Abdallah v Paco Nominees Pty Ltd

1. [1]

   PAYNE JA: This is a case about defective building work which was commenced in 2022 in the NSW Civil and Administrative Tribunal (NCAT) by the defendant, Paco Nominees Pty Ltd. Despite numerous procedural orders, no defence was ever filed by the builder, Georges Abdallah, the present plaintiff. Instead, on 23 October 2023, being the third occasion the matter had been set down for final hearing before NCAT, the plaintiff made an unsuccessful adjournment attempt. Despite being warned by NCAT, in writing, well prior to the hearing date that if the adjournment application was unsuccessful the plaintiff should be prepared immediately to proceed with the hearing and, for that purpose, should ensure that all witnesses were present and ready to give evidence, the plaintiff was not prepared to proceed and did not have any witnesses ready to give evidence.

2. [2]

   Instead, the plaintiff instructed his lawyers to make an adjournment application and, if unsuccessful, immediately to withdraw. The adjournment application was unsuccessful. After his lawyers withdrew, the plaintiff renewed his adjournment application on the basis that he was now self-represented. That application was refused. Following a brief exchange between the NCAT member, the plaintiff, and his nephew who was present and supporting him, the plaintiff left the hearing. The NCAT member then proceeded to hear the matter in the plaintiff’s absence. Subsequently, orders in favour of the defendant were made and a judgment published on 17 May 2023.

3. [3]

   The plaintiff appealed to the Appeal Panel of NCAT complaining about the decision to refuse the adjournment and about an alleged denial of procedural fairness after the plaintiff’s lawyers withdrew. The Appeal Panel rejected both complaints: Abdallah v Paco Nominees Pty Ltd [2024] NSWCATAP 259.

4. [4]

   The present summons complains only about the second part of the proceedings, that is, the refusal of the renewed adjournment application and an alleged denial of procedural fairness after the plaintiff’s lawyers withdrew. A ground framed as a constructive denial of jurisdiction by reason of rejecting an affidavit by the plaintiff who sought for it to be read before the Appeal Panel was also incorporated in the plaintiff’s summons.

5. [5]

   At its heart, this case is about the application of well understood principles of procedural fairness to a case where a self-represented litigant, knowing that the substantive case had been listed to proceed, chose to leave the courtroom after his adjournment application had been refused. No error of law has been shown in the decision of the Appeal Panel in rejecting the plaintiff’s complaints and the appeal to this Court should be dismissed.

6. [6]

   A stay of orders made by the Appeal Panel, granted by a judge of the Court in the duty list two business days before the hearing of the appeal, comes to an end by reason of the determination of these proceedings.

7. [7]

   The orders, dated 28 August 2025, are as follows:

8. [8]

   The schedule of undertakings set out:

9. [9]

   The undertaking of Wafaa Abdallah to the defendant is set out in the following terms:

10. [10]

    The undertaking from Markos Abdallah to the defendant is set out in the following terms:

11. [11]

    I will return to the subject of these undertakings at the conclusion of these reasons.

Relevant facts

1. [12]

   The defendant filed its application with NCAT on 26 October 2022. The defendant summarised the details of its claim as follows:

2. [13]

   The defendant explained in the application that:

3. [14]

   The matter was first listed for directions before NCAT on 5 December 2022. Relevantly, NCAT ordered:

4. [15]

   On 20 January 2023, the matter was set down for a one-day hearing on 15 May 2023.

5. [16]

   On or about 8 February 2023, the defendant sought to extend the time to comply with the orders made on 5 December 2022. The Tribunal made the following orders:

6. [17]

   A second directions hearing was held on 24 February 2023. The Tribunal made the following relevant orders:

7. [18]

   On 10 March 2023, the matter was set down for a one-day hearing on 6 July 2023.

8. [19]

   On 9 May 2023, following receipt of an application to vacate the hearing filed by the plaintiff, the Tribunal relevantly ordered:

9. [20]

   On 29 May 2023, the matter was set down for a one-day hearing on 23 October 2023.

10. [21]

    On 16 October 2023, the plaintiff filed a further application seeking, in essence, to vacate the hearing listed for 23 October 2023, and further extend the timetable for the filing of evidence. The plaintiff relied on an affidavit of his solicitor Ms Smith sworn 16 October 2023. In his application, the plaintiff relevantly stated that delays in preparation resulted from delays by the defendant, delays arising due to miscommunication issues with the plaintiff’s insurer, and issues affecting the plaintiff’s health that caused delays in the plaintiff serving his expert evidence, lay evidence, and points of defence.

11. [22]

    Amongst other matters, Ms Smith stated:

12. [23]

    NCAT replied in writing, stating:

13. [24]

    After ordering the plaintiff to file his defence and any outstanding evidence forthwith, NCAT relevantly directed:

14. [25]

    And so, the parties appeared at NCAT before Senior Member Dr Briggs on 23 October 2023.

15. [26]

    On 23 October 2023, the matter commenced at 9.15 am. Counsel for the plaintiff, Mr Adair, announced to NCAT at the outset that "I’m instructed by SLF Lawyers and I appear for the limited purpose of seeking an adjournment of today's hearing".

16. [27]

    Oral submissions were made on the application to vacate the hearing. Mr Adair submitted: “Now, as I’ve said, and I’ll make it absolutely clear, if the matter is forced on today, my client effectively has no defence”. Before concluding, Mr Adair adverted to the potential for a substantive hearing that day: “I’m not instructed to conduct a hearing on behalf of the [plaintiff]”.

