| | | | | | | NCAT Appeal Decisions Digest April 2017 Decisions
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| | The NCAT Appeal Decisions Digest provides monthly keyword summaries of decisions of the NSW Civil and Administrative Tribunal (NCAT) Internal Appeal Panel.
Under the Civil and Administrative Tribunal Act 2013, parties have a right to appeal to the Internal Appeal Panel from any decision made by the Tribunal in proceedings for a general decision or an administrative review decision. Detailed information about appeals is available on the NCAT website.
The following NCAT Appeal Panel decisions were handed down during the month of April 2017. Each case title is hyperlinked to the full decision available on NSW Caselaw. |
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| AHB v NSW Trustee and Guardian [2017] NSWCATAP 79
Administrative and Equal Opportunity Division - Administrative Review
Judgment of: K O’Connor, AM, ADCJ, Deputy President Appeals
J Kearney, Senior MemberSummary: The Appeal Panel granted leave to extend an appeal to the merits of the primary decision (at [34], [66]), making orders to vary a decision of the Tribunal below in the light of new circumstances.
In 2011, the New South Wales Trustee and Guardian (NSWTG) decided it was in the best interests of Mrs A, a protected person, to sell her family home (at [5]). After a period of protracted litigation (at [6]), in 2015 a delegate of the NSWTG made a fresh decision to sell Mrs A’s home, finding that there was a difference of between $10,000 and $15,000 per annum in Mrs A’s outgoings and income (at [7]). The Tribunal affirmed the decision, hearing the matter on 22 April 2016 and publishing its reasons on 15 September 2016 (at [8]).
The appellant, AHB, is Mrs A’s son and lives in the family home. In January 2017, the appellant informed the Appeal Panel that he had procured “tenants” for the family home, who were paying him “rent” (at [35]). The appellant’s rental income amounted to $1,000 per fortnight and had been regularly and entirely paid into Mrs A’s bank account since May 2016 (at [37]). The appellant submitted that these new circumstances should be taken into account in the Appeal Panel’s review of the primary decision of the Tribunal (at [37]).
The Appeal Panel held that the appellant’s fresh source of income was a “material development and needed to be addressed” (at [40]), finding that “on its face, this stream of income, if it could be made secure, offers a solution to the problem of the shortfall in Mrs A’s finances” (at [43]).
Following Collins v Urban [2014] NSWCATAP 17 at [80]-[85], the Appeal Panel identified (at [57]) the usual bases on which leave to appeal might be granted:
“[85] …
(2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve:
(a) issues of principle;
(b) questions of public importance or matters of administration or policy which might have general application; or
(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;
(d) a factual error that was unreasonably arrived at and clearly mistaken; or
(e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
The Appeal Panel held (at [58]) that the examples listed in (a), (b), (d) and (e) were irrelevant in the present case, but found that example (c) “in its first illustration (‘an injustice which is reasonably clear, in the sense of going beyond the merely arguable’) perhaps comes closer”. The Appeal Panel also observed that this list is non-exhaustive (at [58]).
Although the Appeal Panel noted (at [61]) that, in granting leave to extend the appeal, the appellant would be given an opportunity to make a case based on information he had in his possession when the matter was still before the Tribunal at first instance, such an outcome was justified because the matter had arisen in the protective jurisdiction of the Tribunal (at [62]). Accordingly, the Appeal Panel held (at [62]):
“In this jurisdiction, the exercise of the discretion to extend the appeal to grounds other than questions of law should, we think, be exercised in a way that recognises that the paramount consideration is always the welfare and interests of the protected person, and also gives appropriate regard to other public interests, such as the need for finality in disputes and the avoidance of undue depletion of the protected person’s funds by litigation.”
This approach is consistent with the recent decision of the Supreme Court of New South Wales in Re UF [2017] NSWSC 437 at [88]-[90].
