaadawy was ordered to pay the Builder that amount.

Materials before the Appeal Panel

Mr Elmaadawy provided all the documents that were before the Tribunal below to us on this appeal.
Mr Elmaadawy also asked for permission to rely on further evidence comprising: two invoices from Ikea dated 2 November 2023 (for $9581.00) and 7 November 2023 (for $628); an invoice from Project Electrical Group to Metod Kitchen Installations for electrical work dated 7 December 2023 ($1,116.50); a quote for work and Terms and Conditions of service for Metod Kitchen Installations. There was opposition to Mr Elmaadawy being granted permission to rely on new evidence which was said to be irrelevant but also there was no explanation why it was not provided to the Tribunal below.
We do not grant leave to Mr Elmaadawy to rely on the new evidence on appeal. First, we do not see how it is relevant to the issues we have to decide and second, there is no explanation about why this was not provided to the Tribunal at first instance. It seems it has only been offered on appeal as the Tribunal below noted the absence of evidence about the cost of incomplete or defective work.
It is noted that on 25 September 2024, various orders were made timetabling certain steps leading up to the appeal. Those orders included an order to the effect that if Mr Elmaadawy relied on what happened at the hearing at first instance, then he was to provide a "typed transcript of the relevant parts of the hearing, together with the sound recording of the entire hearing". He did not provide any transcript or a copy of the audio from the hearing.

The scope and nature of internal appeals

An appeal to the Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
To succeed in an appeal, Mr Elmaadawy must demonstrate either an error on a question of law or that permission (that is, "leave") to appeal should be granted to bring the appeal: Civil and Administrative Tribunal Act 2013 (NSW), s 80(2) ("NCAT Act").
In Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [24]-[40], the Appeal Panel set out the principles concerning questions of law within s 80 of the NCAT Act. An appellant is required to identify a pure question of law which then becomes the subject matter of the appeal: Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan 7 Naylor Paramatta Trust [2020] NSWCA 62 at [4] and [11]; Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39 at [12, [14]; Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220.
The circumstances in which the Appeal Panel may grant leave to appeal from a decision made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Sch 4 of the NCAT Act.
The principles governing an application for leave to appeal under the NCAT Act are well established and repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17 (Collins v Urban). The Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
In Collins v Urban, the Appeal Panel stated at [76], that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act may have been suffered where: "... there was a 'significant possibility' or a 'chance which was fairly open' that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance."
Even if an appellant from a decision of the Consumer and Commercial Division requiring leave to appeal has satisfied the requirements of cl 12(1) of Sch 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act. The appellant must demonstrate something more than the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32].
In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. Issues of principles; 2. Questions of public importance or matters of administration or policy which might have general application; 3. An injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; 4. A factual error that was unreasonable arrived at and clearly mistaken; or 5. The Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
In respect of a self-represented non legally trained appellant, grounds of appeal should be considered generally (subject to procedural fairness considerations) to determine whether a question of law has been raised: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12]; Cominos v Di Rico [2016] NSWCATAP 5 at [13].

Notice of Appeal

In his Notice of Appeal, Mr Elmaadawy relied on two grounds: "1. In the applicant/Owner claim: (Failure to consider the attached evidence to the case submitted to the Tribunal senior member) 2.In the respondent's cross application (error of law) ... the decision is in contradict (sic) of the section 10 of the home building act 1989 which indicates an error of law application (error on a question of law)
Mr Elmaadawy also raised a technical error which he said was an error in the terms of the second order. He said that his wife was also a party to the Builder's claim and so the order should have been just made not just against him, but against him and his wife. The Builder's application is not included in the material before us. Even if it was, the error is not the type of error that constitutes a ground of appeal nor one we have jurisdiction to deal with. Rather, if it is an error, it is in the nature of a "slip" or typographical error which can only be remedied pursuant to s 63 of the NCAT Act (by Senior Member Goldstein or the President). Mr Elmaadawy will need to make an application to Senior Member Goldstein to consider the issue of any correction to the order.
The Notice of Appeal did not include an application for leave to appeal. Mr Elmaadawy asserted that the Appeal Panel had the right to determine whether or not leave was necessary if it considered it appropriate. Despite stating that he was not making an application for leave to appeal, he completed the parts of the Notice of Appeal addressing the grounds for leave: that there was a substantial miscarriage of justice because the decision was not fair and equitable or was against the weight of evidence. At the hearing we asked whether he was in fact seeking leave to appeal and he said that he if there was not a question of law.
When the substance of the purported grounds of appeal is fairly analysed, those grounds raise two questions of law. First, in respect of Mr Elmaadawy's application, whether the Tribunal failed to have regard to the evidence such that there was a denial of procedural fairness. Second, in respect of the Builder's application, whether the Tribunal misconstrued s 10 of the HBA.

