NCAT Appeal Panel Decisions Digest Issue 7 of 2023 | The NCAT Appeal Panel Decisions Digest provides monthly keyword summaries of decisions of the NSW Civil and Administrative Tribunal (NCAT) Internal Appeal Panel.
This issue features summaries of the following Appeal Panel decisions handed down in July 2023:
icare NSW v Webb [2023] NSWCATAP 192: An Appeal Panel granted leave to appeal, allowed the appeal and set aside a summons to attend and give evidence where the sole identified purpose of the summons could not assist the Tribunal in its determination of the remaining issues at first instance.
Beechwood Homes (NSW) Pty Ltd v Hassos [2023] NSWCATAP 184: An Appeal Panel allowed an appeal in part and remitted for determination a claim for loss of rental income according to the correct legal principle – an assessment of the income the owner would have obtained, less the expenses that would have been incurred in renting the property. As to the balance of the appeal, the appellant, which was legally represented, was bound by the strategic decisions it made at first instance; it was unable to establish any exceptional circumstances which would save it from being bound by the manner in which it ran its case.
Levande Pty Ltd v Brady [2023] NSWCATAP 193: An Appeal Panel allowed an appeal in part, setting aside an order of the Tribunal which purported to vary the terms of the respondent’s residential village contract. The respondent had not sought the variation at first instance and the original terms of the contract did not conflict with the Retirement Villages Act 1999 (NSW) (RVA) or its regulations – there was no legal basis for the order. The appeal was otherwise dismissed, with the Appeal Panel considering the proper interpretation and application of ss 60-62 and 93 of the RVA.
Betlem v JHA Australia Group Pty Ltd [2023] NSWCATAP 196: An Appeal Panel remitted the matter to a differently constituted Tribunal where the Tribunal had constructively failed to exercise its jurisdiction. The Tribunal’s reasons did not disclose adequate engagement with the appellant’s evidence and submissions, and failed to demonstrate an understanding of the relevant issues raised by the claims.
Each case title is hyperlinked to the full decision available on NSW Caselaw. | | | 1. Does the power to dismiss proceedings which are “lacking in substance” in s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) include proceedings which would be of no practical effect?
Davis v NSW Minister for Health [2023] NSWCATAP 211 Administrative and Equal Opportunity Division Armstrong J, President; A Britton, Deputy President
In sum: A finding that proceedings “would be of no practical effect” may justify a conclusion that proceedings are “lacking in substance” for the purpose of s 55(1)(b) of the NCAT Act. Whilst the terms “vexatious” and “lacking in substance” are not interchangeable for the purpose of s 55(1)(b), there are proceedings which may be properly described as both vexatious and lacking in substance, because any “success” would be of no practical effect. In determining whether to exercise the discretion to dismiss the proceedings after finding that the proceedings are lacking in substance, the Tribunal is obliged by s 36(2) of the NCAT Act to consider the consumption and diversion of NCAT’s resources.
Facts: The appellant (Ms Davis) was an enrolled nurse who made an application for administrative review of the respondent’s (Minister) direction contained in the Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021 (NSW). The order was subsequently repealed and the Minister made three consecutive orders under s 7 of the Public Health Act 2010 (NSW), the last of which expired on 19 June 2022. Additionally, on 12 November 2021, the Secretary of the NSW Ministry of Health issued a determination under s 116A(1) of the Health Services Act 1997 (NSW), which required employees of NSW Health to have received at least one dose of a COVID-19 vaccine by 12 November 2021 and two doses from 30 November 2021. Ms Davis’ employment was terminated on 8 December 2021 after failing to provide evidence of vaccination. On remittal from a decision of an Appeal Panel in Davis v Minister for Health [2022] NSWCATAP 115, which determined that NCAT had the power to review the direction, the Minister made an application for dismissal of the proceedings on the basis that there was no longer any operative order affecting Ms Davis. The Tribunal dismissed the proceedings under s 55(1)(b) of the NCAT Act, being “lacking in substance”.