17. [28]

    At approximately 10.20 am NCAT adjourned to consider its decision. After adjourning for about an hour and 10 minutes, the hearing resumed with the Tribunal delivering an oral decision relevantly as follows:

18. [29]

    The hearing was then adjourned until 2 pm. As I have said at the outset, no complaint is made in this Court about this decision to refuse an adjournment.

19. [30]

    When the hearing resumed, the plaintiff was not legally represented, although he was accompanied by his nephew, Mr Michael Mikhael, who described himself as having “a legal background”. It was belatedly submitted in oral submissions in this Court that the NCAT member should not have engaged with Mr Mikhael. This, however, was not a complaint made to the Appeal Panel or referred to in the summons in this Court and may thus be put to one side.

20. [31]

    Relevantly, the plaintiff stated to the Tribunal:

21. [32]

    The “him” the plaintiff was referring to was Mr Mikhael, who told the Tribunal that he was “looking after the [the plaintiff] mentally and emotionally”. The following exchange took place:

22. [33]

    At this point, Mr Mikhael spoke up and joined the plaintiff at the bar table. Mr Mikhael said that he was the one who gave instructions to the lawyers who acted for his uncle and translated from Arabic into English for him. After listening to Mr Mikhael, the Senior Member explained that he had dismissed the application for the adjournment in the morning, and that the matter would now proceed. Mr Mikhael then said:

23. [34]

    The following exchange then took place:

24. [35]

    Shortly afterwards, the plaintiff and Mr Mikhael left the Tribunal room, and the matter then proceeded in the plaintiff’s absence.

25. [36]

    At the conclusion of the hearing, the Tribunal reserved its decision, and published the following decision:

26. [37]

    The following day, 24 October 2023, the Tribunal issued the following reasons described as “Orders”:

27. [38]

    NCAT’s substantive decision may be summarised briefly. The plaintiff, at the date of the hearing, had served one expert report by Mr Mathew Melick, a building consultant dated 31 August 2023, which was largely based upon the plaintiff’s core instruction that the plaintiff was not responsible for the work which is the subject of this dispute.

28. [39]

    The plaintiff, however, had served no evidence to support his contention that he was not responsible for the work which is the subject of this dispute. Mr Melick's report was primarily a recitation of the plaintiff’s instruction. Moreover, the Melick report did not address quantum at all. Although the plaintiff was specifically directed to secure the attendance of Mr Mellick to give evidence on 23 October 2023, Mr Mellick did not appear at the hearing.

29. [40]

    At [6] to [12], NCAT summarised the elements of the claims brought by the defendant. At [13] and [14], NCAT noted the existence of a residential building contract between the plaintiff and a former owner of the subject property. At [16] to [18], NCAT noted that an insurance claim had been made by the defendant, and that the insurer’s investigation concluded:

30. [41]

    At [17], NCAT recorded that the insurer recommended that the owner contact the plaintiff with a view to having him return to the site to rectify the works. The defendant attempted to contact the plaintiff but was unable to do so. The present proceedings were thereafter commenced at NCAT.

31. [42]

    At [19] to [26], NCAT summarised the expert evidence relied on by the defendant. At [27] to [30], NCAT acknowledged that the defendant was seeking a money order rather than a recertification order as contemplated as the preferred outcome under s 48MA of the Home Building Act 1989 (NSW). NCAT then stated:

32. [43]

    NCAT then concluded:

33. [44]

    NCAT then considered the plaintiff’s evidence. The Tribunal found at [37] that the plaintiff’s expert evidence from Mr Melick which I have earlier addressed was unconvincing and that the two expert reports relied on by the defendant had been:

34. [45]

    NCAT concluded that it should accept the defendant’s expert reports and the conclusions and costs of work to rectify/complete the building work in contest between the parties with the exception that NCAT rejected the provision of a contingency allowance of 5%.

35. [46]

    On 17 May 2024, NCAT delivered its decision.

36. [47]

    The plaintiff appealed that decision of NCAT in an internal appeal to the NCAT Appeal Panel, heard on 2 September 2024.

37. [48]

    The Appeal Panel’s principal conclusion was there was no requirement to adjourn the proceedings to allow a delinquent party further opportunities to lead evidence. This is not a case where the plaintiff was denied a fair hearing, but one where the plaintiff failed to comply with directions for documents and evidence, did not serve various documents despite reasonable enquiry and repeated requests to do so by the defendant's legal representatives, and did not comply with fresh directions of the Tribunal or take the opportunity afforded by the Tribunal to do so.

38. [49]

    The Appeal Panel concluded that procedural fairness required a party to be given a reasonable opportunity to defend the proceedings and that opportunity was afforded to the plaintiff. The Appeal Panel concluded that by the plaintiff’s own fault, or that of his solicitors, the plaintiff failed to avail himself of the opportunity given. There was no denial of procedural fairness.

39. [50]

    The Appeal Panel considered that the plaintiff read too much into the exchanges between the Senior Member and the plaintiff’s counsel in drawing several inferences from this brief interaction. Most of the matters the plaintiff referred to in challenging the decision to refuse the interlocutory adjournment application were raised after NCAT had already given its oral reasons for refusing the application, and the remaining inferences proposed did not arise (such as a misapprehension that the appellant would be represented by his solicitors at the hearing) or were not controversial (such as that the material provided was voluminous).