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| Edwards v CohenHandler Pty Ltd (No. 2) [2017] NSWCATAP 81
Consumer and Commercial Division - Commercial
Judgment of: K O’Connor, AM, ADCJ, Deputy President, Appeals
A Boxall, Senior Member Summary: The Appeal Panel (at [25]-[26]) held that exposing a party to a second round of litigation, by way of an unsuccessful appeal on a costs decision, is a relevant matter, under s 60(3)(g) of the Civil and Administrative Tribunal Act 2013 (NSW), in determining whether there are special circumstances warranting an award of costs. Section 60(3)(g) relevantly provides that:
“In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following:
(g) any other matter that the Tribunal considers relevant”
Accordingly, the Appeal Panel found (at [26]):
“While the statutory rule is that ordinarily each party must bear its own costs, the fact that the party successful at first instance has been taken to appeal, and the appeal has been unsuccessful does, we think, strengthen the respondent party’s case for being awarded the costs of the appeal. There is a public interest in the finality of litigation, which is supported by leaving open the possibility of treating as a special circumstance the fact that the appeal has been unsuccessful.”
Furthermore, the Appeal Panel held that a failure to accept a Calderbank offer also constituted a relevant matter, but found that it is a “minor factor favouring a costs order on appeal” (at [24]).
In support of this proposition, the Appeal Panel observed (at [21]) that the Tribunal, and its predecessor the ADT, had given weight to offers of compromise when considering whether special circumstances existed to support an award of costs. This was particularly so in cases with an element of commerciality, such as, for example: Alessa Pty Limited v Total & Universal Pty Limited [2001] NSWADT 150; Citadin Pty Ltd (No. 2) v Eddie Azzi Australia Pty Ltd & General Pants Co Pty Ltd [2001] NSWADTAP 31; and more recently in Charalambous v Yeung (No 2) (RLD) [2014] NSWCATAP 1.
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| Rathchime Pty Ltd v Willat [2017] NSWCATAP 87
Consumer and Commercial Division - Home Building
Judgment of: Dr J Renwick SC Senior Member
D. Goldstein Senior MemberSummary: The Appeal Panel held that the Tribunal at first instance had erred in failing to take into account a relevant consideration (at [45], [72]), but found that, in relation to a separate ground of appeal, that it had not ignored relevant evidence (at [37], [44]). Following Yong v Antworks Pty Ltd [2016] NSWCATAP 14, the Appeal Panel held (at [70]-[71]) that a failure to deal with issues before the Tribunal will result in an error of law. This proposition is supported by the following authorities, as cited in Yong v Antworks Pty Ltd at [31]-[34], which are extracted below:
(1) “The duty of a judicial officer to hear and determine a claim made in judicial proceedings conducted before that officer is also an incident of the judicial process. Since breaches of the duty to give proper reasons and to observe procedural fairness involved errors of law, there seems every reason to hold that a breach of the duty to hear and determine a claim made in judicial proceedings also gives rise to such an error”: Yates Property Corporation Pty Ltd (In Liquidation) v Darling Harbour Authority (1991) 24 NSWLR 156 at 186 (Handley JA)
(2) “It follows from what has been written above that the failure of the Tribunal to make findings with respect to a particular matter may, at the same time, reveal failure to exercise jurisdiction, whether actual or constructive, and, also, failure to conduct a review as required by the Act.”: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [44] (Gaudron J)
(3) “In the present case the complaint is not that the full bench ignored the evidence but rather that it did not deal with an important ground raised by Mr Fox. This case is more akin to one where there is a failure by a Tribunal to deal with necessary issues. Such a failure constitutes a jurisdictional error": Fox v Australian Industrial Relations Commission [2007] FCAFC 150 at [38] (Marshall and Tracey JJ)
(4) “It is possible to characterise what occurred either as a failure to give reasons for the Tribunal's decision or a failure to exercise the jurisdiction conferred on the Tribunal and invoked by the appellant in relation to this claim in respect of excess timber - see Waterways Authority v Fitzgibbon [2005] HCA 57 at [129] - [130] and Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [42]. Whichever way it should be characterised, the Tribunal's failure to consider such a claim at all in its Reasons for Decision amounted to an error of law by the Tribunal below”: Khan v Kang [2014] NSWCATAP 48 at [28]
In relation to the ignoring relevant evidence ground, the Appeal Panel held (at [38]) that the Tribunal was not obliged to address all of the evidence before it. In doing so, the Appeal Panel relied on the following statement of Samues JA, in Mifsud v Campbell (1991) 21 NSWLR 725 at 728:
“Similarly, in my opinion, it is an incident of judicial duty for the judge to consider all the evidence in the case. It is plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made depend, as the duty to give reasons does, upon the circumstances of the individual case.