Held (refusing leave to appeal): (i) Ms Davis argued that the Tribunal had erred in its interpretation of s 55(1)(b) of the NCAT Act in determining that the proceedings were lacking in substance based on a finding that the proceedings “would be of no practical effect”. Noting that the phrase “lacking in substance” was required to be construed in the context of the NCAT Act, the Appeal Panel regarded authorities considering the phrase in other statutory contexts to be of little assistance. With regard to the breadth of NCAT’s jurisdiction, the type of proceeding may be relevant when considering the meaning of the phrase “lacking in substance”. The Appeal Panel held that, whilst “lacking in substance” can mean proceedings where there is a finding that the claim or application is based on an “untenable proposition of fact or law” or “is not reasonably arguable”, there may be other findings which might justify a conclusion that the proceedings are lacking in substance. A finding that proceedings “would be of no practical effect” may also justify the conclusion (at [21], [30], [50], [51]-[52], [53]-[54]).
(ii) The Minister submitted that the use of the word “otherwise” in s 55(1)(b) of the NCAT Act reveals that proceedings that are “frivolous or vexatious” fall within the broader category of proceeding which are “misconceived or lacking in substance”. The Appeal Panel rejected the Minister’s submission that the terms “vexatious” and “lacking in substance” are interchangeable for the purpose of s 55(1)(b), although acknowledged that some proceedings could properly be described as being both vexatious and lacking in substance. Here, the Tribunal could also have dismissed the proceedings on the basis that they had become vexatious (although not intended to be) or misconceived, because any “success” would be of no practical effect (at [25], [48], [49], [54]).
(iii) Exercising the power to dismiss proceedings under s 55(1)(b) of the NCAT Act is a two-step process which requires the Tribunal to: (1) decide whether the proceedings are “frivolous or vexatious or otherwise misconceived or lacking in substance”, and (2) if the answer is yes, decide whether to exercise the discretion to dismiss those proceedings. The Appeal Panel rejected Ms Davis’ contention that, in determining whether the proceedings were “lacking in substance”, the Tribunal had impermissibly taken into account the likely cost to NCAT’s time and resources and conflated the two-step process in exercising the discretion. In fact, after concluding that the proceedings were lacking in substance, the Tribunal considered the factors identified by the parties as relevant to the exercise of its discretion under s 55(1)(b) and determined that the consumption and diversion of NCAT’s resources weighed in favour of exercising the discretion. Such a consideration was not only open to the Tribunal, but an obligation under s 36(2) of the NCAT Act (at [86], [79], [87], [89]). |
2. What principles apply in an application to set aside a summons to attend and give evidence?
icare NSW v Webb [2023] NSWCATAP 192 Administrative and Equal Opportunity Division A Suthers, Principal Member
In sum: A summons to attend and give evidence must be issued for a legitimate forensic purpose – the onus is on the issuing party to demonstrate that purpose. As an instance of the Tribunal’s power to regulate its processes, the Tribunal may exercise its discretion to set aside a summons where it is demonstrated that it may have been issued for an improper, illegitimate or ulterior purpose.
Facts: The respondent (Ms Webb) made an application under the Government Information (Public Access) Act 2009 (NSW) to the appellant for information held by it concerning an organisation called the NSW Information and Privacy Practitioners Network (NIPPN). An employee of the appellant sent an email to Ms Gibbs-Steele, the Chair of NIPPN (who was also the Privacy Officer for the appellant) consulting her on the release of the information. The email included a reference that it was Ms Webb who had submitted the application. Ms Webb alleged breach of information protection principle 11 and applied to NCAT for a review of the conduct of the appellant under the Privacy and Personal Information Protection Act 1998 (NSW). On 5 December 2022, Ms Webb applied for summonses to attend and give evidence to be issued, including to Ms Gibbs-Steele. The Registrar issued the summons. On 12 January 2023, the appellant applied to set aside the summons on the basis that it lacked a legitimate forensic purpose; on 17 March 2023, the Tribunal declined to set aside the summons. On 21 March 2023, the appellant renewed its application, which the Tribunal again refused. The appellant appealed from this second refusal on the basis that the Tribunal had failed to identify a legitimate forensic purpose for the summons.
Held (allowing the appeal): (i) The Appeal Panel raised with the parties the issue of whether the appeal was arguably moot, in circumstances where the summons required the attendance of Ms Gibbs-Steele on 18 January 2023, which date had already passed, with the potential result that there may be no practical consequence if the summons had no ongoing effect. The general rule is that moot appeals should not be entertained, however, that rule is not inflexible in its application (at [24], [25]).