40. [51]

    The Appeal Panel found that the defendant’s materials had been filed months before the hearing date, allowing the plaintiff plenty of time to understand and respond to those materials.

41. [52]

    As to the matters raised after the adjournment had been refused the Appeal Panel concluded:

    1. (1)

       The Appeal Panel rejected the plaintiff’s contention that the plaintiff had limited English skills and would need the assistance of an interpreter to participate in the hearing. The Appeal Panel found that NCAT had directly addressed this matter and rejected it as a basis for an adjournment when it noted, when the matter was raised by Mr Mikhael that:

    2. (2)

       Secondly, the Appeal Panel found that following the dismissal of the adjournment application, the plaintiff’s counsel had called Mr Mikhael and told him that he needed to "come down and take [the plaintiff] home". The Appeal Panel held “accepting for the purposes of argument that this is factually correct, we do not see how it points to the decision not being fair and equitable”.

    3. (3)

       Thirdly, the Appeal Panel found that the plaintiff claimed that he had made an appointment with a psychologist on the afternoon of the hearing. The Appeal Panel noted that the appointment had not been raised by the plaintiff’s counsel during the course of the adjournment application. Accepting that the plaintiff did have such an appointment, the Appeal Panel concluded that “it speaks to the priority with which he treated his attendance at the hearing, the (third) hearing date having been fixed some five months earlier”.

    4. (4)

       In response to submissions that that the plaintiff and Mr Mikhael were "very confused" about the circumstances in which the plaintiff had been placed as a result of the adjournment application being refused and no legal representatives being present to represent the plaintiff for the final hearing, the Appeal Panel concluded that the plaintiff was not so confused that he failed to brief a solicitor and barrister on the adjournment application. The Appeal Panel found that no explanation was given by the plaintiff about why one or both of his counsel or solicitor were not retained for the substantive hearing, the only explanation proffered by the plaintiff being an unsupported claim that the plaintiff had been “abandoned” by them both. The Appeal Panel did not accept that submission. The Appeal Panel found that it was plainly stated by the plaintiff’s counsel that the plaintiff’s instructions were to appear to seek and adjournment only, not to defend the substantive proceedings.

    5. (5)

       Critically for present purposes, the Appeal Panel found as a fact that a more probable explanation than the plaintiff being abandoned by his legal advisers was that the plaintiff instructed his lawyers not to defend the proceedings if he was denied an adjournment. The Appeal Panel concluded that the conduct of the plaintiff himself, his counsel, and solicitors was entirely consistent with that approach.

42. [53]

    The Appeal Panel found that the matters raised, or even all matters when considered cumulatively, had not identified any error by NCAT in refusing the adjournment application.

43. [54]

    The Appeal Panel referred to Leisure Brothers Pty Ltd v Smith [2017] NSWCATAP 11, a case having some resonance with the present:

44. [55]

    The Appeal Panel refused leave to appeal NCAT’s decision. The Appeal Panel were not satisfied that any ground or matter raised by the plaintiff involved an issue of principle or a question of public importance or that the Tribunal has gone about its fact-finding process in such an unorthodox manner that it was likely to have produced an unfair result. These conclusions were underlined in circumstances where the plaintiff repeatedly failed to comply with the directions of the Tribunal.

Appeal to this Court

1. [56]

   There were four grounds of appeal, set out as follows:

2. [57]

   Ground 3 was abandoned at the hearing in this Court.

3. [58]

   At the outset of the hearing of this Court, a 5-lever arch Court Book was marked Exhibit A. The contents of Exhibit A were subject to a number of specific objections and rulings.

4. [59]

   An affidavit by the plaintiff’s solicitor, Mr Azzi (and Exhibit GA-4) being pages 1430 to page 1697, which apparently dealt with the abandoned Ground 3, were not pressed.

5. [60]

   There remained in dispute an affidavit sworn by the plaintiff dated 30 July 2024, together with Exhibit GAB-1 (pages 322-366 of Exhibit A) which had been tendered before the Appeal Panel but rejected. I admitted this evidence “subject to relevance, but limited to the question of leave to appeal under section 83 only”. The evidence was “not admitted for evidence of the truth of the contents.” Whilst I formally permitted counsel for the plaintiff to renew the tender at the conclusion of the proceedings no such application was made.

6. [61]

   The affidavit sworn by the plaintiff dated 30 July 2024, together with Exhibit GAB-1, had been rejected by the Appeal Panel. The Appeal Panel found:

7. [62]

   As I will explain, there was no error of law revealed by these conclusions.

8. [63]

   The starting point is that the jurisdiction of the Appeal Panel was conferred by s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act):

9. [64]

   The appeal was limited, as of right, to any question of law: s 80(2)(b). Only with leave of the Appeal Panel (which was not granted) could the appeal extend to any other grounds. Critically for the plaintiff’s case here, the Appeal Panel did not determine to deal with this internal appeal by way of a new hearing and, thus, the question of permitting fresh evidence pursuant to s 80(3)(b) did not arise. The plaintiff’s case, which was predicated on the applicability of s 80(3)(b) to this new evidence, failed at this first and fundamental hurdle.

10. [65]

    Given that the Appeal Panel did not determine to deal with this internal appeal by way of a new hearing, the evidence the plaintiff sought to adduce was only admissible if it fell within cl 12 of Schedule 4 of the NCAT Act which provided:

11. [66]

    In order for leave to be granted under s 80(2)(b) on the basis of “significant new evidence”, it was necessary that the evidence meet the description of “evidence that was not reasonably available at the time the proceedings under appeal were being dealt with”.