Reply to Appeal

The Builder opposed both the grounds of appeal as well as the application for leave to appeal and to admit fresh evidence.

Ground 1: Was there a denial of procedural fairness?

Mr Elmaadawy's assertion that the Tribunal failed to consider evidence such that there was a denial of procedural fairness is unfounded.
The Tribunal very carefully had regard to all the evidence before it (although noted that the reasons did not engage with all the evidence about "off the book work" as not the subject of the claims). We do not ascertain any denial of procedural fairness.
Further, Mr Elmaadawy asserted that the Tribunal did not mention the evidence he gave under oath at the hearing; the fact that photographs were explained at the hearing; and that his wife also made statements under oath. However, despite being ordered to do, Mr Elmaadawy did not provide a copy of those parts of the transcript to us. Consequently, we are unable to assess the accuracy of those complaints.
Mr Elmaadawy also contented that as an employee of the Department of Customer Service, he was qualified to provide expert opinion about the quality of the work and that the Tribunal had wrongly found that there was no expert evidence. We reject this submission. There was no evidence before the Tribunal of Mr Elmaadawy's expertise, whether acquired by qualifications or experience. The Tribunal was correct to reject his expertise. Moreover, if he did have the expertise, the weight given to his evidence would have been affected by him being an expert in his own cause.
We reject this Ground of appeal.

Ground 2: Did the Tribunal misconstrue s 10 of the HBA?

This ground was misconceived and not explained by Mr Elmaadawy.
Section 10 of the HBA, which Mr Elmaadawy claims the Tribunal contradicts, is as follows: 10 Enforceability of contracts and other rights (1) A person who contracts to do any residential building work, or any specialist work, and who so contracts - (a) in contravention of section 4 (Unlicensed contracting), or (b) under a contract to which the requirements of section 7 apply that is not in writing or that does not have sufficient description of the work to which it relates (not being a contract entered into in the circumstances described in section 6(2)), or (c) in contravention of any other provision of this Act or the regulations that is prescribed for the purposes of this paragraph, is not entitled to damages or to enforce any other remedy in respect of a breach of the contract committed by any other party to the contract, and the contract is unenforceable by the person who contracted to do the work. However, the person is liable for damages and subject to any other remedy in respect of a breach of the contract committed by the person. (2), (3) (Repealed) (4) This section does not affect the liability of the person for an offence against a provision of or made under this or any other Act.
It is unclear to us how Mr Elmaadawy contends the Tribunal failed to apply or contradicted s 10. He says the "off the book" work should have somehow formed part of the Tribunal's consideration, but he does not explain how. Moreover, it did not form part of the Builder's original application which this ground of appeal specifically relates to. This complaint is nothing more than a submission he could have made in the Tribunal below but did not.
Mr Elmaadawy's submissions, both in writing and orally, in respect of the appeal against the orders made in the Builder's claim, were directed to impermissibly challenging the factual findings made by the Tribunal. They reflect his own dissatisfaction with the conclusions reached by the Tribunal. He also sought to rely on the invoices from Ikea and Metod Kitchen Installations to challenge the veracity of Tribunal's finding that it was satisfied the amount owing and to be paid was $46,561.40, and to support his very serious allegation that the Builder was committing fraud by asserting that the amount was due.
These invoices were never provided to the Tribunal below and no explanation is provided as to why that was not done. In any event, as noted above, we have not given Mr Elmaadawy permission to rely on this new evidence on the appeal.
Further, Mr Elmaadawy again relied on what happened at the hearing below to support this ground of appeal, but did not provide us with a copy of the transcript.
This ground of appeal is entirely hopeless and we reject it.