(ii) Ms Webb confirmed that she maintained Ms Gibbs-Steele should be compelled to attend and give evidence, which would make a request to issue a new summons inevitable should the Appeal Panel dismiss the appeal on the basis that it was moot. Further, the appellant correctly raised that the proforma terms of the summons required Ms Gibbs-Steele’s attendance, which “must continue … from day to day … [u]ntil the hearing of the proceedings are completed”. The Appeal Panel was not persuaded that a summons would compel a witness to attend on a continuing basis where a matter is adjourned to a date only to be fixed at a later stage. Despite this, in the absence of argument on the issue, the Appeal Panel proceeded on the basis that it does. Further, the Appeal Panel considered that the Tribunal’s interlocutory decision effectively constituted a refusal to excuse Ms Gibbs-Steele and so she should consider herself bound by the summons on that basis (at [28], [26], [30], [33]).
(iii) The Appeal Panel noted that the onus is on the issuing party to identify a legitimate forensic purpose or the summons may be set aside. That power to set aside is an element of the Tribunal’s power to regulate its processes and intervene in cases of abuse of process. The Court of Appeal’s decision in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145, which set out the principles regarding the requirement for subpoenas to produce to have a legitimate forensic purpose, could be applied with appropriate adjustment to a summons to attend and give evidence. Thus, a summons will generally not be an abuse of process if the potential witness’ evidence is likely, in some way, to add to the relevant evidence on an identified issue. Where it is demonstrated that the summons has been issued for an improper, illegitimate or ulterior purpose, the Tribunal may exercise its discretion to set aside the summons as an abuse of process (at [34]-[35], [39]).
(iv) The Appeal Panel heard the appeal by way of rehearing after granting leave to appeal from the Tribunal’s interlocutory decision in circumstances where the appeal raised an issue of general importance which had received little recent judicial attention. The Appeal Panel found that the sole forensic purpose of the summons as identified by the Tribunal was to enable Ms Webb to question in what capacity Ms Gibbs-Steele received the information from the appellant. However, there was no identified way in which such questioning could assist the Tribunal in its determination of the remaining issues at first instance. On that basis, the Appeal Panel allowed the appeal and set aside the summons to Ms Gibbs-Steele (at [71]-[72], [73]-[75]).
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3. Do strategic decisions made at first instance bind a legally represented party on appeal?
Beechwood Homes (NSW) Pty Ltd v Hassos [2023] NSWCATAP 184 Consumer and Commercial Division - Home Building K Ransome, Senior Member; G Sarginson, Senior Member
In sum: A legally represented party will be bound by the decisions it makes in the conduct of its case, save in exceptional circumstances. Where a legally represented party makes a strategic decision not to address some evidence led by the other party, there is no denial of procedural fairness or practical injustice, except that which is self-inflicted.
Facts: A dispute arose between the respondent (owner) and the appellant (builder) regarding defective works in the construction of a residential premises. The Tribunal awarded damages to the owner for the cost of rectifying the defective works performed by the builder in breach of the statutory warranties in s 18B of the Home Building Act 1989 (NSW) and for loss of rental income (rental damages claim).
Held (allowing the appeal in part): (i) The builder sought to challenge the Tribunal’s decision to admit further evidence from the owner regarding the rental damages claim outside the timetable for evidence. The Appeal Panel noted that, in its submissions at first instance regarding the late evidence, the builder made a strategic decision to merely assert that the owner’s evidence should not be admitted because of non-compliance with the timetable. The builder did not make submissions regarding the late evidence in the event that it was admitted by the Tribunal. Equally, the builder did not seek an extension of time to file and serve evidence in response, seek an oral hearing for the rental damages claim or seek a re-listing before the Tribunal. The Appeal Panel followed the principle set out in Williams v McFarlane [1996] NSWCA 559 at 3-5, that a party that is legally represented is bound by its strategic decisions in the manner it runs its case, save in the exceptional circumstance of mistake, omission or incompetence leading to a serious miscarriage of justice. The builder was bound by its strategic decision – there was no denial of procedural fairness and no practical injustice other than that which was self-inflicted (at [99], [104]-[108]).