12. [67]

    There are three fundamental problems with the plaintiff’s case about the admissibility of this evidence. Each is sufficient to reject the tender. First, no complaint was made by the plaintiff in the summons or in submission that there was any error of law in the application of cl 12 of Schedule 4 of the NCAT Act to this evidence. Secondly, all of the evidence sought to be adduced by the plaintiff to which objection was taken was plainly reasonably available at the time the proceedings under appeal were being dealt with. The plaintiff’s real complaint is that his then lawyers did not deploy that evidence in support of his adjournment application. The evidence to which objection was taken was sought to be deployed before the Appeal Panel to conduct a different case to that conducted on behalf of the plaintiff before NCAT. Thirdly, so far as the attempt to tender the document in this Court is concerned, as I will explain, the appeal is on a question of law only. The Appeal Panel found the following, as a fact:

13. [68]

    As I will explain, the rejection of the claim that the plaintiff was “abandoned” by his counsel and solicitor was a finding of fact by the Appeal Panel. The plaintiff is not permitted to challenge that finding of fact on this appeal.

Plaintiff’s submissions

1. [69]

   The plaintiff’s written and oral submissions commenced by addressing what was submitted to be the strongest ground, Ground 4, an alleged constructive failure to exercise jurisdiction. It was submitted that the Appeal Panel erred by failing to admit evidence presented by the plaintiff in the appeal of the Tribunal's decision. The “rejected’ evidence' comprised the affidavit sworn by the plaintiff dated 30 July 2024 together with Exhibit GAB-1 (pages 322-366 of Exhibit A) I have addressed above.

2. [70]

   The essence of the plaintiff’s submission was as follows:

3. [71]

   It was submitted that the error was material in that the error deprived the appellant of a realistic possibility of a different outcome: Nathanson v Minister for Home Affairs (2022) 276 CLR 80 at [1]-[2].

4. [72]

   The essence of Ground 1 is that the Appeal Panel allegedly erred in failing to find that the plaintiff had been denied procedural fairness at the final hearing before the Tribunal on 23 October 2023 by the refusal of NCAT to order an adjournment on the plaintiff’s application made after lunch. The plaintiff accepted that the Appeal Panel had not erred in finding that the adjournment application made by the plaintiff’s lawyers that morning had been correctly refused. The Appeal Panel’s alleged error was said to be demonstrated by the matters asserted in particulars (a)-(i), matters to which I will return in detail.

5. [73]

   The plaintiff drew attention to Hanson v Metricon Homes Pty Ltd [2020] NSWSC 401 where Hamill J found that the failure of the tribunal member to make sufficient enquiries before granting leave to a solicitor to withdraw gave rise to a denial of procedural fairness in that case (at [68]-[69]). The plaintiff submitted that in the present case:

6. [74]

   The essence of Ground 2 is that the Appeal Panel erred in determining that the plaintiff had not been denied procedural fairness by the failure of NCAT to provide the plaintiff with sufficient information about the practices and procedures of the Tribunal.

7. [75]

   The gravamen of this ground was submitted to be "the failure of the Tribunal to meet fundamental procedural fairness obligations in its engagement with Mr Abdallah as a self-represented litigant with language and mental health impairment".

8. [76]

   The plaintiff submitted that s 38(5) of the NCAT Act obliged the Appeal Panel, as far as reasonably practicable, to take practical measures to ensure each party understands the nature of the proceedings. It was contended that the scope of this overall duty is necessarily affected by the circumstance of the parties, including their language proficiency and their legal representation (or lack thereof): SZWBH v Minister for Immigration and Border Protection (2015) 229 FCR 317; [2015] FCAFC 88. The plaintiff submitted that NCAT was obliged proactively to instruct the plaintiff, as a newly self-represented litigant, about practice and procedure and that the failure to do so amounted to a breach of procedural fairness.

Consideration

1. [77]

   The right of appeal to the Supreme Court is confined to “a question of law” and does not extend to any other matter, such as a question of fact: Dokas v Gallagher (No 2) [2024] NSWCA 236 at [65], per Kirk JA and Griffiths AJA. An appeal on a question of law from the decision of the Appeal Panel can only be brought where the leave of the Supreme Court has been obtained, pursuant to s 83(1) of the NCAT Act.

2. [78]

   In Dokas v Gallagher (No 2), Kirk JA and Griffiths AJA summarised the effect of those matters as follows:

3. [79]

   A motion in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 50.16A was filed within time by the defendant seeking an order that the summons be dismissed on the basis that the proposed grounds of appeal do not raise questions of law.

4. [80]

   As I will explain, proposed Grounds of appeal 1 and 4 do not raise a question of law. Ground 2, read in isolation, does raise a question of law, but suffers from the same deficiency as Ground 1 in that all of the operative particulars of the ground raise questions of fact, which the Appeal Panel determined adversely to the plaintiff.

5. [81]

   I will commence, as the plaintiff did, by a consideration of Ground 4.

6. [82]

   Jurisdictional error, in the sense of a constructive failure to exercise jurisdiction, was discussed in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088. Gummow and Callinan JJ, with whom Hayne J agreed, held that for an administrative decision-maker “[t]o fail to respond to a substantial, clearly articulated argument relying upon established facts” was both a constructive failure to exercise jurisdiction and a failure to accord natural justice: at [23]-[25]. Kirby J similarly found a constructive failure to exercise jurisdiction in that case where the decision-maker’s mistake “amounts to a basic misunderstanding of the case brought by an applicant”: at [88]. The term natural justice was used in Dranichnikov because, at that time, the Federal Court had no statutory power to review for breaches of natural justice, which was why Mr Dranichnikov had commenced proceedings in the High Court seeking review under s 75(v) of the Australian Constitution.

