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| NCAT Appeal Decisions Digest July 2016 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 July 2016. Each case title is hyperlinked to the full decision available on NSW Caselaw. |
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| The following case summaries are of significant decisions handed down by the NCAT Appeal Panel during July 2016.
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| Franken v NSW Land and Housing Corporation [2016] NSWCATAP 154
Consumer & Commercial Division - Social Housing
Judgment of: M Harrowell, Principal Member; T Simon Senior Member Summary: Franken, the appellant and tenant, appealed against a decision to terminate her residential tenancy agreement under s 91 (use of premises for illegal purposes) of the Residential Tenancies Act 2010 (NSW). One ground of appeal was that Franken had been denied procedural fairness because her adjournment request to permit the police charges against her to be first determined was refused. Although the Appeal Panel noted (at [72]) that "in our view there is no principle of law that required the Tribunal to adjourn the application for termination until after the hearing of the criminal proceedings", the Appeal Panel ultimately allowed the appeal in circumstances where:
1. "The appellant was self represented at the directions hearing on 17 August 2015 and at the final hearing on 9 October 2015; 2. what was said to at the directions hearing on 17 August 2015 could reasonably have led her to believe that a final hearing of the application for termination would occur after the criminal proceedings had been dealt with;and 3. the appellant had a subjective belief that the criminal proceedings would be heard before the application for termination, 4. in our view the failure to adjourn the proceedings on 9 October 2015 was a denial of natural justice in the sense used in Lam." |
| Bonita v Shen [2016] NSWCATAP 159
Consumer & Commercial Division - Commercial
Judgment of: M Harrowell, Principal Member; J McAteer, Senior MemberSummary: The Appeal Panel found that r 38 of the Civil and Administrative Tribunal Rules 2014 is valid ([57]). The Appeal Panel noted that r 38 is not inconsistent with the regulations (if it were, the regulations prevail "to the extent of inconsistency": s 25(5) of the NCAT Act). Section 78 of the Interpretation Act 1987 permits the Tribunal to make rules, "including rules or orders with respect to costs" ([45]). The NCAT Act does not otherwise prevent the making of rules contrary to s 60 of the NCAT Act: s 60 is "subject to enabling legislation and the procedural rules" by virtue of s 35 and s 4(4) provides that "[a]ny provisions of this Act that are expressed to be subject to the procedural rules have effect subject to any exceptions, limitation or other restrictions specified by the procedural rules". Rule 38 is an exception "specified by the procedural rules" and s 4(5) expressly provides that procedural rules of this type are not inconsistent with the Act. |
| ZAW v ZAX & ZAY & ZAZ & New South Wales Trustee and Guardian [2016] NSWCATAP 163
Guardianship Division - Financial Management
Judgment of: J Boland ADCJ, Deputy President; C Fougere, Principal Member; Dr G Jamieson, Professional Member Summary: The Appeal Panel summarised the provisions and principles governing internal appeals, particularly form the Guardianship Division (at [21]-[29]), see particularly [24]-[25]:
The nature of an appeal under s 80 is an appeal on “a question of law”. The scope of that phrase is comprehensively reviewed by Lindsay J in C v W [2015] NSWCA 1774. His Honour refers at [27] with reference to authority to the circumstance where an error of law may be treated as synonymous with an appeal on a question of law. At [28] his Honour notes however that the two concepts are “conceptually distinct; but demonstration that a decision is affected by an error of law is sufficient to sustain an appeal on a question of law”. At [34] his Honour explains:
The nature of a statutory appeal depends critically on the language of the particular statute governing the appeal: Kostas v HIA Insurance Services Pty Limited (2010) 241 CLR 390 at 418[89]. The nature and breadth of the provisions of the Civil and Administrative Tribunal Act governing the present appeal (including sections 5(2), 34 and 53(3)-(4) and Schedule 6, clauses 12 and 14), in practice are likely to render a sharp distinction between the concepts of “a question of law” and “an error of law” less significant than might otherwise be the case.
His Honour identifies three interrelated “gateways” an appellant may seek to access to challenge a decision of the Tribunal. In summary, an appellant must demonstrate that:
(1) Absent a grant of leave, the appeal is an appeal on a question of law;
(2) If leave is to be granted for a ground, other than on a question of law, to generally satisfy the appellate court or tribunal that there is a question of principle or policy or a manifest error in the decision which merits a grant of leave.
(3) Having regard to the broad discretion to make or decline to make a financial management order (or we would say to review the appointment of a financial manager) error of principle must be established.
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Keyword summaries for all NCAT Appeal Panel decisions made during July 2016.