(ii) Separately, the builder sought to challenge the Tribunal’s assessment of damages for the rental damages claim on the ground that the Tribunal had failed to make any deduction for expenses and tax obligations. The Appeal Panel found that whilst the builder did not make submissions or adduce evidence in response to the further evidence relied on by the owner in the rental damages claim, the builder did oppose the claim itself. The Tribunal was required to apply the correct legal principle to assess the claim. In circumstances where the owner was seeking expectation loss damages, the correct legal principle to apply was to assess the income the owner would have obtained, less the expenses she would have incurred in renting the property – her net profit: Commonwealth v Amman Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54 at [24]-[28]. The Appeal Panel remitted the matter for assessment of the rental damages claim (at [6(3)], [123]-[125], [146]-[150]).
| 4. Who bears the onus and what are the evidentiary requirements under s 93 of the Retirement Villages Act 1999 (NSW) (RVA)?
Levande Pty Ltd v Brady [2023] NSWCATAP 193 Consumer and Commercial Division - Retirement Villages G Sarginson, Senior Member; P Molony, Senior Member
In sum: Whilst the factors set out in s 93(1)(a)-(c) of the RVA are mandatory considerations, it is sufficient to have regard to each of the factors. The weight, significance and/or relevance ascribed to those factors is dependent on the circumstances of the case. There is no obligation on the Tribunal to make findings with respect to each factor. Further, whilst the onus is on the resident to establish the operator’s breach of s 93 of the RVA, the resident is not required to adduce evidence about each of the factors – such a requirement is inconsistent with the purpose of the provision and the balancing of rights and obligations in the RVA.
Facts: The respondent (resident) resides in an independent living unit in a residential village operated by the appellant (operator), which also included serviced apartments located in a separate building (serviced apartment building). In early 2022, the serviced apartment building was damaged by heavy rain, which revealed “extensive to severe” termite damage. From about March 2022, the operator commenced relocating residents from the serviced apartment building. On 30 August 2022, the operator filed a development application to demolish the serviced apartment building. The resident commenced proceedings in NCAT, asserting that the operator was not maintaining the village and instead was allowing it to fall into disrepair with a view to redevelop or sell the village. The resident argued that the operator was obliged to repair the serviced apartment building under ss 62 and 93 of the RVA, with its failure to repair constituting an unlawful variation of services or facilities under s 62 of the RVA. On 7 November 2022, the Tribunal made orders including that the operator: rectify the roof and termite damage; and convene a meeting of the residents to consider whether they consented to the serviced apartment building being closed and, if so, whether they consented to any resulting variation in services provided by the operator.
Held (allowing the appeal in part): (i) The operator submitted that the Tribunal did not consider the mandatory considerations in s 93(1) of the RVA. Section 93 creates an obligation on the operator to maintain the serviced apartment building in a reasonable condition, with regard to the factors set out in s 93(1)(a)-(c), qualified by s 93(2). The practical effect of the section meant that the serviced apartment building either needed to be repaired or, if it fell within the discretion of the operator in s 93(2), replaced, within a reasonable period of time. Whether the operator failed to maintain the serviced apartment building is a question of fact. The operator neither repaired nor replaced the building – moving services and facilities to another part of the village did not meet the obligation in s 93, and the operator expressed no intention to reconstruct an equivalent building as a replacement. The Appeal Panel held that it is sufficient if the Tribunal has regard to the factors in s 93(1)(a)-(c), but the weight, significance or relevance ascribed to those factors is dependent on the particular circumstances of the case. A reading of the Tribunal decision as a whole makes clear that the Tribunal took into account each of the factors (at [75(2)], [82]-[88], [89]-[90], [97], [102]).
(ii) The operator also argued that the Tribunal had reversed the onus of proof under s 93 of the RVA by requiring the operator to provide evidence and prove it was not in breach of s 93. The Appeal Panel held the proper interpretation of s 93(1) does not require a resident who asserts a breach to adduce evidence about each of the factors in (a)-(c), nor does it require the Tribunal to make factual findings on each factor. It would lead to manifestly illogical and unreasonable outcomes if a resident was required to prove each of the factors; it would be fundamentally inconsistent with the statutory purpose of s 93 in the context of balancing the rights and obligations of operators and residents in a retirement village. The Appeal Panel did not accept that the Tribunal had reversed the onus of proof – the Tribunal was cognisant that the resident bore the onus in proving the operator’s breach of s 93(1) of the RVA, and given the evidence as to substantial termite and water ingress damage, the Tribunal had sufficient evidence to be satisfied that the operator had breached its obligation (at [75(1)], [103]-[105], [106]-[110]).
