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 September 2023: Promina Design & Construction Pty Ltd v The Owners—Strata Plan No 97449 [2023] NSWCATAP 252: An Appeal Panel granted leave to appeal but dismissed an appeal from a decision of the Tribunal to transfer proceedings to the District Court, where the claim under the Home Building Act 1989 (NSW) (HBA) exceeded NCAT’s jurisdictional limit. The Tribunal was not deprived of jurisdiction by operation of s 48K(3) of the HBA; the claim was a “building claim” arising from a breach of statutory warranties, which fell within the mutually exclusive category of claims provided for in s 48K(7). In any event, neither provision would operate to prevent the Tribunal from transferring the proceedings under Civil and Administrative Tribunal Act 2013 (NSW), Sch 4, cl 6.
Actol Pty Ltd v Rise Products Pty Ltd; Rise Products Pty Ltd v Actol Pty Ltd [2023] NSWCATAP 259: An Appeal Panel allowed an appeal from the Tribunal’s finding that the monetary jurisdictional limit was $100,000 under s 79S of the Fair Trading Act 1987 (NSW) (FTA). The Appeal Panel held that the increase in NCAT’s monetary jurisdictional limit for consumer claims under the FTA does not operate retrospectively for claims where the cause of action accrues, and proceedings are commenced, prior to the date of amendment. As a result, the monetary jurisdictional limit was $40,000.
Goodman v Commissioner for Fair Trading [2023] NSWCATAP 260: An Appeal Panel dismissed an appeal from a decision of the Tribunal which affirmed the Commissioner for Fair Trading’s decision to refuse the appellant a Qualified Supervisor Certificate under the Home Building Act 1989 (NSW). The appellant, a sole director, had failed to take all reasonable steps to avoid the company going into external administration. Further, his lack of candour and failure to disclose the external administration of his company in application forms demonstrated that he was not a fit and proper person to hold a Certificate.
Boehme v Castro t/as Mid North Coast Refrigeration & Air Conditioning [2023] NSWCATAP 263: An Appeal Panel refused leave to appeal from consent orders made by the Tribunal, even where there had been a mistake as to factual circumstances. There was no denial of procedural fairness or any other basis which would justify setting aside the consent orders.
Commissioner of Police, NSW Police Force v Arnold [2023] NSWCATAP 264: An Appeal Panel allowed an appeal and set aside the Tribunal’s orders where the Tribunal had made a number of fundamental and obvious factual errors. Substituting its own decision for the Tribunal’s, the Appeal Panel was not able to be satisfied that the respondent was a fit and proper person who could be trusted to have possession of firearms without danger to public safety or the peace, and affirmed the appellant’s decision to refuse the respondent a firearms licence.
Each case title is hyperlinked to the full decision available on NSW Caselaw. | | | 1. Does s 48K(3) of the Home Building Act 1989 (NSW) (HBA) impose a limitation on NCAT’s jurisdiction in respect of claims for breach of statutory warranties? | Promina Design & Construction Pty Ltd v The Owners—Strata Plan No 97449 [2023] NSWCATAP 252 Consumer and Commercial Division - Home Building D Robertson, Senior Member; E Bishop SC, Senior Member
In sum: Each of s 48K(3), (4), (6), (7) and (8) of the HBA stand independently and are intended to be mutually exclusive; the wide exclusion in s 48K(3) should be treated as not applicable to cases within the limited exclusion in s 48K(7). As a result, s 48K(3) will not operate to deprive the Tribunal of jurisdiction where the claim is for breach of statutory warranties. Even where one of the subsections applies to deprive the Tribunal of jurisdiction, the Tribunal may still make an order pursuant to cl 6 of Sch 4 to the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) transferring the proceedings to a court which will have jurisdiction to hear the claim.
