Younis v Dayoub and Alkras Pty Ltd

1. The application was first heard by the Tribunal on 13 June 2024 with no appearance by the respondents. The Tribunal found that, on the information available, both respondents had been appropriately served and there was no reasonable explanation for their non-appearance, so the matter was heard in their absence. A money order was made against both respondents in the sum sought, $23,400.00.
2. The respondents subsequently applied to set aside the orders on the basis that they had a reasonable explanation for their non-appearance. Their application for a re-hearing was granted.
3. The matter was re-heard on 22 October 2024 by a differently constituted Tribunal. On the re-hearing, the application was defended. The Tribunal found that the applicant (now appellant) had not proven his case on the balance of probabilities and that there was insufficient evidence to make the orders sought. The application was therefore dismissed.
4. The Tribunal relevantly found that:

(1) It had jurisdiction to deal with the matter.

(2) In or about May 2022 Dr Younis received a quotation from Alkras Pty Ltd for frameless glass balustrade, privacy screen, swing gate, pool equipment, cover, and pool glass fencing. The quote was for $32,813. After receipt of the quotation, additional works were requested. There was a verbal quotation of approximately $27,000 for the construction of a staircase and further quotation of approximately $45,000 for the staircase railing.

(3) Most of Dr Younis' discussions regarding the metal staircase were conducted with Mr Dayoub.

(4) The parties came to an agreement that there would be a lower price charged for cash.

(5) Payments of at least $101,000 were made by Dr Younis to Mr Dayoub and Alkras Pty Ltd. There was no written contract and no receipts were given for those payments.

(6) The Tribunal was not satisfied that Dr Younis had established that the sum of $4,700.00 was overpaid. The Member stated that:

"Dr Younis' recollection of the prices for the job or various aspects of the job was vague and he was unsure at times of what the quoted price was, given that the transactions occurred in 2022. That is not surprising. However his task is made more difficult...by the fact that there was no written contract and no receipts were given."

(7) The Tribunal was not satisfied that sections of the railing of the staircase required repair. The Member stated that:

"In the absence of an expert's report, it is difficult for the Tribunal to come to any conclusion that the railing has any defect in it."

(8) As to allegedly defective painting of the railing, the Member stated:

"Dr Younis and his wife were shown a sample of the finish. That sample, unfortunately, is no longer available. Dr Younis says that the paint finish was not in accordance with the sample. Mr Dayoub disputes this and says that the paint finish which Dr Younis now wants is completely different to that which he was instructed.

Once again, it is difficult for me to come to any conclusion because the evidence just doesn't persuade me one way or another. As I said, there is no expert report in this case. There's no copy of the sample and yes, I have Dr Younis' testimony that it is not in accordance with the sample. It's not up to the requisite standard and he is unhappy with the final product. But as against that, I have Mr Dayoub's evidence and quite simply I'm not satisfied on the balance of probability that Dr Younis has proved his case to the requisite standard".

1. The Tribunal therefore dismissed the application.

1. On 19 November 2024 the appellant lodged an appeal against the dismissal of the application on the re-hearing of the matter.
2. The appellant sought the following orders:

(1) That the orders made by the Tribunal on 22 October 2024 be set aside and the matter be re-heard.

(2) That Mr Arzeb, Site Manager, be added as a respondent.

1. The appeal was first listed on 10 December 2024 for directions and the callover of the matter was adjourned to 15 January 2025. On that date directions were made for the filing of documents and the matter was listed for hearing on 31 March 2025. Documents were filed by both parties and both parties appeared at the hearing of the appeal.

1. The bases upon which appeals from decisions of the Tribunal may be brought are identified in s 80 of the NCAT Act. Section 80 of the NCAT Act states that an appeal may be made "as of right on any question of law, or with leave of the Appeal Panel, on any other grounds" (s 80(2)(b) of the NCAT Act).

1. The meaning of a "question of law" was discussed in detail by the Appeal Panel in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (Cusumano) at [25]-[40]. A pure question of law does not depend on the facts found, and the question of law must be, self-evidently, a question of law and not depend on the answer. A question of law is distinct from a mixed question of fact and law, for which leave to appeal is required. Examples of questions of law include the matters set out in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13] and _Cusumano a_t [32]. However, the categories of question of law are not closed. As was stated at Cusumano at [37]-[39]:

"What constitutes a question of law is vexed and context dependent in the sense that the distinction between matters of fact and of law may turn on the circumstances in which the question arises: Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416 at [33(4)], citing Thomas and Naaz [2023] NSWCA 40 at [52] and Da Costa v The Queen [1968] HCA 51; (1968) 118 CLR 186 at 194; [1968] HCA 51.