(iii) The operator claimed that the closure of the serviced apartment building was not a withdrawal or variation of a service or facility within the meaning of ss 60-62 of the RVA because there was no practical reduction in services or facilities. However, the serviced apartment building clearly fell within the plain meaning of a “facility”, being a building designed for a specific purpose. Any attempt to read down the statutory reference to “facilities” by reason of a clause in the village contract (that referred specifically to some facilities) would have the effect of contracting out of the relevant provisions of the RVA. The building, rather than the services operating from it, is a “facility” within the meaning of ss 60 and 62 of the RVA. The failure to repair and eventual closure of the building was a “variation” – because it “reduced” the facility – and then a “withdrawal” of the facility, and in the alternative, a “change” in the facility (at [119], [120], [126], [128], [131]-[133]).
(iv) The Appeal Panel set aside the order of the Tribunal which purported to vary the terms of the owner’s village contract. The order was not sought by the owner nor raised at hearing; it was unnecessary and without a legal basis, as the Tribunal had not established that the existing terms conflicted with the RVA or its regulations. The Appeal Panel otherwise dismissed the appeal (at [150]-[155]). | 5. Constructive failure to exercise jurisdiction
Betlem v JHA Australia Group Pty Ltd [2023] NSWCATAP 196 Consumer and Commercial Division - General G Blake AM SC, Senior Member; M Gracie, Senior Member
In sum: The Tribunal failed to demonstrate in its reasons an understanding of the relevant issues raised in the appellant’s case or to engage properly with some of her evidence and submissions. As a result, the Appeal Panel found that the Tribunal had constructively failed to exercise its jurisdiction and remitted the matter to the Tribunal, differently constituted, for determination.
Facts: The appellant (owner) engaged the respondent (JHA) to provide engineering consultancy services for the construction of a residential dwelling. On 9 August 2022, the owner accepted JHA’s quote to provide engineering plans for the premises. On 16 June 2022, the owner lodged an application in NCAT claiming breach of contract and “misleading information”. The owner argued that JHA had provided misleading and incorrect information on the design of screw pier footings and refused to redo its design when its design failed. The owner contended that in doing so, JHA breached its contract with the owner. The Tribunal found that the owner had failed to prove her claims and dismissed her application; the owner appealed.
Held (allowing the appeal): (i) The complex technical issues raised by the claims were not addressed by the Tribunal in its reasons. Despite a finding that there was a lack of “expert or other cogent evidence”, the Tribunal did not identify what was required to be determined by way of expert or other evidence, and gave an impression it was dismissive of the owner’s evidence because she “chose, impermissibly, to be her own expert”. Even if there was no expert evidence, there was sufficient evidence that the Tribunal should have considered and evaluated, including the independent views of the structural and geotechnical engineers that screw piling was inappropriate for the site. The Tribunal had not fully assessed or evaluated the owner’s evidence in a manner that demonstrated an adequate process of reasoning to have dismissed the owner’s claim on the basis that she had failed to discharge her onus of proof to the balance of probabilities (at [67], [72]-[78], [87]).
(ii) A further question of law raised by the appeal was whether there had been a denial of procedural fairness. The owner argued that she had been denied a reasonable opportunity to be heard, with “constant interruptions, ambiguous questions and bullying” during the hearing and that the Tribunal was biased and discriminated against her based on her disabilities. The appellant experienced significant difficulties in presenting her case, in part caused by the Tribunal’s apparent frustration in being unable to understand the significance or relevance of some of the owner’s evidence and submissions, as well as the lack of a functioning hearing loop. The Appeal Panel found that the Tribunal either did not listen to or did not understand some of the owner’s submissions. Despite being a technical matter highly suited to expert evidence, the absence of that evidence did not obviate the need for the Tribunal to carefully consider all of the evidence and submissions put by the owner.