Facts: A building dispute arose between the respondent (OC) and the appellant (builder). The OC made an application to NCAT pursuant to ss 18C and 18D of the HBA for breach of the statutory warranties in s 18B, seeking an amount “tba, estimated only at this stage $480,000” for “numerous defects”. On 3 February 2023, the OC sought an order that the proceedings be transferred to the District Court under cl 6 of Sch 4 to the NCAT Act, on the basis that the OC’s expert building/engineering consultant had concluded the claim would exceed $500,000. The builder opposed the transfer, arguing that s 48K(3) of the HBA, in providing that NCAT “does not have jurisdiction in respect of” the building claims described in the sub-section, operated to deprive the Tribunal of jurisdiction in respect of the OC’s claim such that the Tribunal did not have jurisdiction to make an order transferring the claim to the District Court. On 13 March 2023, the Tribunal ordered that the proceedings be transferred to the District Court. The builder appealed.
Held (granting leave to appeal; dismissing the appeal): (i) The OC conceded that the Tribunal erred in that its claim was clearly a “building claim”, but relied on s 48K(7) of the HBA as applying to the exclusion of s 48K(3). The Appeal Panel held that whilst the builder’s interpretation of s 48K(3) does not give s 48K(7) no work to do, it would give the sub-section substantially limited operation. The Appeal Panel held that, properly interpreted, each of s 48K(3), (4), (6), (7) and (8) stand independently and are mutually exclusive. Such an interpretation applies the maxim generalia specialibus non derogant: the general provision limiting NCAT’s jurisdiction in s 48K(3) does not limit NCAT’s jurisdiction in respect of the specific matters the subject of the limitation in s 48K(7). The wide exclusion in s 48K(3) should be treated as not applicable to cases within the limited exclusion in s 48K(7). Consequently, claims for breach of statutory warranty are not categorised as claims relating to building goods or services that have been supplied. The Tribunal was not deprived of jurisdiction by reason of s 48K(3) (at [34]-[37], [61]-[78]).
(ii) The builder contended that the Tribunal was required to classify each of the defects alleged by the OC as major or minor defects to determine whether it had jurisdiction under s 48K(7) of the HBA. The Appeal Panel considered that this argument conflated two issues: whether the Tribunal had jurisdiction to determine a claim in respect of a particular defect, and whether the Tribunal had jurisdiction to consider the claim as a whole. Unless none of the alleged defects were major defects, the Tribunal had jurisdiction (subject to the monetary limit) to determine the OC’s claim with respect to defects which are major defects. In determining whether the interests of justice require the transfer of the proceedings, the question is whether the material before the Tribunal suggests that there is a sufficient likelihood that NCAT will not have jurisdiction to determine the whole claim to warrant the transfer of the proceedings to a court which will have such jurisdiction (at [82], [86]-[90]).
(iii) Further, the Appeal Panel held that it is not necessary for the party seeking a transfer to a court, where its claim exceeds the jurisdictional limit, to first make a formal application to amend its case. Given the requirement that the Tribunal act, in accordance with s 38(4) of the NCAT Act, with as little formality as the circumstances of the case permit, the only essential step is a clear indication that a party seeks to maintain a claim which exceeds the monetary jurisdictional limit and sufficient evidence to establish that the claim is likely to exceed the limit. Evidence that goes beyond a mere assertion is necessarily required, but it would be inconsistent with the guiding principle to require the Tribunal to undertake a detailed examination of that evidence. Subject to any discretionary considerations arising from the party’s conduct of the proceedings, an order for transfer would ordinarily be appropriate so that the applicant may pursue the whole of its claim. The OC’s evidence was sufficient to establish, for the purposes of the transfer application, that its claim was likely to exceed the jurisdictional limit such that the transfer to the District Court was appropriate (at [91]-[103]).
