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| NCAT Appeal Decisions Digest January 2016 Decisions
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The NCAT Appeal Decisions Digest is a monthly newsletter providing 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 decisions were handed down during the month of January 2016. Each case title links to the full decision available on the NSW Caselaw website. |
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Hacienda Caravan Park Pty Ltd v Howarde [2016] NSWCATAP 1
Consumer and Commercial Division - Residential parks
Judgment of: M HARROWELL, Principal Member; R TITTERTON, Senior Member
Catchwords: APPEAL – residential parks – jurisdiction - application of Holiday Parks (Long-Term Occupation Act) Act 2002 – application of Residential Parks Act 1998 - whether or not a binding agreement concluded. |
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Rogers v Vinoly [2016] NSWCATAP 2
Consumer and Commercial Division - Tenancy
Judgment of: R SEIDEN SC, Principal Member; S THODE, Senior Member
Catchwords: ADMINISTRATIVE – Civil and Administrative Tribunal (NSW) – appeal – question of law – requirement in s 10 of the Residential Tenancies Act that tenancy be in writing.
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Allcastle Homes Pty Ltd v Wilkinson [2016] NSWCATAP 3
Consumer and Commercial Division - Home building
Judgment of: J REDFERN, Principal Member; T SIMON, Senior Member
Catchwords: APPEAL – home building – jurisdiction to hear claim under the Home Building Act – meaning of “building claim” – whether claim under a tender agreement was a building claim –building contract not subsequently entered into – no physical construction but preparatory work – whether “for or in connection with the carrying out of residential building work” – Tribunal found jurisdiction on the basis of sufficient causal nexus – no error of law – appeal dismissed.
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Kjoller v Tailford [2016] NSWCATAP 4
Consumer and Commercial Division - Tenancy
Judgment of: N HENNESSY LCM, Deputy President; S THODE, Senior Member
Catchwords: RESIDENTIAL TENANCIES – appeal from decision dismissing landlord’s claim for damages – leave to appeal on grounds other than a question of law - fact finding
process unorthodox and unfair; RESIDENTIAL TENANCIES – appeal from decision
that landlord repay bond to tenant – decision dependent on earlier decision dismissing landlord’s claim for damages. |
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Cominos v Di Rico [2016] NSWCATAP 5
Consumer and Commercial Division - Home building
Judgment of: J REDFERN, Principal Member; K ROSSER, Senior Member
Catchwords: APPEAL – Civil and Administrative Tribunal – home building – whether denial of procedural fairness –self-represented litigant – nature of proceedings explained by the Tribunal – conduct of hearing not unfair – new evidence submitted after hearing concluded – considered but given little weight – no denial of procedural fairness – leave to appeal refused – appeal dismissed. |
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Thompson v Chapman [2016] NSWCATAP 6
Consumer and Commercial Division - Home building
Judgment of: M HARROWELL, Principal Member; K ROSSER, Senior Member Catchwords: Costs- Power to award costs in building claims under the Consumer Trader and Tenancy Tribunal Act and the Civil and Administrative Tribunal Act, general
discretion, entitlement to costs where “indulgence” sought by successful applicant, relevance of s94(1A) application to exercise of discretion. |
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Pupuke v Stratford [2016] NSWCATAP 7
Consumer and Commercial Division - Tenancy
Judgment of: M HARROWELL, Principal Member; S THODE, Senior Member Catchwords: Residential Tenancies Act- jurisdiction of the Tribunal to hear claim in respect of subtenancy – Meaning of borders and lodgers.– Validity of residential tenancy
agreement with sub-tenant in absence of proof of consent of landlord to sub-let. |
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Simpson v NSW Land and Housing Corporation [2016] NSWCATAP 8
Consumer and Commercial Division - Social housing
Judgment of: J REDFERN, Principal Member; S THODE, Senior Member Catchwords: APPEAL – Civil and Administrative Tribunal – termination of residential tenancy – use of premises for supply of prohibited drugs – conviction – exercise of discretion to terminate – application for an extension of time in which to file notice of appeal – significant delay – no satisfactory explanation for the length of the delay – leave to appeal required – appeal without merits – no question of principle or injustice – extension of time refused – appeal dismissed. PRACTICE AND PROCEDURE– adjournment sought on the day of the hearing – no medical evidence in support –– stay granted on basis of urgent hearing – prejudice to other party – unlikely adjournment would produce different outcome – delays in the hearing at request of appellant – appellant attended hearing – adjournment refused. |
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Cooke v NSW Land and Housing Corporation [2016] NSWCATAP 9
Consumer and Commercial Division - Social housing
Judgment of: M SCHYVENS, Deputy President; T SIMON, Senior MemberCatchwords: Error of law, residential tenancy, notice of hearing, termination, leave to appeal, nonpayment of rent, payment plan. |
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Gennacker Pty Ltd v Bennett [2016] NSWCATAP 10
Consumer and Commercial Division - Residential parks
Judgment of: M HARROWELL, Principal Member; J WAKEFIELD, Senior MemberCatchwords: Holiday Parks Act - Occupation agreements, manner in which agreement may be varied; Variation of agreements – inferred contract; Residential Parks Act – residential tenancy agreement, jurisdiction to determine rent dispute, requirements of notice to increase rent; Adequacy of reasons. |
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Spicer v Owners Corporation SP 64558 [2016] NSWCATAP 11
Consumer and Commercial Division - Strata and community schemes