(iii) The Tribunal’s reasons did not demonstrate a clear understanding or engage with proper consideration of a major part of the owner’s case, which amounted to a constructive failure to exercise jurisdiction. As a result, it was not necessary for the Appeal Panel to make a finding as to whether there was a denial of procedural fairness or discrimination against the owner. The Appeal Panel remitted the matter to a differently constituted Tribunal, noting the concerns raised by the owner and the principles set out in Chapman v Nicolosi (No 2) [2023] NSWCATAP 73 at [5]-[26]. Given the complexity of the issues and the Tribunal’s comments about the desirability of expert evidence, the Appeal Panel noted that the parties should be permitted to adduce further evidence for the remitted hearing (at [42], [46], [79]-[86], [88], [91]).
| | | NSW Self Insurance Corporation v EEH [2023] NSWCATAP 181 Administrative and Equal Opportunity Division Decision of: Robertson, Senior Member; R Dubler SC, Senior Member Catchwords: ADMINISTRATIVE LAW – Privacy and Personal Information Protection Act 1998 (NSW) – Personal information contained in settlement deed – Appellant responsible for administering payments made under settlement deed in respect of workers compensation claims although not a party to the deed – Deed must be read as a whole – Not appropriate to seek to distinguish between personal information relevant to resolution of workers compensation claims and administration of payments in respect of those claims and other personal information contained in the deed – Appellant did not breach IPPs 1, 2 and 5 by receiving and holding the personal information in the deed | Finch v Huang [2023] NSWCATAP 182 Consumer and Commercial Division Decision of: S Westgarth, Deputy President Catchwords: Costs of appeal- late withdrawal and dismissal of appeal-special circumstances-stay granted on conditions- cost of temporary fence | YCS v YCW [2023] NSWCATAP 183 Guardianship Division Decision of: A Britton, Deputy President; L Organ, Senior Member; F Given, Community Member Catchwords: APPEALS – no evidence to support findings of fact – material which Tribunal may take into account – whether finding of fact is “illogical” "irrational" GUARDIANSHIP – Tribunal – requirement for Guardianship Division of NCAT to give written reasons for decision – adequacy of reasons for making of a decision to revoke enduring power of attorney GUARDIANSHIP – nature of obligation for the Guardianship Division of NCAT to have regard to the views of the subject person APPEALS – NCAT – factors relevant to granting leave to appeal from a decision made by the Guardianship Division of NCAT under s 80(2) Civil and Administrative Tribunal Act 2013 (NSW) | Beechwood Homes (NSW) Pty Ltd v Hassos [2023] NSWCATAP 184 Consumer and Commercial Division - Home Building Decision of: K Ransome, Senior Member; G Sarginson, Senior Member Catchwords: APPEALS---Building and construction---Home Building Act 1989 (NSW)---Contract---Damages---Loss of ability to rent dwelling---Loss of profit---Principles applicable to assessment of damages | Setyadi v Khoo [2023] NSWCATAP 185 Consumer and Commercial Division - Residential Tenancy Decision of: P Durack SC, Senior Member; D Charles, Senior Member Catchwords: LEASES AND TENANCIES-residential tenancy-renewal proceedings-compensation for breach of quiet enjoyment right following work orders made by the Tribunal and incorrect claims for rental arrears-rent reduction order. APPEALS-no foundation for procedural unfairness contention-factual conclusions reasonably open to the Tribunal-no point of principle or other grounds for exercise of discretion to grant leave to appeal | EEC v Federation Council [2023] NSWCATAP 186 Administrative and Equal Opportunity Division Decision of: I R Coleman SC ADCJ, Principal Member; C Mulvey, Senior Member Catchwords: APPEAL- COSTS- whether appellant should be ordered to pay respondent’s costs of hearing date where appellant abandoned original grounds of appeal at hearing of appeal- whether appellant’s abandoned grounds of appeal lacked tenable basis in fact or law | Makkar v Solar Power Nation Pty Ltd [2023] NSWCATAP 187 Consumer and Commercial Division - Home Building Decision of: C Titterton OAM, Senior Member; P H Molony, Senior Member Catchwords: APPEALS – new evidence not allowed as reasonably available at time of hearing – expert evidence – tradesman’s report containing bare assertion to be given no weight – leave to appeal refused | Brahmbhatt v Osorio [2023] NSWCATAP 188 Consumer and Commercial Division - Residential Tenancy Decision of: G Ellis SC, Senior