(iv) Whilst not necessary to decide, given its conclusion that the Tribunal was not deprived of jurisdiction by operation of s 48K(3) or (7) of the HBA, the Appeal Panel considered whether, if the Tribunal was deprived of jurisdiction, it was nevertheless empowered to transfer the proceedings to a court. The Appeal Panel determined that it would be so empowered. The wording of s 48K(3), (4), (6), (7) and (8) does not explicitly deny the power to transfer proceedings to a court, pursuant to cl 6 of Sch 4 to the NCAT Act. Indeed, where NCAT does not have jurisdiction by virtue of one of those subsections, the interests of justice would suggest that the Tribunal should have power to transfer proceedings to a court which does have jurisdiction. Further, as set out by the Appeal Panel in Wilson v Chan & Naylor [2018] NSWCATAP 311 at [56] (not in issue in the subsequent appeals from this decision), Parliament conferred upon NCAT, through its enactment of cl 6 of Sch 4 to the NCAT Act, the power to transfer proceedings to a court, even where it does not have jurisdiction in respect of those proceedings (at [104], [127]-[138]). | 2. Does the amendment to NCAT’s monetary jurisdictional limit for consumer claims operate in respect of a cause of action which accrues, and where proceedings are commenced, prior to the commencement of the amendment? | Actol Pty Ltd v Rise Products Pty Ltd; Rise Products Pty Ltd v Actol Pty Ltd [2023] NSWCATAP 259 Consumer and Commercial Division - Home Building A Suthers, Principal Member; G Curtin SC, Senior Member
In sum: The amendment to NCAT’s monetary jurisdictional limit to increase the amount from $40,000 to $100,000 does not operate retrospectively where the cause of action accrues and the proceedings are commenced prior to the date that the amendment came into force, being 18 July 2022. The Appeal Panel did not make a finding as to how the amendment applied to proceedings where a cause of action accrues prior to 18 July 2022 but proceedings are commenced after that date.
Facts: Actol Pty Ltd (Actol) sought to develop land it owned by constructing four separate dwellings on the land. Actol engaged two companies to provide building services, including construction on the site using a prefabricated concreting formwork system (Risewall product) manufactured by Rise Products Pty Ltd (Rise). Actol alleged that the Risewall product used was defective and sought compensation for rectification, damages for delay in completion of the construction, and the repayment of an advance payment made by Actol to Rise for Risewall product that was not delivered. The Tribunal held that Rise contracted with Actol to supply, and not to install, the Risewall product. Actol’s claims for breach of consumer guarantees, misleading and deceptive conduct and compensation for delay in completion also failed. The Tribunal allowed Actol’s claim for compensation for its advance payment under s 79J of the Fair Trading Act 1987 (NSW) (FTA) and quantified the amount at $50,650.60. Although NCAT’s monetary jurisdictional limit for claims under the FTA was $40,000 at the time the proceedings were commenced, the Tribunal found that the subsequently amended limit of $100,000 was applicable and allowed this claim in full. Rise appealed against the Tribunal’s decision as to the monetary jurisdictional limit; Actol appealed against a number of findings and the Tribunal’s costs decision.
Held (allowing Rise’s appeal): (i) There is a common law presumption against construing a statute or regulation as operating retrospectively in the absence of clear legislative intention that it should do so. NCAT’s monetary jurisdictional limit was prescribed at $100,000 by the insertion of reg 13A in the Fair Trading Regulation 2019 (NSW) from 18 July 2022. The Fair Trading Amendment (Monetary Limit on Orders) Regulation 2022 (NSW) (MLO Regulation), which inserted reg 13A, contained no specific savings or transitional provisions (at [46], [40]-[43]).
(ii) The Appeal Panel held that the proper application of the MLO Regulation is derived from the nature of the change it effects. Actol’s rights under the FTA persisted irrespective of the amendment. However, the MLO Regulation altered the maximum amount that could be recovered in NCAT. To that effect, whilst no new right or liability is created or imposed by the amendment, existing rights would be altered if the amendment applied retrospectively to past events. The previous monetary jurisdictional limit provided Rise with partial protection from Actol’s claim, in that anything beyond the prescribed amount was not recoverable in NCAT, and instead would need to be contested in a court in a manner which complied with the rules of evidence. The effect of reg 13A could not be said to be merely procedural in light of this. This was reinforced by the absence of textual or contextual indicators in the MLO Regulation which suggest a parliamentary intention that reg 13A should operate retrospectively (at [56]-[62]).