Accordingly, a failure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty which rests upon him or her.”
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| | | Keyword summaries for all NCAT Appeal Panel decisions made during April 2017. |
| Sedhom v Guirguis [2017] NSWCATAP 77
Consumer and Commercial Division - Residential Tenancies
Judgment of: M Harrowell, Principal Member Catchwords: STAY - application made after warrant for possession executed, balance of convenience against grant of interim relief. |
| Gurisik v Gurisik [2017] NSWCATAP 78
Consumer and Commercial Division - Residential Tenancies
Judgment of: A Britton, Principal Member; D Robertson, Senior Member Catchwords: WORDS AND PHRASES - meaning of “residential tenancy agreement” STATUTORY INTERPRETATION - whether the Residential Tenancies Act 1987 (NSW) is relevant in determining whether an agreement is a “residential tenancy agreement” under the Residential Tenancies Act 2010 (NSW)
PROCEDURAL FAIRNESS - whether a failure to invite a party to file material in reply constitutes a denial of procedural fairness - Tribunal’s power to determine its own procedure.
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| AHB v NSW Trustee and Guardian [2017] NSWCATAP 79
Administrative and Equal Opportunity Division - Administrative Review
Judgment of: K O’Connor, AM, ADCJ, Deputy President Appeals
J Kearney, Senior Member Catchwords: GUARDIANSHIP- Financial Management - Decision to sell protected person’s home - Reviewable decision - Affirmed by Tribunal - Appeal - No errors of law identified in Tribunal’s reasons – Whether discretion to grant leave to extend appeal to other grounds should be exercised - Leave granted to consider new circumstances - Decision under appeal varied. |
| Harmony Stone Gallery Pty Ltd v Ajuria [2017] NSWCATAP 80
Consumer and Commercial Division - General
Judgment of: G Curtin SC, Senior Member; R Titterton, Senior Member Catchwords: Application to extend the time for the filing of a notice of appeal – leave granted - no question of principle Proceedings heard and determined in absence of appellant/respondent - where respondent sought adjournment on basis of illness – no medical evidence provided - no error by Tribunal in proceeding in respondent’s absence. |
| Edwards v CohenHandler Pty Ltd (No. 2) [2017] NSWCATAP 81
Consumer and Commercial Division - Commercial
Judgment of: K O’Connor, AM, ADCJ, Deputy President, Appeals
A Boxall, Senior MemberCatchwords: COSTS OF APPEAL – Appeal dismissed – Respondent’s costs application – Whether special circumstances demonstrated – Application granted. |
| Duggal v Just Chrisy Superannuation Fund [2017] NSWCATAP 82
Consumer and Commercial Division - Residential Tenancies
Judgment of: G Curtin SC, Senior Member; R Titterton, Senior Member Catchwords: Application to extend time in which to appeal - application refused - no question of principle Appeal from a decision to refuse to set aside a decision made in the absence of the appellants - appeal dismissed - no question of principle. |
| Little v J & K Homes Pty Ltd [2017] NSWCATAP 84
Consumer and Commercial Division - Home Building
Judgment of: M Craig QC, Principal Member; DAC Robertson, Senior Member Catchwords: CONTRACT - Home Building contract - contract not terminated at time of hearing - whether appellants could maintain claims for performance of work required under the contract - whether appellants could maintain claim in respect of alleged breach of statutory warranties while contract remained on foot. |
| CSK v Secretary, Department of Family and Community Services [2017] NSWCATAP 85
Administrative and Equal Opportunity Division - Administrative Review
Judgment of: K O’Connor, AM, ADCJ, Deputy President, Appeals
J Lucy, Senior MemberCatchwords: ADMINISTRATIVE REVIEW - Jurisdiction - Decision to decline to assess suitability of prospective adoptive parents to adopt child. - Whether decision externally reviewable by Tribunal - Tribunal held not - appeal dismissed. |
| Abdel-Messih v Azzi [2017] NSWCATAP 86
Consumer and Commercial Division - Residential Tenancies
Judgment of: G Curtin SC, Senior Member; T Simon, Senior MemberCatchwords: RESIDENTIAL TENANCY LAW - subletting - termination for breach - non-occupation by the tenant – discretion to terminate