Member; D Fairlie, Senior Member Catchwords: APPEAL – No question of principle | | Starr v Johnston [2023] NSWCATAP 190 Consumer and Commercial Division - Motor Vehicles Decision of: G Blake AM SC, Senior Member; D Fairlie, Senior Member Catchwords: APPEALS — Procedural fairness — Adequacy of reasons --- Whether a total failure of consideration | Shariful v Freitas [2023] NSWCATAP 191 Consumer and Commercial Division - Residential Tenancy Decision of: P Durack SC, Senior Member; D Charles, Senior Member Catchwords: LEASES AND TENANCIES - residential tenancy -unlawful termination by landlord before tenants took possession-award of damages for inconvenience, distress and disappointment-challenge to size of the award. APPEALS - no question of law-size of the award involved an evaluative conclusion in respect of which a range was permissible-size of the award was not manifestly excessive- short extension of time to lodge appeal granted - leave to appeal refused | icare NSW v Webb [2023] NSWCATAP 192 Administrative and Equal Opportunity Disvision Decision of: A Suthers, Principal Member Catchwords: APPEAL – from refusal to set aside summons to a potential witness in privacy proceedings – requirement for agency to consult in application for release of information under the Government Information (Public Access) Act 2009 (NSW) - nature of claimed legitimate forensic purpose for person consulted to give evidence under summons | Levande Pty Ltd v Brady [2023] NSWCATAP 193 Consumer and Commercial Division - Retirement Villages Decision of: G. Sarginson, Senior Member; P. Molony, Senior Member Catchwords: APPEALS---Leases and tenancies---Legislation protecting tenants---Retirement Villages Act 1999 (NSW)---Item of capital---Duty to maintain or replace---Facility---Withdrawal or variation of facility---Meaning of facility---Meaning of variation | A L Lindsay & Co Pty Ltd v Stickel [2023] NSWCATAP 195 Consumer and Commercial Division - Residential Tenancy Decision of: G Sarginson, Senior Member; M Gracie, Senior Member Catchwords: LEASES AND TENANCIES---Residential Tenancies Act 2010 (NSW)---Rent reduction---Withdrawal or reduction of facilities---Failure to repair---Quantum of rent reduction---Applicable principles –Questions of law--leave to appeal—reasons inconsistent with orders--remitter | Betlem v JHA Australia Group Pty Ltd [2023] NSWCATAP 196 Consumer and Commercial Division - General Decision of: G Blake AM SC, Senior Member; M Gracie, Senior Member Catchwords: APPEAL — NCAT— appeal from decision of Consumer and Commercial Division of NCAT – absence of expert evidence - questions of law – whether Tribunal’s reasons were adequate – whether denial of procedural fairness – whether constructive failure to exercise jurisdiction – remittal of whole of the proceedings | Cohen v Gigliotti [2023] NSWCATAP 197 Consumer and Commercial Division - General Decision of: P. Durack SC, Senior Member; G. Burton SC, Senior Member Catchwords: CONSUMER LAW-acquisition of goods, being a mature tree for a garden –consumer guarantees in Australian Consumer Law (NSW) - whether tree supplied was in breach of contract or in breach of consumer guarantees of acceptable quality and fit for purpose - orders made at first hearing, without hearing on the merits, in relation to the supply of a different type of tree - renewal proceedings - leave to renew refused. APPEALS-extension of time to lodge appeal required – delay not inconsiderable – unsatisfactory explanation for delay - prospects of success of appeal to be considered - appeal from interlocutory order, albeit one that disposes of the proceedings - leave to appeal required – application of leave to appeal principles – correct interpretation of initial orders by Tribunal - no other interpretation reasonably open - Tribunal’s conclusions about circumstances surrounding renewal application reasonably open to it -Tribunal’s decision not attended by sufficient doubt - no substantial injustice where merits of claim considered by the Tribunal on the alternative basis that it ought to have granted leave to renew and no appellable error shown in respect of what were factual conclusions - no point of principle or other grounds for exercise of discretion to grant leave to appeal | | Barnes v Barot [2023] NSWCATAP 199 Consumer and Commercial Division Decision of: G. Sarginson, Senior Member; D. Charles, Senior Member Catchwords: LEASES AND TENANCIES---Residential Tenancies Act 2010 (NSW)---Denial of procedural fairness---Conduct of the hearing---Reasons---Adequacy of reasons | Huang t/as Auchland & Co v Fang and Luk [2023] NSWCATAP 200 Consumer and Commercial