Judgment of: N HENNESSY LCM, Deputy President; M HARROWELL, Principal MemberCatchwords: Strata Scheme Management Act – power to award costs following withdrawal of application, form of order to effect withdrawal. Meaning of “misconceived”, requirements for making an order dismissing proceedings that are misconceived. Consumer Trader and Tenancy Tribunal Act - power to make orders under s 28. |
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BTH v NSW Public Guardian [2016] NSWCATAP 12
Guardianship Division - Interlocutory
Judgment of: M SCHYVENS, Deputy PresidentCatchwords: INTERLOCUTORY – application to revoke leave for legal representation previously granted to subject person – legal principles – s 45(3)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) – r 32(2) of the Civil and Administrative Tribunal Rules 2014 (NSW) – solicitor’s conduct – whether breach of conduct rules – confidential information held by solicitor – solicitor’s duty to act in the best interests of each client – application dismissed. |
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Yong v Antworks Pty Ltd [2016] NSWCATAP 14
Consumer and Commercial Division - Home building
Judgment of: J REDFERN, Principal Member; D GOLDSTEIN, Senior Member Catchwords: APPEAL – Civil and Administrative Tribunal (NSW) – home building claims – dispute about contract – claim for defects – claim for payment and for variations alleged not to be in writing – construction of Home Building Act and Regulation – whether Tribunal failed to exercise its statutory function – failure to make findings on material issues in dispute – whether reasons adequate – principles to be applied – no denial of procedural fairness where expert relied on letter attached to report – question of weight – whether expert independent – decisions set aside and proceedings remitted for reconsideration. PRACTICE AND PROCEDURE – whether the proceedings should be remitted to differently constituted Tribunal – principles to be applied. COSTS – where costs decision based on substantive decision which has been set aside – decision set aside and remitted for reconsideration. |
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Murauer v Andresson [2016] NSWCATAP 15
Consumer and Commercial Division - Tenancy
Judgment of: Dr J RENWICK SC; R TITTERTON, Senior Members Catchwords: Residential Tenancies Act 2010 - Landlord’s general obligations for residential premises - Landlord’s general obligation – correct legal test. |
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Chen v Roads and Maritime Services [2016] NSWCATAP 16
Occupational Division - Administrative review
Judgment of: Dr J RENWICK SC; R TITTERTON, Senior Members Catchwords: PASSENGER TRANSPORT ACT AND REGULATIONS - Public passenger (taxi) driver license - fitness and propriety of license holder – where driver conveys drunk passenger via circuitous route to destination; short trip takes two hours. CIVIL AND ADMINISTRATIVE TRIBUNAL – Appeal – leave to appeal – no question of principle. |
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Richards v Omega House Pty Ltd [2016] NSWCATAP 17
Consumer and Commercial Division - Tenancy
Judgment of: Dr J RENWICK SC; T SIMON, Senior Members Catchwords: CIVIL AND ADMINISTRATIVE TRIBUNAL – Appeal Panel – questions of law – leave – residential tenancy claim brought out of time – no question of law – leave not granted – appeal dismissed. |
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Templeman v O’Sullivan [2016] NSWCATAP 18
Consumer and Commercial Division - Home building
Judgment of: M HARROWELL, Principal Member; J LUCY, Senior Member Catchwords: Leave to appeal out of time; Leave to rely on expert evidence obtained after hearing concluded. |
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ZAG v NSW Trustee and Guardian [2016] NSWCATAP 19
Guardianship Division - Review of order
Judgment of: N HENNESSY LCM; M SCHYVENS, Deputy Presidents; B MCPHEE, Senior Member Catchwords: APPEAL – procedural fairness – 2 days’ notice of hearing inadequate – urgency does not justify short notice - failure to adequately disclose material prior to hearing – failure to suggest an adjournment STATUTORY INTERPRETATION – meaning of phrase “given reasons for the decision” in r 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 – applicability of posting rule presumption. |
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ZAN v The Public Guardian [2016] NSWCATAP 20
Guardianship Division - Review of order
Judgment of: WRIGHT J, President; M SCHYVENS, Deputy President; L PORTER, General Member (Community) Catchwords: APPEAL – Civil and Administrative Tribunal (NSW) – Guardianship Division – internal appeal – applications for guardianship and financial management – question of law – procedural fairness – where statutory party to proceedings not identified by the Tribunal – where documents not provided to party – inadequate notice of hearing – self-represented litigants – duty of Tribunal to advise of right to seek an adjournment – appeal upheld – matter remitted for redetermination. GUARDIANSHIP – protective jurisdiction – section 4 principles – balance between procedural fairness and duty to protect the welfare and the interests of the person. FINANCIAL MANAGEMENT – urgency of application – need to provide procedural fairness. |
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Jordan v Audet [2016] NSWCATAP 22
Consumer and Commercial Division - Tenancy
Judgment of: Dr J RENWICK SC; T SIMON, Senior Members Catchwords: Administrative law – Civil and Administrative Tribunal – request for leave – against the weight of evidence – not fair and equitable – leave not granted – non publication application not granted. |
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Hacienda Caravan Park Pty Ltd v Denley [2016] NSWCATAP 23
Consumer and Commercial Division - Residential parks
Judgment of: M HARROWELL, Principal Member; J WAKEFIELD, Senior Member Catchwords: Residential Parks Act – residential tenancy agreement, jurisdiction to determine rent dispute; Reasons – Adequacy of reasons. |
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