Conclusion on grounds of appeal

We have rejected both grounds of appeal and consequently we dismiss Mr Elmaadawy's appeal.
As the appeal raised questions of law, leave to appeal is not required. However, we note that even if leave had been required, we would not have granted it. There was not a substantial miscarriage of justice in the orders made by the Tribunal below. It was entirely fair and reasonable for the Tribunal to reach the conclusions it did in the absence of evidence to the contrary. Mr Elmaadawy had an onus of proof which he did not meet. The decision was not against the weight of evidence - it was a result of the absence of evidence which is why the Tribunal warned against parties not obtaining advice and assistance in matters such as this.

Further stay application

When Mr Elmaadawy lodged his Notice of Appeal, he also lodged an application for a stay pending determination of the appeal. That application was listed for determination before Principal Member Blake on 8 November 2024 (first stay application). Ultimately, Mr Elmaadawy's application for a stay was dismissed by Principal Member Blake.
On 17 January 2025, while we were still reserved on the appeal from Senior Member Goldstein's orders, Mr Elmaadawy made a further application for a stay pending outcome of the appeal (second stay application). The basis for the second stay application was said to be his inability to meet the judgment debt because of his financial circumstances. He relied on a certificate of service with the Department of Customer Service which showed that his employment had ended on 11 July 2024 and a Centrelink payment summary showing that he was receiving payments.
We made directions for each party to file submissions and any material upon which they relied by 31 January 2025. Mr Elmaadawy made no submissions and filed no further evidence. The Builder made a submission as to why a stay should not be granted including that Mr Elmaadawy's first stay application had already been refused and he was just trying to have another attempt to get the orders he wanted.
On 10 February 2025, we made orders dismissing the second stay application and advised that we would provide reasons for our decision at the same time as the decision on the appeal. Our reasons for dismissing the second stay application are set out below.