7. [83]

   The phrase “constructive failure to exercise jurisdiction” provides a generic description covering most if not all, forms of “jurisdictional error”. In Dranichnikov it was used to identify a failure on the part of the Tribunal to address the central claim it was required to determine. Although the distinction may not matter in many cases, in principle there is a distinction between failing to address the claim and failing to consider material which must be considered in order to address the claim. A claim will seek the exercise of a specific power, such as the issue of a visa or the setting aside of a cancellation of a visa. In a particular case, that will require addressing a specific ground or grounds of eligibility relied on by the claimant. It was at that level that the Tribunal failed in Dranichnikov. However, the Tribunal might have addressed the correct question but failed to have regard to particular material which was said to support the claim and which the statute obliged the Tribunal to consider.

8. [84]

   The plaintiff’s complaint here is quite different and fails for at least three reasons.

9. [85]

   First, the Appeal Panel did not “fail to respond to a substantial, clearly articulated argument relying upon established facts.” The Appeal Panel carefully considered, and rejected, the argument advanced by the plaintiff.

10. [86]

    As adverted to at [64], the provision relied upon by the plaintiff as permitting the tender of fresh evidence from the plaintiff in support of his claim that an adjournment should have been granted after he was “abandoned” by his legal representatives, was s 80(3)(b) of the NCAT Act (set out at [63]). This provision did not apply. This was because the Appeal Panel had not decided to deal with the internal appeal by way of a new hearing as provided for by s 80(3)(a). It formed no part of the plaintiff’s summons that the Appeal Panel erred in failing to determine to deal with the internal appeal by way of a new hearing as provided for by s 80(3)(a). The reference to "fresh evidence" in s 80(3)(b) is in the context of the Appeal Panel conducting a new hearing of the kind identified in s 80(3)(a) following the establishment of grounds of appeal that in the view of the Appeal Panel justify a new hearing. Section 80(3)(b) does not provide a general discretion to permit fresh evidence for the purposes of establishing error, as was contended by the plaintiff.

11. [87]

    As was clearly pointed out by the defendant in written submissions, there is a provision permitting fresh evidence in an Appeal Panel hearing of the present kind. This was the provision considered and applied by the Appeal Panel. The evidence the plaintiff sought to adduce was only admissible if it fell within cl 12 of Schedule 4 of the NCAT Act. The Appeal Panel addressed the correct provision and applied the correct test.

12. [88]

    It was not an error, let alone an error of law, for the Appeal Panel to conclude that the evidence sought to be adduced by the plaintiff was “reasonably available” at the time the proceedings under appeal were being dealt with, and thus not admissible. The Appeal Panel specifically referred to the decision in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 which dealt with this issue at [28]: "there is no feature of the evidence or the witness who provided the evidence to suggest it could not have been obtained at an earlier time and was not, in that sense, reasonably available", here at the time of the original hearing.

13. [89]

    In any event, by reason of the plaintiff’s misapprehension about the provision which applied to the admission of fresh evidence here, no complaint was made about legal error in the application of cl 12 of Schedule 4 of the NCAT Act.

14. [90]

    Secondly, the Appeal Panel carefully considered and rejected the plaintiff’s submission that an adjournment should have been granted after he was “abandoned” by his legal representatives. The Appeal Panel made findings about all of the elements asserted by the plaintiff as supporting his application for an adjournment. The fundamental basis of that claim, that he was “abandoned” by his legal representatives, was rejected by the Appeal Panel who made the finding of fact at [126] that “a more probable explanation than the appellant being abandoned by his legal advisers, is that the appellant instructed them not to defend the proceedings if he was denied an adjournment”. That finding, which is central to the reasoning of the Appeal Panel in this issue, cannot be challenged in this Court.

15. [91]

    Thirdly, there was no denial of procedural fairness occasioned by the refusal to admit the evidence sought to be tendered by the plaintiff. The Appeal Panel heard and carefully considered the arguments made by the plaintiff in support of admissibility and applied the correct legal test in concluding that the evidence was inadmissible. It was suggested before the Appeal Panel and in this Court that relevant unfairness was occasioned to the plaintiff by the plaintiff’s former lawyers’ conduct. I express no views about those suggestions, save to say that the plaintiff remains free, subject to any relevant procedural or substantive limitations, to pursue any grievance against his former lawyers in litigation against them. I note, in this regard, NCAT’s finding that a principal reason for the plaintiff seeking the adjournment was his “misconception that the matters in dispute would be dealt with by his insurer, and that he was therefore under no obligation to meet the Tribunal directions, despite advice from his solicitors to the contrary”. Whether that conclusion is factually accurate or not is not a question which can be litigated in this appeal.

16. [92]

    Ground 4 does not raise a question of law. It seeks to cavil with an evidential ruling based upon a factual finding as to whether the evidence was “reasonably available” at the relevant time. The Appeal Panel was correct to conclude that the evidence sought to be tendered was reasonably available to the plaintiff at the time of the hearing on 23 October 2023.

17. [93]

    Ground 4 must be rejected.