For instance, a ground of appeal that raises the question whether there were adequate reasons may constitute an attack on the merits which would not raise a pure question of law. On the other hand, it may be a contention that the decision is unreasonable in the requisite sense or that the Tribunal failed to exercise the jurisdiction, which would likely raise a question of law: see the exposition of this issue in Wollondilly at [28]-[32]. Care must in any event be taken. As has been clarified by amendment to the NCAT Act since Prendergast was decided, the Tribunal is not required to give reasons for all decisions it makes: NCAT Act, s 62(2A; see too: New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 at [53]-[54], [109]-[114].

Therefore, discernment and care must be taken to ensure the grounds relied upon by the appellant, properly understood, raise questions of law and arise in the proceedings; or whether leave is required."

1. We have engaged in the process of considering whether there is a question of law that has in fact been raised (see also Cominos v Di Rico [2016] NSWCATAP 5 at [13]). We consider that the only question of law arguably raised by the appellant is whether the decision was so unreasonable that no reasonable decision maker would make it.

1. Clause 12 of Sch 4 of the NCAT Act provides that, the Appeal Panel may grant leave to appeal a decision from the Consumer and Commercial Division (CCD) pursuant to s 80(2)(b) of the NCAT Act, only if it is 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).

1. The Appeal Panel considered the meaning of a substantial miscarriage of justice for the purposes of cl 12 of Sch 4 of the NCAT Act in Collins v Urban [2014] NSWCATAP 17 at [76] stating that a substantial miscarriage of justice 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."

1. The principles to be applied by an Appeal Panel in determining whether leave to appeal should be granted are well settled. In Collins v Urban the Appeal Panel concluded at [84] that:

"(1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];

(2) Ordinarily it is appropriate to grant leave to appeal, only in matters that involve:

(b) questions of public importance or matters of administration or policy which might have general application; or

(c) 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; or

(d) a factual error that was unreasonably arrived at and clearly mistaken; or

(e) 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."

1. It is important to note that an appeal is not an opportunity for the losing party to rerun their case (Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]).

1. In deciding the appeal, we have had regard to the following:

(1) The Notice of Appeal and submissions of the appellant lodged on 19 November 2024;

(2) The Reply to Appeal and submissions of the respondent lodged on 26 February 2025;

(3) Documents and submissions lodged by the appellant on 19 March 2025;

(4) Transcript of re-hearing lodged by the appellant on 27 March 2025; and

(5) The oral submissions of the parties at the hearing of the appeal.

1. The Notice of Appeal was lodged on 19 November 2024, which is within the 28 day time period for lodgement specified in cl 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) (the NCAT Rules).

1. The grounds of appeal specified in the Notice of Appeal are, in substance:

(1) That the Tribunal paid insufficient regard to the findings of the Member who had first heard the matter, when it was undefended.

(2) That Mr Dayoub's credibility and evidence was accepted too readily.

(3) That the appellant was not given the products he was promised, and they were not to Australian Standards.

(4) That the Site Manager, Mr Mohammad Arzeb Hayat (Mr Arzeb), had been summonsed to appear as a witness before the Tribunal, had wrongfully failed to appear and ought now to be joined as a respondent to the claim.

(5) The front door, footsteps of the staircase and protective glass surrounds of the pool had been removed in order to extort an overpayment of $4,700.00.

(6) That videos the appellant provided to the Tribunal were not viewed by the Member.

1. In relation to ground 4, Mr Arzeb Director of the Ozark Group which had supervised the entire project, had been summoned to give evidence at the re-hearing by the appellant. Mr Arzeb responded by email that the summons was not properly served as required by s 17 of the NCAT Act and r 33.3 of the Uniform Civil Procedure Rules 2005 (NSW), in that it was not served personally on him. He also argued that he had been given insufficient notice of the Summons and demanded "conduct money", his "reasonable daily rate for attendance" of $1,000 and, as that amount had not been provided, he stated that he was not obliged to attend the hearing.

(1) The works were of high-quality workmanship and the finish of the metal balustrades, staircase handrails and doors complied with Australian Standards.

(2) The hand-applied gold finish has inherent minor variations typical of that finish and this was understood and accepted by Dr Younis before it was applied, in accordance with the sample provided to Dr Younis.

(3) The verbal agreement lacked detailed written specifications.

(4) There was no contractual agreement between Mr Dayoub, Alkras Pty Ltd and Dr Younis. Dr Younis contracted with Ozark Pty Ltd, which engaged Ausmetal Holdings Pty Ltd initially and, after it went into liquidation, Mr Dayoub as a subcontractor, to carry out specific tasks, primarily metalwork and painting.

1. None of the grounds of appeal, as identified and considered separately, in our view raises a question of law. It is convenient to consider first each ground of appeal separately and then to consider the question of law which we consider is arguably raised in substance by the grounds of appeal collectively, namely whether the Tribunal's decision was so unreasonable that no reasonable decision maker would make it.