Consideration of second stay application

In Quach v New South Wales Health Care Complaints Commission (No 3) [2016] NSWCA 284 McColl JA (Macfarlan JA and Campbell AJA agreeing) stated (citations omitted): "[63] It is a central and pervading tenet of the judicial system, often referred to as the principle of finality, that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances. Further, it is the court's duty to conserve its resources and ensure as far as possible that they are available for other litigants. The latter duty, in particular, finds reflection in the making of a Teoh Order. However the principle of finality is also significant in circumstances such as arise in this case, where Mr Quach has persisted in filing motions after the decision in Quach (No 1). [64] Multiple or successive proceedings which cause or are likely to cause improper vexation or oppression are a well-recognised category of conduct constituting abuse of process attracting the intervention of the courts. There are two aspects to this category of abuse of process: first, the aspect of vexation, oppression and unfairness to the other party to the litigation and, secondly, the fact that the matter complained of will bring the administration of justice into disrepute. Accordingly, a court is entitled to protect itself and its proceedings by making a Teoh Order in exercise of its inherent powers to prevent abuse of process in respect of a litigant who wishes to make multiple applications in pending or concluded proceedings. [65] The majority of cases of abuse of procedure arise from the institution of proceedings, but any procedural step in the course of proceedings that have been properly instituted is capable of being an abuse of the court's process. The power to deal with procedural abuse extends to the exclusion of particular issues which are frivolous and vexatious..."
In Nominal Defendant v Manning (2000) 50 NSWLR 139; [2000] NSWCA 80, Heydon JA at [72] stated: "…a litigant bringing a second application where circumstances have not changed on evidence available earlier is facing serious and self-created risks of an adverse exercise of judicial discretion. The real evils to which Hayne JA referred in D A Christie Pty Ltd v Baker [1996] 2 VR 582 at 602-3 - the risk of conflicting decisions, the unnecessary vexing of respondents, judge-shopping and the diminution of certainty in the conduct by respondents of their affairs - and others - damaging public confidence in the integrity of judicial decisions, expending time and money on litigation unnecessarily - are evils which each court in its individual discretion will rightly strain to avoid."
Recently, in Andrijic v Chief Commissioner of State Revenue (No 2) [2025] NSWSC 119, Hmelnitsky J, in determining to dismiss a second interlocutory application to stay a garnishee notice, stated: "[24] In Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 McLelland J said at 46 that: 'The private injustice and public undesirability of permitting the relitigation of matters already litigated once is recognised in a number of principles of law, notably the rules relating to res judicata and issue estoppel. The more flexible rules under the rubric of vexation and abuse of process, illustrated in such cases as Stephenson v Garrett [1891] 1 QB 677 and Hunter v Chief Constable West Midlands Police [1982] AC 529, and the restrictive provisions governing the adducing of further evidence on the hearing of an appeal even by way of rehearing: see, for example s 75A(8) of the Supreme Court Act 1970 (NSW). Interlocutory orders, of their very nature, create no res judicata or estoppel, and the court retains jurisdiction to set aside, vary or discharge an interlocutory order up to the time of the final disposition of the proceedings. However the general rationale of the principles last referred to applies even in the case of interlocutory orders. It would be conducive to great injustice and enormous waste of judicial time and resources if there were no limit on the power of a party to have any interlocutory application or order relitigated at will.' [25] His Honour was not thereby laying down a rule that an application once dismissed may never be revived. But in circumstances where it has not been shown that there are any new matters that have come to light since the application was first heard, or which could reasonably have been put before the court on the earlier occasion, there is a powerful reason to refuse to entertain such an application at all."
Mr Elmaadawy has effectively sought to relitigate precisely the same issue that was determined by Principal Member Blake on the first stay application. There are no new material circumstances on the second stay application that would cause us to consider that the interests of justice warrant a fresh consideration of the stay application. To the contrary, Mr Elmaadawy makes the same argument on the second stay application that he did on the first stay application - he cannot afford to pay the amount he was ordered to pay.
In our view, it is not in the interests of justice to re-litigate decided issues on the same subject matter, nor does it facilitate a quick and cheap resolution of the dispute: NCAT Act, s 36. The Builder has now had to address the stay application twice, which is oppressive. Further, it is a gross waste of the Tribunal's resources to have to divert its resources to re-litigation of an interlocutory application already determined in these circumstances: to entertain such an application would risk undermining the administration of justice. We find that Mr Elmaadawy's second stay application is an abuse of the Tribunal's processes.
It is for these reasons that we dismissed Mr Elmaadawy's second stay application.

Costs

We note that the amount in dispute is more than $30,000 and that rr 38A and 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) apply.
We see no reason why an award of costs should not be made in favour of Decent Designs. However, we will not determine this issue until the parties have an opportunity to provide submissions and evidence on the issue with the benefit of this decision. Consequently, we have made orders for the filing of any materials on costs.

orders

We order as follows: 1. The appeal is dismissed. 2. If any party wishes to make an application for a costs order, they are to lodge and serve a costs application, including submissions limited to two pages and any evidence in support, on or before 14 days from the date of this decision. 3. The respondent to the costs application is to lodge and serve any submissions limited to two pages and any evidence in reply on or before 28 days from the date of this decision. 4. The parties are to indicate in their submissions whether they consent to an order dispensing with an oral hearing of the costs application, and if they do not consent, submissions of no more than one page as to why an oral hearing should be conducted rather than the application being determined on the papers. If a hearing is not dispensed with, the parties will be advised of a date for the hearing of the application. 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. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 March 2025

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