Heaven Builders Pty Ltd v Moustafa

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Heaven Builders Pty Ltd v Moustafa

Citation: 

[2025] ACTSC 466

Hearing Date: 

8 May 2025

Decision Date: 

16 October 2025

Before:

Ainslie-Wallace AJ

Decision: 

See [146]

Catchwords: 

APPEAL – CIVIL LAW – Appeal from ACT Magistrates Court – dispute over payment for painting stage and variations to contract – breach of contract – whether Magistrate erred in finding purported termination of contract by Respondents was valid – whether Respondents had cured earlier breach of contract at time of termination – where Respondents had excluded Appellant from accessing building site – whether subsequent invitation to re-commence work provided uninterrupted possession to builders – appeal allowed

Legislation Cited: 

Court Procedures Rules 2006 (ACT), rr 1619, 1620, Sch 2 item 2.2
Magistrates Court Act 1930 (ACT), s 274

Cases Cited: 

Fox v Percy [2003] HCA 22; 214 CLR 118
Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149; 19 ACTLR 1

Parties: 

Heaven Builders Pty Ltd (Appellant)

Nour Moustafa Abdelhameed Moustafa (First Respondent)

Marwa Mohamed Elsaied Hassan Keshk (Second Respondent)

Representation: 

Counsel

WDB Buckland ( Appellant)

Self-represented ( First and Second Respondents)

Solicitors

BAL Lawyers ( Appellant)

Self-represented ( First and Second Respondents)

File Number:

SCA 34 of 2024

Decision Under Appeal: 

Court/Tribunal:             Magistrates Court of the ACT

Before:   Magistrate Theakston

Date of Decision:        26 July 2024

Case Title:  Heaven Builders Pty Ltd v Moustafa   & Anor (No 2)

Citation:  [2024] ACTMC 13

Court File Number:     CS 182 of 2022

AINSLIE-WALLACE AJ:       

Introduction

1․On 16 April 2021 Nour Moustafa Abdelhameed Moustafa (the First Respondent) and Marwa Mohamed Elsaied Hassan Keshk (the Second Respondent) entered into a contract with Heaven Builders Pty Ltd (the Appellant) to construct a two storey house on land owned by the Respondents at 1 Trewenack Street, Taylor in the Australian Capital Territory (ACT).  An earlier contract with the Appellant was for the construction of a one storey house.

2․In about June 2022 a dispute arose between the Appellant and the Respondents, as a consequence of which the Appellant considered that the Respondents had, by their actions, brought about practical completion of the project and sought the balance of funds owing to them under the contract.  The Respondents counter-claimed against the Appellant for the cost of completing the building works.

3․The matter was heard in the ACT Magistrates Court and on 26 July 2024, a Magistrate entered judgment for the Respondents in the sum of $82,038 together with interest and costs.

4․The Appellant appeals that decision.

Background

The Terms of the Building Contract

5․The terms of the contract entered into between the Appellant and the Respondents are, for these purposes, uncontroversial.  The controversy here is what effect those terms had in light of the parties’ actions.

6․The contract provided for progress payments to be made to the Appellant at various stages: base, frame, lock-up, fixing, painting and practical completion. It was uncontroversial that the Appellant had delivered invoices to the Respondents for the earlier appointed stages and those invoices…