(iii) As a result, the Tribunal was incorrect to find that $100,000 was the relevant monetary jurisdictional limit in this case, and the Appeal Panel ordered that Actol pay Rise the difference between the judgment sum and the jurisdictional limit of $40,000 that applied to these proceedings (at [24], [63]). | 3. What may constitute a failure to take reasonable steps to avoid external administration, as contemplated by s 33D of the Home Building Act 1989 (NSW) (HBA)? | Goodman v Commissioner for Fair Trading [2023] NSWCATAP 260 Occupational Division A Balla ADCJ, Principal Member; S Thode, Principal Member
In sum: A director, particularly a sole director and secretary, should take reasonable steps to make him or herself aware of the company’s financial obligations, including tax liabilities and debts. Where the director does not take such steps, and no evidence is adduced that the director had received any advice as to what could be done to avoid insolvency or external administration, it will be open to the Tribunal to find that the director did not take reasonable steps to avoid external administration.
Facts: The appellant (Mr Goodman) was the sole director and secretary of a construction management company (BCM), which was registered in August 2012. In October 2019, BCM ceased trading and on 27 November 2019, Mr Goodman surrendered BCM’s licence. In 2021, Mr Goodman received advice to apply for the winding up of BCM. On 3 May 2021, BCM appointed a liquidator and it was placed into external administration. On 16 November 2021, Mr Goodman applied to the Department of Fair Trading for renewal of his Qualified Supervisor Certificate under the HBA. On 30 June 2022, the respondent (Commissioner) issued a Refusal Notice. An Internal Review Determination on 7 September 2022 also refused to renew the Certificate. Mr Goodman applied to the Tribunal for review of the Commissioner’s decision. The Tribunal affirmed the decision; Mr Goodman appealed.
Held (dismissing the appeal): (i) Pursuant to ss 33B and 33D of the HBA, the Commissioner must refuse Mr Goodman’s application for the Certificate – as Mr Goodman was a director of BCM, which had been placed in external administration – unless the Commissioner is satisfied that Mr Goodman had taken all reasonable steps to avoid external administration. In determining the relevant time at which Mr Goodman was or should have been aware that BCM was faced with the possibility of bankruptcy or insolvency, the Appeal Panel held that it was open to the Tribunal to find that date was in 2019, when an application was made in the Supreme Court and two further applications were lodged in NCAT regarding alleged defective building work (at [19]-[23], [44]-[46]).
(ii) Mr Goodman argued that he had taken all reasonable steps to avoid external administration, and challenged a number of the Tribunal’s findings in that regard. With respect to BCM’s significant tax liabilities and failure to pay tax from 2015, the Appeal Panel held that, considering what a reasonable person endowed with the knowledge and experience of Mr Goodman would have done, Mr Goodman should have been aware of BCM’s tax liabilities. A director should take reasonable steps to make themselves aware of the company’s financial obligations. Similarly, it was open to the Tribunal to find that Mr Goodman had caused a loan transfer from BCM to one of its controlling entities which resulted in a debt to BCM of over $2 million. The Appeal Panel held that whilst Mr Goodman did not bear an onus to prove that he had received advice as to what he could have done to avoid BCM’s insolvency, if he wished to rely on evidence that he had received such advice then it was his responsibility to adduce evidence to that effect (at [52]-[54], [61]-[64], [68]-[69]).
(iii) Mr Goodman submitted that any omissions of BCM’s external administration in his application forms to the Commissioner were inadvertent. However, the forms completed made the obligation to disclose clear, and Mr Goodman’s explanation was inconsistent with the forms. There was no error in the Tribunal’s concern as to Mr Goodman’s lack of candour and failure to disclose. Mr Goodman’s failure to understand the requirement to disclose BCM’s external administration demonstrated that he did not have the necessary knowledge and ability to comply with the Certificate requirements and could not be regarded as a fit and proper person to hold the certificate (at [74]-[82]). | 4. Can a mistake as to factual circumstances justify the setting aside of consent orders? | Boehme v Castro t/as Mid North Coast Refrigeration & Air Conditioning [2023] NSWCATAP 263 Consumer and Commercial Division - Home Building D Robertson, Senior Member; K Ransome, Senior Member
In sum: A statement made on the basis of a factual error, in the context of settlement negotiations, where no final decision is reached on the evidence and the parties are not otherwise prevented from pursuing their claims, will not, without more, constitute conduct giving rise to an irregularity sufficient to justify the setting aside of a consent order. The Member’s conduct should be considered in the context of the obligations imposed by the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) and the manner in which those obligations were performed.
