This case is about a legal stoush between homeowners, Mr Hawach and Ms Reimers, and a building company, A & A Building Services Pty Ltd, over some building work done at their home in Lindfield, NSW. The homeowners claimed the building company breached their contract for a range of building works and owed them damages. However, the building company argued there was no such broad contract, only an arrangement where they helped the homeowners by recommending tradies and letting them use their trade account for materials. The court ultimately refused the homeowners’ request for leave to appeal an earlier decision by the NSW Civil and Administrative Tribunal Appeal Panel, meaning the Appeal Panel’s decision, which largely sided with the building company and allowed a set-off for costs incurred, stands.
Detailed list
- Case Name: Hawach v A & A Building Services Pty Ltd
- Medium Neutral Citation: NSWSC 1174
- Jurisdiction: Supreme Court of New South Wales, Common Law
- Hearing Date: 25 September 2025
- Decision Date / Date of Orders: 8 October 2025
- Before: Stern J
- Plaintiffs: Joseph Hawach (First Plaintiff), Sarah Grace Reimers (Second Plaintiff)
- Defendant: A & A Building Services Pty Ltd
- Defendant’s Director: Mr Eassey
- Location of Property: Lindfield, NSW
- Original Tribunal Claim: Filed in the NSW Civil and Administrative Tribunal (the Tribunal) in 2021
- Tribunal Decision: 13 June 2023, dismissed plaintiffs’ claim with costs, found limited waterproofing contract, awarded $25,595.76 damages to plaintiffs but allowed a $30,000 set-off to defendant.
- Appeal Panel Decision: 19 July 2024, refused leave to appeal and dismissed the appeal.
- Legislation Cited:
- Civil and Administrative Tribunal Act 2013 (NSW)
- Design and Building Practitioners Act 2020 (NSW)
- Home Building Act 1989 (NSW)
- File Number(s): 2024/314985 (Supreme Court), 2023/222011 (NCAT Appeal Panel)
Simple summary of the case
The whole story started when Mr Hawach and Ms Reimers, who live together in Lindfield, NSW, decided to do some renovation work on their home. Ms Reimers got an owner-builder permit, and Mr Hawach organised the work. They met Mr Eassey, the director of A & A Building Services Pty Ltd, in 2016.
Fast forward to 2021, the homeowners took A & A Building Services to the NSW Civil and Administrative Tribunal (NCAT). They claimed that in October 2017, they had a contract with the company for a whole bunch of building works, and that the company had messed up, causing them losses. They wanted damages for breaches of warranties under the Home Building Act, breach of contract, negligence, and breach of statutory duty under the Design and Building Practitioners Act.
A & A Building Services, however, completely denied having such a broad contract. They said they only had an “Arrangement” where they helped the homeowners by recommending subcontractors and letting them use the company’s trade account to get materials at a discount. They also claimed the homeowners owed them money under this arrangement, which they wanted to set off against any damages.
The NCAT Tribunal looked at everything and found that there wasn’t a big, overarching building contract as the homeowners claimed. Instead, they found that the only formal residential building contract under the Act was for some limited waterproofing work on a western balcony and in the bathrooms. This waterproofing work was indeed defective, and the Tribunal awarded the homeowners $25,595.76 for those defects.
Crucially, the Tribunal also found that while the building company didn’t have the broad contract they alleged, they were still owed $30,000 by the homeowners for the help they provided through the “Arrangement” (like ordering materials and recommending tradies). The Tribunal allowed the building company to “set off” this $30,000 against the damages they owed the homeowners. This meant the homeowners ended up owing the building company a bit of money, even though some work was defective. The Tribunal rejected the homeowners’ argument that this set-off was not allowed under sections 10 and 92 of the Home Building Act.
Unhappy with this, the homeowners appealed to the NCAT Appeal Panel. But the Appeal Panel, in July 2024, refused them leave to appeal and dismissed their appeal.
Still not giving up, the homeowners then took their fight to the Supreme Court of New South Wales, asking for leave to appeal the Appeal Panel’s decision. They argued that the Appeal Panel made several legal mistakes, including misinterpreting the homeowners’ concessions about money owed, failing to consider a contractual obligation for a waterproofing certificate, and not correctly applying legal principles about contracts that are partly oral or based on conduct.
Justice Stern, in the Supreme Court, carefully reviewed all these arguments. The judge explained that appealing from the Appeal Panel to the Supreme Court on a “question of law” is pretty strict. It’s not enough to just say there was a mistake; it has to be a clear legal error, not just a disagreement about the facts.
The judge found that the homeowners’ arguments largely boiled down to disagreements about factual findings, or interpretations that were not clear legal errors. For example, regarding the $30,000 set-off, the judge agreed with the Appeal Panel that there was a contractual basis for the homeowners to reimburse the building company for the expenses incurred through the “Arrangement,” and that the homeowners’ concessions about the amount owed were factual. The judge also found that section 10 of the Home Building Act didn’t stop the set-off because the money being set off wasn’t related to a breach of the specific waterproofing contract.