APPEAL - Civil and Administrative Tribunal (NSW) - Consumer and Commercial Division – error of law - no evidence - wrong finding of fact. |
| Rathchime Pty Ltd v Willat [2017] NSWCATAP 87
Consumer and Commercial Division - Home Building
Judgment of: Dr J Renwick SC Senior Member; D. Goldstein Senior Member Catchwords: Wednesbury unreasonableness - procedural fairness - substantial miscarriage of justice - failure to refer to evidence - failure to deal with issue. |
| M & M Building Pty Ltd v Keith [2017] NSWCATAP 88
Consumer and Commercial Division - Home Building
Judgment of: L P Robberds QC Senior Member; R Perrignon Senior Member Catchwords: HOME BUILDING CONTRACT – requirements for termination – whether requirements applied to termination at common law – whether contract terminated – Home Building Act requirements for variations – whether required to be in writing and signed by the parties – whether denial of procedural fairness in allowing submissions concerning termination at common law – claim for damages for breaches of contract by builder – failure to give reasons for non-application of s48MA Home Building Act – builder not licensed – was builder entitled to extension of time – was contract validly suspended by builder – acquiescence by home owners in change of plans - estoppel. |
| City Convenience Stores Pty Ltd v Third Lafite Pty Ltd (No. 2); Third Lafite Pty Ltd v City Convenience Stores Pty Ltd (No. 2) [2017] NSWCATAP 90
Consumer and Commercial Division - Commercial List
Judgment of: F Marks ADCJ, Principal Member; S Thode, Senior Member Catchwords: STATUTORY CONSTRUCTION - section 6A(2) of the Retail Tenancy Act- retail lease comes into effect at a time when more than one year of continuous entitlement to possession
INTEREST - application of section 72A of Retail tenancy Act-held entitlement to interest ceased by application of section 72A(5) when appropriate settlement sum offered- further held no special circumstances applied
COSTS - appeal proceedings involved substantial consideration of unsuccessful jurisdiction argument- unsuccessful party to pay half the costs of other party of both appeals. |
| Siad v Viselle & Brennan [2017] NSWCATAP 91
Consumer and Commercial Division - Home Building
Judgment of: L P Robberds QC, Senior Member; S Thode, Senior Member Catchwords: CONSENT ORDER – appeal – no evidence to show that agreement to settle was not reached. |
| | Matumaini v Automobile Industries Pty Ltd [2017] NSWCATAP 93
Consumer and Commercial Division - Motor Vehicle
Judgment of: K Rosser, Principal Member; L P Robberds QC, Senior MemberCatchwords: APPEAL - CONSUMER LAW – failure to comply with consumer guarantees under Australian Consumer Law (NSW) – major failure – remedies available to consumer – consumer’s motor car breaks down – not necessary for consumer to prove a particular identified defect caused the breakdown in order to make a successful claim – only necessary to prove car was not of acceptable quality CONSUMER LAW – Consumer borrows money from finance company to buy motor car – motor car not of acceptable quality – is supplier liable to pay consumer the amount owing by the consumer to the finance company CONSUMER LAW – application of Australian Consumer Law (NSW) to consumer claims in NSW. |
| ZDH v ZDI [2017] NSWCATAP 94
Guardianship Division - Financial Management
Judgment of: S Westgarth, Deputy President
C Fougere, Principal Member
L Porter, General Member Catchwords: APPEAL – Guardianship Division – Financial management order – s 4(d) of Guardianship Act – principal’s wishes as reflected in enduring power of attorney taken into account – no question of law raised - no basis upon which to grant leave to appeal. |
| Como Leather Pty Ltd v Harris [2017] NSWCATAP 95
Consumer and Commercial Division - General
Judgment of: L Pearson, Principal Member; DAC Robertson, Senior MemberCatchwords: APPEAL: consumer claim – supply of bedroom suite – consumer guarantee as to acceptable quality – whether reasonable time for supplier to remedy failure – whether error of law – whether substantial miscarriage of justice |
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