Facts: The appellant (Mr Boehme), as attorney for his father, brought a claim for repayment of $6,725.40, being the amount paid to the respondent (Mr Castro) for purchase and installation of a new air conditioning system which, by June and July 2022, had not been installed by Mr Castro. Mr Boehme had also been advised by NSW Fair Trading that Mr Castro’s licence to do the relevant work had expired. At the hearing, Mr Castro informed the Tribunal that he was licensed. The Member reviewed the NSW Fair Trading Licence Check website, which stated that Mr Castro’s licence had been suspended, but that the suspension had been lifted on 30 June 2021; the Member concluded that Mr Castro held the relevant licence at the time he entered the contract with Mr Boehme’s father. The Member noted that neither party was fully prepared for the hearing – having identified deficiencies in the evidence filed by both parties – and that a further hearing would be required. A negotiation followed and Mr Boehme accepted Mr Castro’s offer of payment of $5,500 within two weeks. The Tribunal made orders to that effect, reflecting the agreement between the parties.
Held (refusing leave to appeal): (i) The Tribunal was mistaken as to the status of Mr Castro’s licence and made a factual error in that regard. The Member was misled by the entry on the website which indicated that his licence had been reinstated on 30 June 2021. In fact, Mr Castro’s licence had expired on 18 December 2020 and had not been renewed prior to the Tribunal hearing. At issue was whether this factual error meant that the consent orders made by the Tribunal should be set aside, which raised a question of law (at [18]-[21]).
(ii) Mr Boehme argued that the factual error made by the Tribunal placed him in an unfair position during the negotiation of settlement. Noting the principles applicable to setting aside a consent order set out in previous Appeal Panel decisions, the Appeal Panel adopted the approach used in Aboriginal Housing Office v Harrison [2021] NSWCATAP 9 in assessing the Member’s conduct in the negotiation. That is, considering the Member’s conduct in the context of the obligations imposed by the NCAT Act and the manner in which those obligations were performed, in the broader context of the roles the Member is to perform. This includes promoting the use of resolution processes – although care must be taken by the Member to ensure that the Member does not act in such a way that would make it inappropriate for the Member to make orders in respect of any agreement or subsequent hearing on the merits – as well acting in accordance with the objects set out in s 3 of the NCAT Act and other procedural obligations (at [25]-[35]).
(iii) For a consent order to be set aside, some conduct must be identified which is in breach of these obligations and which would give rise to a substantial injustice which should be corrected. A statement made by the Member in the course of negotiation, where no final decision is reached on the evidence and the parties are not otherwise prevented from pursuing their claims, will not, without more, constitute conduct giving rise to an irregularity sufficient to justify the setting aside of a consent order. Whilst the Member strongly encouraged settlement in order to avoid delay and a further hearing in the context of unpreparedness by both parties, her conduct did not go beyond the bounds of what was reasonable and appropriate in the circumstances. The parties were told they could return another day when the evidence was finalised. Mr Boehme was not prevented from pursuing the full amount of his claim if he chose to do so, or denied an opportunity to be heard; the licence issue was a subsidiary matter. Even though the Member made a factual error, there was no denial of procedural fairness or any other basis which would justify setting aside the consent orders (at [36]-[47]). | 5. Where an applicant for a firearms licence denies conduct to which he has pleaded guilty and been sentenced, what is the impact on the Tribunal’s assessment of credibility and being a fit and proper person? | Commissioner of Police, NSW Police Force v Arnold [2023] NSWCATAP 264 Administrative and Equal Opportunity Division Dr R Dubler SC, Senior Member; E Bishop SC, Senior Member
In sum: The inconsistency arising from the applicant’s denial of conduct, which was the basis of the two counts of aggravated break and enter and commit serious indictable offence contrary to s 112(2) of the Crimes Act 1900 (NSW) (the two counts) to which he had pleaded guilty, should have raised doubt as to his credibility as a witness overall and to the assessment of whether he was a fit and proper person. In light of his further criminal and traffic records, the Appeal Panel could not be satisfied that the applicant was a fit and proper person who can be trusted with the possession of firearms without danger to public safety or the peace.