18. [94]

    Ground 1 does not raise a question of law. This is because the present appeal to this Court is confined to a decision of the Appeal Panel and does not extend to the NCAT decision at first instance: Bronze Wing International Pty Ltd v Safework NSW [2017] NSWCA 41 at [10] and Dokas at [66].

19. [95]

    Ground 1 does not engage with what question of law allegedly arises from the Appeal Panel’s decision. Upon analysis, the plaintiff’s complaints about an alleged failure to make a finding about a denial of procedural fairness are in truth complaints about factual findings made by the Appeal Panel.

20. [96]

    Obtaining leave to appeal from an internal decision of the Tribunal other than on a question of law is a two-stage process. At the first stage the plaintiff must persuade the Appeal Panel that it may have suffered a substantial miscarriage of justice. The asserted basis, if it is to arise, must be under clause 12 of Schedule 4 of the NCAT Act which is set out at [65] above. The Appeal Panel did not find that any of the matters addressed by clause 12 of Schedule 4 of the NCAT Act (1)(a)-(c) arose.

21. [97]

    That the plaintiff’s complaints are, in truth, complaints about factual findings is made clear on an analysis of the “particulars” provided of Ground 1 (set out at [56]) above. Particulars (a)-(c) provide a description of the grossly late application by the plaintiff to adjourn the final hearing and the fact that the adjournment application was refused. It was made clear by the plaintiff’s counsel in this Court that the appeal to this Court made no complaint about the decision to refuse the adjournment made whilst the plaintiff was legally represented before lunch. In any event, the present appeal to this Court is confined to a decision of the Appeal Panel and does not extend to the NCAT decision at first instance per Bronze Wing. Particulars (a)-(c) may thus be put to one side. There is no particular (d), which may also be put to one side. No complaint is made about particular (e) in this Court which may thus also be put to one side.

22. [98]

    A focus of the plaintiff’s case in this Court was particular (f). This particular makes a factual claim, namely that at the commencement of the final hearing, the plaintiff’s solicitors “unexpectedly” did not appear. This particular should be rejected for three reasons. First, the present appeal to this Court is confined to a decision of the Appeal Panel and does not extend to the NCAT decision at first instance per Bronze Wing. Secondly, this particular contains an assertion of fact, inconsistent with the factual findings of the Appeal Panel. The plaintiff claimed that the relevant finding of fact, at [126] of the Appeal Panel judgement (set out at [67]), was “speculation” rather than a finding of fact. I do not agree. The finding was expressed in conventional fact-finding terms, of “more probable than not”. At its highest, the plaintiff’s claim that the solicitors “unexpectedly” did not appear after lunch was an alleged subjective belief held by the plaintiff, inconsistent with a factual finding made by the Appeal Panel. It will be recalled that counsel for the plaintiff told NCAT that if the adjournment was refused, the plaintiff had no defence to the claim made. That submission is consistent with the Appeal Panel’s finding of fact which, in any event, cannot be challenged on this appeal.

23. [99]

    Thirdly, the plaintiff’s new case in this Court, that his “abandonment” by his solicitor (but not his barrister) was unexpected, is not open to the plaintiff. This was not a complaint made to the Appeal Panel. The grounds of appeal before the Appeal Panel are inconsistent with this claim. The only ground which raised the issue, Ground 1(e), provided:

24. [100]

    It is clear that the only ground of appeal before the Appeal Panel which raised this issue did not raise the issue of “abandonment” by the plaintiff’s solicitor (but not his barrister). I reject the plaintiff’s suggestion that the defendant acquiesced in the plaintiff conducting a case outside of the grounds of appeal. None of the references to submissions provided by the plaintiff make that claim good. Particular (f) does not raise a question of law but rather seeks to contest facts found against the plaintiff and to conduct a different case in this Court to the one conducted in the Appeal Panel.

25. [101]

    Particular (g) makes a number of factual assertions which are inconsistent with the factual findings of the Appeal Panel and thus are not open to the plaintiff on this appeal. In particular, the assertion that the plaintiff had “limited English language and comprehension skills” is inconsistent with the Appeal Panel’s factual finding. The Appeal Panel found, as a fact, that (at [123]) "it is tolerably clear from the transcript that the [plaintiff] was able to engage with the Tribunal in English." That finding of fact cannot be challenged on this appeal.

26. [102]

    The remaining particulars, (h) and (i) are descriptive only. Particular (h) records that the plaintiff departed the hearing “to attend a medical appointment”, and the final hearing proceeded. The hearing had been fixed for about 5 months prior to this date. This was the third occasion on which the matter had been set down for final hearing. NCAT had clearly informed the plaintiff and his lawyers, in writing long before the day of the hearing, that “the parties' witnesses must be present at the hearing and the parties must be ready to proceed in the event that the adjournment application is refused.” (emphasis added). No explanation was offered at the time (or now) about how it was, in light of this clear direction from NCAT, that a medical appointment had been fixed by the plaintiff for the afternoon of the final hearing. The fact of a medical appointment provides no basis to conclude that the Appeal Panel erred in its approach in any way, much less that it denied the plaintiff procedural fairness. Particular (i) records the fact that NCAT determined the matter in favour of the defendant. This conclusion does not give rise to any suggestion of error on the part of the Appeal Panel.

27. [103]

    Particular (j) is the only particular addressed to the decision of the Appeal Panel. Particular (j) asserts that the Appeal Panel determined that the plaintiff was not denied procedural fairness because he either did not attend the final hearing or left the final hearing “once it had 'barely' commenced". This, by way of conclusion, is the essence of the plaintiff’s argument.