Division - General Decision of: S Westgarth, Deputy President; M Deane, Senior Member Catchwords: APPEALS – appeal from decision concerning a consumer claim for provision of services – time limit for accrual of jurisdiction – whether Tribunal has jurisdiction – advice given in breach of Australian Consumer Law – bias | Matysik v EBay Australia New Zealand Pty Ltd [2023] NSWCATAP 201 Consumer and Commercial Division - General Decision of: G Ellis SC Senior Member; P H Molony, Senior Member Catchwords: CONSUMER LAW — Jurisdiction — NSW Civil and Administrative Tribunal Consumer and Commercial Division — Jurisdiction and powers APPEALS — Further evidence not admitted — Evidence available at hearing – no question of law – leave to appeal refused | | GNZ Enterprises Pty Ltd v Orabi [2023] NSWCATAP 203 Consumer and Commercial Division - Motor Vehicles Decision of: S Thode, Principal Member; J Currie, Senior Member Catchwords: CONSUMER CLAIM – MOTOR VEHICLE — leave to appeal refused – whether decision not fair and equitable – whether decision against the weight of the evidence – no question of principle | Croll v Form and Colour Pty Ltd [2023] NSWCATAP 204 Consumer and Commercial Division - Home Building Decision of: A Bell SC, Senior Member; L Wilson, Senior Member Catchwords: APPEAL – Denial of procedural fairness – Failure to afford parties opportunity to cross examine APPEAL – Inadequacy of reasons APPEAL – Costs – Wrong test applied – Amount in dispute separate proceedings – Proceedings not consolidated | Riman v Smith [2023] NSWCATAP 205 Consumer and Commercial Division - Home Building Decision of: A Suthers, Principal Member Catchwords: COSTS – Where appeal withdrawn without explanation – orders at first instance by consent – whether capitulation – usual rule as to costs displaced by rr 38 & 38A Civil and Administrative Tribunal Rules 2014 (NSW) | | Tak Roofing Pty Ltd v Mickelson [2023] NSWCATAP 208 Consumer and Commercial Division - General Decision of: A Suthers, Principal Member Catchwords: COSTS – Where appeal withdrawn without explanation – whether capitulation – usual rule as to costs displaced by rr 38 & 38A Civil and Administrative Tribunal Rules 2014 (NSW) – insufficient evidence to consider costs order in a fixed sum
| Hunter Homes Pty Ltd v Layzell [2023] NSWCATAP 209 Consumer and Commercial Division - Home Building Decision of: G Blake AM SC, Senior Member; L Wilson, Senior Member Catchwords: APPEALS — Appeal on question of law – Scope of question of law APPEALS — Leave to appeal — Principles governing BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Building dispute – whether the builder was entitled to terminate the contract by reason the failure of the owner to provide information within the specified time CONTRACTS — Construction — Interpretation – standard form contract to which terms have been added – greater weight given to added terms in event of inconsistency CONTRACTS — Construction — Interpretation - where waiver must be in writing | Henderson v SafeWork NSW [2023] NSWCATAP 210 Administrative and Equal Opportunity Division Decision of: S Westgarth, Deputy President; Dr R Dubler SC, Senior Member Catchwords: APPEAL- consideration of the Respondents Guide containing a requirement for a minimum of two years relevant experience in the preceding two years- no question of law or a ground for the granting of leave | Davis v NSW Minister for Health [2023] NSWCATAP 211 Administrative and Equal Opportunity Division Armstrong J, President; A Britton, Deputy President Decision of: S Westgarth, Deputy President; Dr R Dubler SC, Senior Member Catchwords: APPEALS –– appeal from summary dismissal of administrative review application –– interlocutory decision of Tribunal requiring leave to appeal –– consideration of s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) –– “lacking in substance” –– leave refused ADMINISTRATIVE LAW –– application for administrative review of directions contained in a public health order –– where all four relevant public health orders had been repealed or expired prior to the hearing –– whether proceedings “futile”, “of no practical effect” or “lacking in utility” WORDS AND PHRASES –– meaning of “lacking in substance” | | DISCLAIMER: This publication has been prepared for information purposes only. The NCAT Appeal Panel Decisions Digest should not be relied on as legal advice nor is it a substitute for reading the decisions in full. NCAT does not accept any liability to any person for the information (or the use of the information) which is provided in this publication. |
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