Facts: The appellant (Commissioner) made a decision to refuse to grant the respondent (Mr Arnold) a Category AB firearms licence on the basis that it was not in the public interest for him to hold a licence. Mr Arnold has a criminal record which includes the two counts, committed on 7 April 2009 (the two counts). The offences involved violence and intimidating behaviour towards his ex-wife and her then partner. Mr Arnold pleaded guilty to those charges and was sentenced to 9 months’ imprisonment. At the Tribunal hearing, Mr Arnold denied the offences in cross-examination. The Tribunal granted a licence to Mr Arnold, being satisfied that Mr Arnold’s past conduct did not give rise to a real and appreciable risk to public safety and that he was a fit and proper person who could be trusted to have possession of firearms without danger to public safety or the peace. The Commissioner appealed on the ground that the Tribunal misconstrued or failed to properly consider the evidence concerning Mr Arnold’s criminal conduct.
Held (allowing the appeal): (i) The Commissioner argued that the material tendered by it at first instance (including Mr Arnold’s criminal history recording his sentence for the offences, a Court Attendance Notice and a Police Facts Sheet, which set out the alleged facts of the offences) established that Mr Arnold had been sentenced for conduct which included two offences of intimidation after the breaking and entering, as part of the two counts for which he was convicted, rather than the conduct being mere allegations (at [41]-[43], [52]-[53]).
(ii) The Appeal Panel found that the Tribunal had made a number of fundamental errors, which were highly material to the Tribunal’s finding that Mr Arnold was a fit and proper person. Further, these errors were material to the Tribunal’s assessment of Mr Arnold’s credibility, in light of his denials in cross-examination as to the substance of the particulars of the two counts, to which he had pleaded guilty in 2009. The Tribunal’s factual findings were unreasonably arrived at and clearly mistaken; they were also central to the Tribunal’s conclusions. The Appeal Panel held that it would be unjust to allow the decision to stand, and set aside the Tribunal’s decision to grant the licence. The Appeal Panel determined, pursuant to s 81(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), to substitute its own decision after setting aside the Tribunal’s decision (at [56]-[67], [68]-[70]).
(iii) The Appeal Panel considered that the objective circumstances of the two counts involved serious violence towards Mr Arnold’s ex-wife and her partner, involving breaking through the glass of the front door to enter, assault his ex-wife twice, and assault and threaten her partner. The Appeal Panel preferred the evidence as established by the Police Facts Sheet, and noted that Mr Arnold’s attempts to deny the facts of the offending caused it to doubt his credibility as a witness and his general good character. Mr Arnold’s attempts to attribute some of his offending to his ex-wife cast real doubt on the sincerity of his expressions of remorse, demonstrating a lack of proper insight into his conduct and causing concern as to his likely future conduct with access to firearms in similar circumstances of personal stress (at [76]-[80]).