28. [104]

    I have concluded that the adjournment application which was allowed to be restated after the luncheon adjournment, was properly refused. Applications for leave to appeal relating to a question of practice and procedure (such as an adjournment decision) must be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited therein.

29. [105]

    The Appeal Panel concluded, correctly, that there was no requirement to adjourn a proceeding to allow a delinquent party further opportunities to construct a case. It will be recalled a defence has not even been filed by the plaintiff, let alone any evidence beyond an expert report based upon an assertion made by the plaintiff. This is not a case where the plaintiff was denied a fair hearing, but simply one where the plaintiff failed to comply with directions for the service of documents and evidence, did not serve essential documents despite repeated orders to do so by made by NCAT, and did not comply with the generous further opportunities afforded by the Tribunal to prepare his case for hearing. The Appeal Panel referred, correctly, to the guiding principle to be applied per s 36(1) of the NCAT Act:

30. [106]

    Having failed to secure an adjournment of the final hearing, the plaintiff (on the Tribunal’s findings of fact) gave instructions to his lawyers to withdraw, so better to improve his prospects of subsequently claiming a denial of procedural fairness. The Appeal Panel found the plaintiff engaged in a strategy that involved the plaintiff instructing his lawyers to withdraw if his application for an adjournment failed. It is to be noted that counsel for the plaintiff submitted as part of the adjournment application that "I'll make it absolutely clear, if the matter is forced on today, my client effectively has no defence". That submission tends in favour of the conclusion drawn by the Appeal Panel.

31. [107]

    Decisions regarding adjournments are discretionary, and the grounds upon which such decisions may be challenged are confined to those grounds identified in House v The King (1936) 55 CLR 499. Particular caution must be exercised by appellate courts when asked to intervene in such decisions. As explained by the High Court in Bloch v Bloch (1981) 180 CLR 390 at 395 (Wilson J, Gibbs CJ, Murphy, Aickin and Brennan JJ agreeing) (at 395):

32. [108]

    In Sali v SPC Ltd (1993) 67 ALJR 841; [1993] HCA 47, the majority of the High Court observed (at 843-844):

33. [109]

    Procedural fairness simply requires a party to be given a reasonable opportunity to defend the proceedings. The plaintiff was given a reasonable opportunity to defend the proceedings. There was no breach of procedural fairness. The particulars to this ground considered both separately and as a whole make clear that the plaintiff is not raising a question of law only. Rather, central to Ground 1 are arguments the plaintiff wishes to make about critical facts found against him by the Appeal Panel. This is not permissible in an appeal under s 83 of the NCAT Act.

34. [110]

    Leave to appeal on Ground 1 should be refused.

35. [111]

    The essence of Ground 2 is that the plaintiff was denied procedural fairness by NCAT failing to explain relevant practices and procedures to him and the Appeal Panel erred in failing so to conclude. Framed in this way I accept that Ground 2 raises a question of law. An initial problem is that exactly the same particulars are provided for Ground 2 as are provided for Ground 1. For the same reasons as I have given in relation to Ground 1, if read with those particulars, Ground 2 does not raise a question of law. I am prepared, however, to address Ground 2 without regard to the particulars given which raise disputed questions of fact.

36. [112]

    The content of procedural fairness is shaped by the relevant legislative context. Section 38 of the NCAT Act provides:

37. [113]

    Section 38 of the NCAT Act relevantly provides that the Tribunal is to take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. It does not require the Tribunal to provide a defaulting party with an automatic adjournment of a final hearing. The statutory requirement is to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings if requested to do so. No such request was made in the present case.

38. [114]

    I reject the plaintiff’s claim that he was denied procedural fairness at the NCAT hearing due to not being properly advised by the Tribunal as to matters of practice and procedure.

39. [115]

    In Chalik v Chalik [2025] NSWCA 136, the Court of Appeal reiterated the principles underpinning a court’s responsibility to an unrepresented litigant and said:

40. [116]

    In Jannis v Ant-Hassa Pty Ltd [2020] NSWCATAP 99, a differently constituted Appeal Panel said:

41. [117]

    The plaintiff’s assertion that there was a denial of procedural fairness by reason of an absence of a sufficient explanation of the relevant practices or procedures of the Tribunal cannot be sustained. The Appeal Panel found the following:

42. [118]

    No occasion arose to explain the practices and procedures of NCAT. On the Appeal Panel’s factual finding, not open to challenge in this Court, the plaintiff voluntarily did not attend the final hearing, or at least voluntarily left the NCAT hearing when it had “barely commenced”. As such, the plaintiff was not present at a time when relevant guidance about NCAT’s practices and procedures could have been given. That finding was plainly correct. In any event, it is a finding not open to challenge in an appeal under s 83 of the NCAT Act.

43. [119]

    Further the plaintiff, like any other party, was under a duty to co-operate with the Tribunal to give effect to the guiding principle (set out at [105]) and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal: s 36(3) NCAT Act. In the present case, on the view of the facts most favourable to the plaintiff, he did not comply with any directions or orders of the Tribunal and voluntarily left the final hearing before anything of substance happened. The defendant had not opened the case. No evidence had been tendered. There was no occasion for NCAT to explain to the plaintiff any practice or procedure relevant to some part of the case which had yet to occur.