On the waterproofing certificate, the judge noted that while Mr Eassey had mentioned he’d provide one, the homeowners hadn’t proven it was a binding term of the limited waterproofing contract, especially considering other parties did some work and there were issues with water penetration.
Finally, concerning the argument about considering post-contractual documents and conduct for partly oral contracts, the judge found that the Tribunal and Appeal Panel had indeed considered such evidence appropriately. The judge confirmed that documents coming into existence after a contract is formed can’t technically be part of the initial contract, but they can still shed light on what was agreed.
In the end, Justice Stern concluded that none of the homeowners’ proposed grounds for appeal were strong enough to warrant granting leave to appeal. The judge stated that their contentions didn’t go beyond “merely arguable” and there was no “reasonably clear injustice” or “matter of public importance” that required a further appeal. Therefore, leave to appeal was refused, and the homeowners were ordered to pay the building company’s costs.
Q&A
- Is it illegal to have a building contract that isn’t fully written down?
Not illegal, but the Home Building Act 1989 (NSW) requires residential building contracts to be in writing and signed. If a contract isn’t in writing, a builder might not be able to claim damages or enforce other remedies for a breach by the homeowner. - Can a builder still be paid for work if the contract wasn’t properly written?
Yes, if there’s an arrangement or an implied contract where the homeowners agreed to reimburse the builder for expenses incurred for their benefit, even if it’s not a formal residential building contract. - What is a “set-off” in a building dispute?
A set-off is when one party owes money to another, but also has a valid claim for money from that other party. Instead of paying each other separately, the amounts can be balanced out. In this case, the builder’s costs incurred for the homeowners were set off against the damages owed to the homeowners for defective work. - Do all building services, like recommending subcontractors and ordering materials, fall under the strict rules of the Home Building Act?
Not necessarily. An “arrangement” for assistance, like recommending subcontractors or using a trade account for materials, might be considered a separate contractual agreement not directly regulated by the Home Building Act as a “residential building contract.” - If I make a concession in court or tribunal about owing money, can that be used against me even if I later argue the basis was wrong?
Yes, factual concessions about amounts owed can be relied upon by the court or tribunal, even if you later try to argue the specific contractual context you initially linked them to was rejected. - If a builder promises a waterproofing certificate, but doesn’t provide it, is that always a breach of contract?
Not automatically. You need to prove that providing the certificate was a specific term of the contract, especially if the builder only did a limited part of the waterproofing work and other factors might have affected the integrity of the waterproofing. - Can documents or actions that happen after a contract is supposedly made still influence how a court understands the contract?
Yes, for contracts that aren’t entirely in writing (partly oral, partly written, partly by conduct), post-contractual conduct, admissions, and business records can be used as objective evidence to figure out what the parties actually agreed. - Is it hard to appeal a decision from the NCAT Appeal Panel to the Supreme Court?
Yes, it’s quite difficult. You generally need to get “leave” (permission) to appeal, and it’s usually only granted for clear “questions of law,” not just disagreements about the facts of the case. - What’s the difference between a “question of law” and a “question of fact” in an appeal?
A “question of law” is about how the law was interpreted or applied. A “question of fact” is about whether the evidence proved something happened. Appeals to higher courts, like the Supreme Court from NCAT, are generally limited to questions of law. - If I’m an owner-builder, do I have the same protections as someone hiring a licensed builder for everything?
Being an owner-builder means you take on the primary responsibility for the work, and arrangements you make for assistance might be viewed differently than a contract with a fully licensed builder for all works under the Home Building Act. - Can a builder issue a waterproofing certificate if they only did part of the work or if other trades interfered with it?
It might not be proper or reasonable for a builder to issue a certificate for work they didn’t fully complete or if other factors impacted the integrity of the work, especially without expert evidence supporting it. - What happens if a building contract doesn’t have a clear scope of work defined?
If the precise scope of work isn’t discussed or agreed, it can make it much harder to prove specific contractual obligations, like providing a particular certificate. - If my lawyer makes a concession in court, am I bound by it?
Yes, generally, clients are bound by the conduct and concessions of their legal counsel during court proceedings. - Does the Home Building Act 1989 (NSW) prevent a builder from being reimbursed for expenses they paid on my behalf under a separate arrangement?
No, if the reimbursement is for a separate contractual obligation (like an arrangement to order materials) and not a remedy for a breach of a residential building contract that failed to comply with the Act, then the Act’s restrictions on enforceability might not apply. - What should I do to protect myself when engaging a builder or asking for their assistance with renovations?
Always ensure that any agreement, especially for residential building work, is clearly documented in a written contract, signed by all parties, and complies with all requirements of the Home Building Act 1989 (NSW) to avoid disputes later on. Even for informal assistance, clarify reimbursement terms in writing.
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