(iv) Similarly, the respondent’s previous criminal record involved violent conduct (some time ago) for which Mr Arnold sought to blame the influence of his then girlfriend. Mr Arnold’s traffic record included three quite serious offences he sought to downplay, and the offences demonstrated a lack of respect for the law and his obligations under it. Further, only one of Mr Arnold’s five character references referred to the two counts, which detracted from their force. Whilst Mr Arnold sought to emphasise that he had been granted full custody of his children some four years prior, without knowledge of what was before that decision-maker the Appeal Panel could not place significant weight on the decision. Ultimately, the Appeal Panel was not satisfied that Mr Arnold is a fit and proper person and could be trusted with the possession of firearms without danger to public safety or the peace. His history raised sufficient concerns about the risks posed by his behaviour and disregard for the law. In lieu of the Tribunal’s decision, the Appeal Panel affirmed the Commissioner’s decision (at [81]-[88], [93]-[94], [98]-[99], [100]-[105]). | | | Colourrender (Australia) Pty Ltd v Sarkis; Sarkis v Colourrender (Australia)Pty Ltd (No 2) [2023] NSWCATAP 250 Consumer and Commercial Division – Home Building Decision of: S Westgarth, Deputy President; G Sarginson, Senior Member Catchwords: COSTS – whether there should be costs orders of the proceedings at first instance following a remittal order – costs at first instance remitted – costs incurred in appeals where one party is predominately successful – costs order for two thirds of costs incurred – whether indemnity costs should be ordered or await the determination of the applications following the remittal | Middleton v Wrona (No 2) [2023] NSWCATAP 251 Consumer and Commercial Division – Home Building Decision of: M Harrowell, Deputy President; D Robertson, Senior Member Catchwords: COSTS – where appeal allowed in part – mixed success on separate issues – considerations relevant to order for costs where issues separate and mixed success | Promina Design & Construction Pty Ltd v The Owners—Strata Plan No 97449 [2023] NSWCATAP 252 Consumer and Commercial Division – Home Building Decision of: D Robertson, Senior Member; E Bishop SC, Senior Member Catchwords: BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) s 48K — Jurisdiction of the Civil and Administrative Tribunal — Claim for breach of statutory warranty — Section 48K(3) does not limit the Tribunal’s jurisdiction in respect of claims for breach of statutory warranty — Civil and Administrative Tribunal Act Schedule 4 clause 6 — Power of the Tribunal to transfer proceedings to a court — The Tribunal has power to transfer proceedings to a court even where the Tribunal has no jurisdiction in respect of the claim — Consideration of the circumstances in which it will be appropriate to order the transfer of proceedings | Gordon v Glowberth Pty Ltd [2023] NSWCATAP 253 Consumer and Commercial Division – Residential Tenancy Decision of: D Robertson, Senior Member; G Burton SC, Senior Member Catchwords: LEASES AND TENANCIES - Residential Tenancies Act 2010 (NSW) – Appellant claiming interest in property by virtue of special conditions in tenancy agreement and/or “concurrent agreement” – Claimed interest in property did not prevent termination of tenancy ADMINISTRATIVE LAW – Particular administrative bodies – NSW Civil and Administrative Tribunal – Procedural fairness – Proceedings listed for directions but Tribunal made orders determining the matter – No denial of procedural fairness where appellant was legally represented and its representative made no protest when the Tribunal indicated it proposed to determine the matter – Submissions filed by the appellant in accordance with directions had identified no legitimate basis of opposition to the orders sought | | Gibbons v Macutay [2023] NSWCATAP 255 Consumer and Commercial Division – Residential Tenancy Decision of: P Durack SC, Senior Member; D Ziegler, Senior Member Catchwords: LEASES AND TENANCIES – residential tenancy – proceedings in relation to rental bond and other claims by the tenant after the end of the tenancy – order made in earlier proceedings in favour of landlords for rental arrears – award of compensation to tenant for loss of quiet enjoyment resulting from repair and mould issues – compensation awarded less than the amount sought by the tenant – net amount still owing to the landlord. APPEALS – whether to grant an extension of time to lodge the appeal – no error of law as to whether the Tribunal misunderstood the landlords’ claim in respect of the rental bond – other issues raised on appeal concerned challenges to findings of fact – no arguable case of appealable error | Hendie v Ikona Developments Pty Ltd [2023] NSWCATAP 