1. The Tribunal is permitted to reinstate proceedings dismissed under s 55(1)(c) of the NCAT Act "if the Tribunal considers there is a reasonable explanation" for previous failure to appear". That is what occurred in this case.
2. On a re-hearing of a matter, the decision of the Tribunal previously made, has been "set aside" as if it did not exist. The Member hearing the matter on a re-hearing is required to consider afresh all matters in dispute. That Member is not required to consider or give weight to the decision of the Member who previously heard the matter.
3. The initial hearing of the matter in this case was undefended, so the Member at that hearing could be more easily satisfied of the matters sought to be proven where there was no contradictor. On the re-hearing, most matters in dispute were heavily contested and there was evidence given by both parties. In those circumstances, it is quite possible that the result of a hearing may be different from the result on the initial hearing, as it was in this case.

1. As was stated by the Member during the re-hearing, the appellant was required to prove his case "on the balance of probabilities". In this case there was no written contract, no receipts, no sample and no expert report by a person with relevant skills, qualifications and experience. Each of these may have assisted the Tribunal in determining whether, and if so, the extent to which the work fell short of Australian Standards.
2. Where one party presents evidence of what occurred and another gives evidence and each gives a different version of events, the evidence becomes "word against word" and may not have the necessary degree of persuasion to convince the Tribunal that the allegations made have been proven "on the balance of probabilities" as is required to succeed in an application.
3. How the Tribunal weighs the evidence of one party against the other is a matter for the individual decision-maker, providing the decision is made according to law. In this case the Member stated that, in his view, at times Dr Younis' evidence was "vague" and he lacked the support that a written contract, receipts, a sample and expert report could have provided. On the evidence before the Tribunal that was a finding open to the Member, according to law.

1. The paint sample provided to Dr Younis prior to painting the balustrade was not available by the time of hearing, so it was understandable that the Tribunal did not conclude that the painting finish was inadequate, especially as the photographs of the balustrade that were in evidence depicted it as elegant and attractive, at least to a layperson without qualifications. Had there been a sample and/or an expert report on the matter, there may have been a greater prospect of Dr Younis persuading the Tribunal of his point of view. On the evidence available, the Tribunal was entitled to find that poor painting or workmanship had not been established "on the balance of probabilities".
2. There were in evidence certificates by Hills Certifiers, signed by Mr El Najjar, stating that the works complied with relevant Australian Standards. It was reasonable for the Tribunal to take those into account in considering whether the works complied with Australian Standards. There was no expert evidence that the works did not comply with Australian Standards. We therefore see no error in The Tribunal finding as it did.

1. The Summons to appear was served by email. There is no evidence that the person summonsed had agreed to receive the Summons electronically.
2. The Summons ought to have been served on the person against whom the summons was issued, in accordance with the r 13 of the NCAT Rules, by posting a copy to the business or residential address of the person or by leaving it addressed to the person at the person's residential or business address, unless the person had consented to receive the documents electronically. Personal service is not required.
3. A Summons should be served at least 5 working days before the appearance is required. It must be accompanied by conduct money, that is, a sum sufficient to meet the reasonable travel expenses of a person attending the Tribunal to comply with the summons. These matters are set out in the NCAT Rules and in NCAT Procedural Direction 1 "Service and Giving Notice" and NCAT Procedural Direction 2 "Summonses".
4. The requirements for the service of a Summons were not met in this case because it was served by email without the prior consent of the recipient, without conduct money. The Summons could therefore not have been enforced.
5. We see no basis upon which it would be appropriate to join Mr Arzeb as a party to the appeal.

1. The appellant argued that the front door, steps and other panels had been removed to force him to pay $4,700.00 additional to the fee that had been agreed. There was no written contract and Mr Dayoub gave evidence of a plausible reason for the items to have been uplifted for a short period, namely that it had been necessary to briefly uplift those items to deal with defects.
2. Weighing these matters, it was open to the Tribunal to find that the appellant had not met the standard of proof required in order to establish an overpayment. We see no error in the conclusion reached by the Tribunal on this issue.

1. The transcript does not indicate that the Member viewed the video clips. However, in the absence of an expert report or evidence from a person qualified and experienced enough to say that there were defects in the workmanship and in light of the Certificates of satisfactory completion, we are not satisfied that the video clips would have made a material difference to the result of this application.

The question of law arguably raised: unreasonableness

1. For the reasons set out above, in relation to each ground of appeal considered separately, we are not satisfied that there are grounds to grant leave to appeal on any of the bases set out in Collins v Urban at [84]. Moreover, considered collectively we do not consider that the Tribunal's decision was so unreasonable that no reasonable decision maker would make it. On the contrary: we consider that there was ample justification for the Tribunal to reach the conclusion which it did. There was no error of law.

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.