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Hawach v A & a Building Services Pty Ltd

Hawach v A & a Building Services Pty Ltd

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Case Copied 8 October 2025 46 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Hawach v A & A Building Services Pty Ltd [2025] NSWSC 1174
Hearing dates: 25 September 2025
Date of orders: 08 October 2025
Decision date: 08 October 2025
Jurisdiction: Common Law
Before: Stern J
Decision:
(1) Leave to appeal is refused.
(2) The plaintiffs are to pay the defendant’s costs.

Catchwords:
BUILDING AND CONSTRUCTION – leave to appeal from determination of the New South Wales Civil and Administrative Tribunal Appeal Panel – alleged contract with defendant to carry out or to arrange to carry out a range of building works – where defendant assisted the plaintiffs by recommending subcontractors to them and allowed the plaintiffs to use the defendant’s trade account to order materials – whether the Appeal Panel constructively failed to exercise jurisdiction in finding there was no evidence that there was a term of a contract that the defendant would provide a waterproofing certificate – whether Appeal Panel erred in law in finding that the Home Building Act 1989 (NSW) did not preclude the defendant’s entitlement to set off – principles applicable to partly oral contracts
APPEAL – leave to appeal from determination of the New South Wales Civil and Administrative Tribunal Appeal Panel – scope and construction of contract – post-contractual conduct – whether the Appeal Panel erred in law by failing to correctly apply the principles in relation to post-contractual conduct

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW), s 83
Design and Building Practitioners Act 2020 (NSW), s 36
Home Building Act 1989 (NSW), ss 7, 10, 18B, 92

Cases Cited:
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1998) 5 BPR 11,110
Corcoran v Far [2020] NSWCA 140
Dokas v Gallagher (No 2) [2024] NSWCA 236
Hawach v A & A Building Services Pty Ltd [2023] NSWCATCD
Hawach v A & A Building Services Pty Ltd [2024] NSWCATAP 138
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
Lym International Pty Ltd v Marcolongo [2011] NSWCA 303
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Smits v Roach (2006) 227 CLR 423; [2006] HCA 36
O’Connor v O’Connor [2022] NSWCA 97
Re Dalco; Ex parte Dalco v Deputy Commissioner of Taxation [1986] FCA 357; 67 ALR 605
Targeted Property Investment Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416; 20 BPR 43,135
Tuck v White [2016] NSWCATAP 132

Texts Cited:
JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies, (5th ed, 2014, LexisNexis Butterworths)

Category: Principal judgment
Parties: Joseph Hawach (First Plaintiff)
Sarah Grace Reimers (Second Plaintiff)
A & A Building Services Pty Ltd (Defendant)
Representation:
Counsel:
JR Young, M Klooster (Plaintiffs)
C Wood SC, MJH Waters (Defendant)
Solicitors:
G&S Law Group (Plaintiffs)
A Plus Law Group (Defendant)

File Number(s): 2024/314985

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWSC 1174
Decision Date: 08 October 2025

CaseChat Overview and Summary

The case of Hawach v A & a Building Services Pty Ltd concerns a dispute over an alleged building contract. The plaintiffs, the Hawach family, claimed that the defendant, A & a Building Services Pty Ltd, had entered into a contract to carry out or arrange for building works. The plaintiffs alleged that the defendant had assisted them by recommending subcontractors and allowing them to use the defendant's trade account to order materials. The dispute was heard by the New South Wales Civil and Administrative Tribunal Appeal Panel, which found in favour of the defendant. The plaintiffs sought leave to appeal to the court, arguing that the Appeal Panel had failed to constructively exercise its jurisdiction and had erred in law.

The primary legal issues before the court were whether the Appeal Panel had constructively failed to exercise jurisdiction in finding that there was no evidence of a term in the contract that the defendant would provide a waterproofing certificate, and whether the Appeal Panel had erred in law in finding that the Home Building Act 1989 (NSW) did not preclude the defendant's entitlement to set off. The court was also required to consider the principles applicable to partly oral contracts and the effect of post-contractual conduct on the scope and construction of the contract.

In its decision, the court held that the Appeal Panel had not constructively failed to exercise its jurisdiction. The court found that there was no evidence to support the plaintiffs' claim that there was a term in the contract that the defendant would provide a waterproofing certificate. The court also held that the Appeal Panel had not erred in law in finding that the Home Building Act did not preclude the defendant's entitlement to set off. The court found that the principles applicable to partly oral contracts and post-contractual conduct did not support the plaintiffs' claim. The court held that the Appeal Panel's decision was correct and dismissed the appeal.

The court made no further orders.

Orders