256 Consumer and Commercial Division – Home Building Decision of: G Blake AM SC, Senior Member; J S Currie, Senior Member Catchwords: COSTS — Party/Party — Appeals – amount in dispute exceeds $30,000 - general rule that costs follow the event - application of the rule where no hearing on the merits | FPA v NSW Trustee and Guardian [2023] NSWCATAP 257 Administrative and Equal Opportunity Division Decision of: T Simon, Principal Member; Dr R Dubler SC, Senior Member Catchwords: ADMINISTRATIVE REVIEW – Protective Division – whether sale of the protected person’s family home is in the best interests of the protected person APPEAL – whether the Appeal Panel ignored evidence or the weight of the evidence – whether the Tribunal was biased – whether the Tribunal failed to consider the view of the protected person – whether the Tribunal failed to take into account an agreement reached between the protected person and her son | Lirantzis v Germond Pty Ltd [2023] NSWCATAP 258 Consumer and Commercial Division – General Decision of: S Thode, Principal Member; C Fougere, Principal Member Catchwords: LEASES AND TENANCIES – Breach of tenancy agreement – No evidence – Assessment of damages
| Actol Pty Ltd v Rise Products Pty Ltd; Rise Products Pty Ltd v Actol Pty Ltd [2023] NSWCATAP 259 Consumer and Commercial Division – Home Building Decision of: A Suthers, Principal Member; G Curtin SC, Senior Member Catchwords: APPEALS – statutory interpretation – when amendment increasing Tribunal’s monetary jurisdictional limit in claims under the Fair Trading Act 1987 (NSW) takes effect – questions of law – adequacy of reasons as a question of law – need to identify questions of law with clarity | Goodman v Commissioner for Fair Trading [2023] NSWCATAP 260 Occupational Division Decision of: A Balla ADCJ, Principal Member; S Thode, Principal Member Catchwords: OCCUPATIONAL — Home Building Act 1989 (NSW) – application for restoration of supervisor certificate previously held by appellant – whether appellant took all reasonable steps to avoid external administration – whether appellant is a fit and proper person – whether error established | Ugur v Commissioner of Police [2023] NSWCATAP 261 Administrative and Equal Opportunity Division Decision of: A Britton, Deputy President; Dr J Lucy, Senior Member Catchwords: GOVERNMENT INFORMATION — whether in deciding to affirm the “information not held” decision under s 58(1)(b) of the Government Information (Public Access) Act, the Tribunal made a decision without evidence PROCEDURAL FAIRNESS — apprehended bias — whether the reason for decision given by the Tribunal gave rise to a reasonable apprehension of bias PROCEDURAL FAIRNESS — adjournment —whether by declining to grant the appellant’s application for adjournment of the hearing the appellant was denied procedural fairness EVIDENCE — no evidence — whether Tribunal made findings of fact without evidence REASONS FOR DECISION — whether delay in making decision resulted in a denial of procedural fairness REASONS FOR DECISION — whether reasons for decision were adequate APPEAL — fresh evidence — whether the power conferred by 80(3) of the Civil and Administrative Tribunal Act 2013 (NSW) to deal with an appeal by way of a new hearing should be exercised | Veney v The Owners – Strata Plan No 2245 [2023] NSWCATAP 262 Consumer and Commercial Division – Strata Scheme Decision of: S Thode, Principal Member; P Durack, Senior Member Catchwords: APPEAL – Strata Law – appeal against costs order and order dispensing with a hearing – discretionary decisions – no appealable error found | | Commissioner of Police, NSW Police Force v Arnold [2023] NSWCATAP 264 Administrative and Equal Opportunity Division Decision of: Dr R Dubler SC, Senior Member; E Bishop SC, Senior Member Catchwords: LICENSING — firearms — fit and proper person — public interest APPEAL — whether leave to appeal should be granted — whether the Tribunal misconstrued key parts of the evidence — whether the Tribunal misinterpreted some of the evidence | Harbourlights - Strata Plan 32515 v Chief Commissioner of State Revenue [2023] NSWCATAP 265 Administrative and Equal Opportunity Division Decision of: N Hennessy, ADCJ, Deputy President; Dr R Dubler SC, Senior Member Catchwords: TAXATION AND DUTIES – Parking Space Levy – exemption - whether parking spaces ‘set aside exclusively’ for exempt / non-exempt purposes – whether visitor parking spaces in a residential complex can be said to be spaces that are set aside exclusively for the purpose of parking of motor vehicles ‘by’ persons who reside on the premises within the meaning of reg 7(1)(b) of the Parking Space Levy Regulation 2009 (NSW) and reg 8(1)(b) of the Parking Space Levy Regulation 2019 (NSW) | | 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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