44. [120]

    The NCAT member did say, in explanation to the plaintiff and his nephew who was assisting him, prior to the plaintiff leaving, “now, obviously, I would think it’s probably in [the plaintiff’s] interest to be here… If you stay, presumably, [the plaintiff] will be in a position to respond to what is put by the applicants". That, in the circumstances, was all that was required. NCAT was not required as an incident of providing procedural fairness in the present case to advise the plaintiff about how his rights should be exercised. To have advised the plaintiff further would likely have involved stepping into the arena and would have been contrary to the principles gathered most recently by the Court of Appeal in Chalik v Chalik. No error of law was shown on the part of the Appeal Panel in failing to discern a denial of procedural fairness by NCAT.

45. [121]

    Finally, the plaintiff has not in any event shown that a different outcome could have been open if any putative assistance had been provided. It is significant that at no stage did the plaintiff request any such assistance and as such did not enliven any additional potential obligations pursuant to s 38(5)(b) of the NCAT Act. Even in this Court, the plaintiff’s legal representatives could not formulate what precisely about the practices and procedures of NCAT should have been explained to the plaintiff but were not. The closest to an explanation was that the plaintiff should have been informed that he could ask questions of the defendant’s witnesses to cast doubt on their conclusions about liability and quantum. As the plaintiff’s only witness had not attended the hearing, in breach of NCAT’s direction, the plaintiff accepted it was unlikely that NCAT would have permitted the tender of his report. In circumstances where the plaintiff’s lawyer had told NCAT that morning "I'll make it absolutely clear, if the matter is forced on today, my client effectively has no defence", I am not persuaded that any different outcome was possible, or that a different conclusion about a possible outcome to that proffered by the plaintiff’s own counsel on the day of the trial should be reached.

46. [122]

    The Appeal Panel did not err in finding that the plaintiff had not been denied procedural fairness. Whist I have addressed this ground on the basis that a question of law is raised, I would nevertheless refuse leave to appeal on Ground 2.

47. [123]

    I would refuse leave to appeal on Ground 2 for all the reasons I have given and, in addition, for the reason of delay which has now occurred which would likely fundamentally prejudice the rights of the defendant. It will be recalled that the plaintiff has not filed a defence to the defendant’s claim. If the Appeal Panel’s decision were set aside and the matter remitted, essentially to the beginning as the plaintiff submits should be done, the plaintiff apparently wishes to file a defence placing blame on the original owner and the private certifier for various building defects. If the plaintiff had complied with NCAT’s orders and filed a defence in a timely way making such a claim, the defendant submits, and I accept, that it would have considered joining the original owner and the private certifier to the proceedings within the relevant time limits for doing so. That opportunity is now likely lost as more than six years have passed since the issue of the occupation certificate, which provides the outer time limit on the s 18B Home Building Act warranties. For this additional reason, leave to appeal on Ground 2 should be refused.

The stay granted in the duty list immediately prior to this appeal being heard

1. [124]

   As noted at the outset, immediately prior to this case being heard, the plaintiff approached the duty judge and obtained a stay of further enforcement of the judgement of the Appeal Panel. Limited in that way, the application may be understood as being uncontroversial, although approaches to the duty judge in the days immediately leading up to a final hearing are to be deprecated as likely to lead to a waste of scarce judicial resources.

2. [125]

   The orders sought by the plaintiff went much further than simply providing for a stay of enforcement. First, an order was sought directing the Registrar General to remove a record on the title to a property of a Writ of Property issued by the District Court of New South Wales in proceedings 2025/11197 on 28 January 2025. That order was granted. Whatever priority afforded to the defendant by reason of registration of that record was lost. This is the opposite of maintaining the status quo, the usual rationale for the grant of a stay. It seems, however, that despite the outcome of this case I cannot restore the priority formerly enjoyed by the defendant.

3. [126]

   The orders made also incorporated undertakings given by two non-parties to the proceedings. A significant problem with the undertakings in the form they took is that the undertakings only remained operative the earlier of the time “until judgment is given in the Supreme Court proceedings in 2025/16105” or further order of the court. Those undertaking expire upon my giving judgment. It may be (I simply do not know) that the defendant has an interest it wishes to protect in relation to property now held by those third parties which is no longer the subject of an undertaking. When making orders, I will formally note that if they are so advised, nothing in those orders prevents the defendant from seeking immediate interlocutory relief from the Real Property list judge in relation to the expired undertakings given by Wafaa Abdallah and Markos Abdallah.

4. [127]

   Finally, to avoid any doubt about the possible dissipation of the plaintiff’s funds held pursuant to an undertaking referred to in the orders of 28 August 2025, I will order that any funds the subject of the undertaking to those orders not be distributed without further order of the court. The defendant will be granted leave, after a period of 7 days has expired, to apply to my chambers for an order releasing those funds at its direction.

Conclusion and orders

1. [128]

   For the foregoing reason I make the following orders:

   1. (1)

      Leave to appeal on grounds 1, 2 and 4 refused.

   2. (2)

      Appeal dismissed.

   3. (3)

      Plaintiff to pay the defendant’s costs.

   4. (4)

      The funds the subject of the undertaking to the orders of 28 August 2025 held in the trust account of the plaintiff's solicitors in these proceedings, Aquinas More Lawyers, not be distributed without further order of the court.

   5. (5)

      Leave granted to the defendant, after a period of 7 days from the date of these orders, to apply to the chambers of Payne JA by email (copied to the plaintiff’s lawyers) for an order releasing the funds referred to in order 4.