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Franken v NSW Land and Housing Corporation [2016] NSWCATAP 154
Consumer & Commercial Division - Social Housing
Judgment of: M Harrowell, Principal Member; T Simon, Senior MemberCatchwords: Residential Tenancies Act- Termination- use of premises for illegal purposes Procedural fairness- departure from expected process Stay of Civil proceedings- criminal proceedings raising related issues |
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Forrest v NSW Land and Housing Corporation [2016] NSWCATAP 156
Consumer & Commercial Division - Social Housing
Judgment of: Marks ADCJ , Principal Member; J Currie, Senior MemberCatchwords: Residential Tenancies Act sec 91(1)(a)- exercise of discretion miscarried - appeal allowed - matter remitted for reconsideration |
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Lauer v Comer (No 2) [2016] NSWCATAP 158
Consumer & Commercial Division - Home Building
Judgment of: D Patten, Principal Member; R Titterton, Senior Member Catchwords: Home Building Act – s 94(1A) – quantum meruit not just and equitable |
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Bonita v Shen [2016] NSWCATAP 159
Consumer & Commercial Division - Commercial
Judgment of: M Harrowell, Principal Member; J McAteer, Senior MemberCatchwords: Rule 38 Costs of proceedings in the Consumer and Commercial Division- Validity of rule 38, no requirement to establish special circumstances, general discretion to award costs, factors to be considered, when evidence of amount of costs required, Assessment of costs- applicable legislation, proceedings commenced prior to 1 July 2015 Discretion to award costs- review on appeal |
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CPD Holdings Pty Ltd v Baguley [2016] NSWCATAP 160
Consumer & Commercial Division - Home Building
Judgment of: Hennessy LCM, Deputy President; D J Lucy, Senior MemberCatchwords: COSTS – special circumstances – whether there are special circumstances justifying an order for costs on appeal from costs orders – whether amount of costs relevant to existence of special circumstances |
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ZAW v ZAX & ZAY & ZAZ & New South Wales Trustee and Guardian [2016] NSWCATAP 163
Guardianship Division - Financial Management
Judgment of: J Boland ADCJ, Deputy President; C Fougere, Principal Member; Dr G Jamieson, Professional Member Catchwords: APPEAL – application to replace financial manager - procedural fairness – new applications received shortly before the hearing considered at the hearing – documents provided to non-party – whether applicant had opportunity to put relevant evidence before Tribunal - whether sufficient weight given to relevant matters and/or conclusion reached not available on the evidence – subject person’s cultural background and traditions – proposed manager’s financial experience and expertise - no material error of fact – appeal dismissed |
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Willis v Charles [2016] NSWCATAP 164
Consumer & Commercial Division - Tenancy
Judgment of: M Dicker SC; D Fairlie, Senior MembersCatchwords: APPEAL - Residential Tenancies Act 2010 (NSW) - Whether appellant tenants had validly provided vacant possession and were no longer liable for rent - Effect of respondent's notice of termination - Whether appellant tenants liable for costs of replacing item and solar electricity bill - Weight of evidence - Leave to appeal refused - appeal allowed in part. |
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Augustus v Mohammed (No 2) [2016] NSWCATAP 165
Consumer & Commercial Division - Home Building
Judgment of: P Callaghan SC, Principal Member; S Thode, Senior MemberCatchwords: APPEAL – Civil and Administrative Tribunal – costs – special circumstances – no case for indemnity costs |
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Le v Citystruct Pty Ltd & Anor [2016] NSWCATAP 166
Consumer & Commercial Division - General
Judgment of: M Harrowell, Principal Member; D Fairlie, Senior MemberCatchwords: Leave to appeal- application to adduce fresh evidence, evidence not reasonably available Liability of third parties for actions of real estate agent |
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Rook v NSW Land & Housing [2016] NSWCATAP 169
Consumer & Commercial Division - Social Housing
Judgment of: Mullane ADCJ - Principal Member; P Molony, Senior MemberCatchwords: Appeal – From consent order; application for leave to appeal and to extend time for appeal; no merit to appeal, applications and Appeal dismissed. arguable |
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Thomas v Golde [2016] NSWCATAP 170
Consumer & Commercial Division - Tenancy
Judgment of: K P O'Connor AM, ADCJ, Deputy President Appeals; Dr J Lucy, Senior MemberCatchwords: RESIDENTIAL TENANCIES – Statutory time bar on rental arrears application – Construction - Whether time may be extended under general Tribunal power – construction. Residential Tenancies Act 2010, s190(1); Residential Tenancies Regulation 2010, cl 22(9); Civil and Administrative Tribunal Act 2013, s 41 |
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203 Castlereagh St Pty Ltd v Skybloo Holdings Pty Ltd [2016] NSWCATAP 172
Consumer & Commercial Division - Commercial
Judgment of: Cowdroy ADCJ, Principal Member; P Molony, Senior MemberCatchwords: Appeal for hearing on the papers – requirements of s 50 of the Civil and Administrative Tribunal Act 2013 with respect to hearing on papers – Tribunal failed to consider matters required by s 50 – appeal allowed |
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Anderson v Cameron [2016] NSWCATAP 173
Consumer & Commercial Division - Tenancy
Judgment of: S Higgins, Principal MemberCatchwords: COSTS – whether respondent has established special circumstances warranting an order for costs |
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Chaw v Jenkinson and Coverall Services Pty Ltd [2016] NSWCATAP 174
Consumer & Commercial Division - General
Judgment of: M Schyvens, Deputy President; P Durack SC, Senior MemberCatchwords: APPEAL – claim against director – earlier judgment against company for misleading and deceptive conduct – no evidence of involvement by director in misleading and deceptive conduct – assertions that director responsible for company’s judgment debt - no grounds for appeal established |
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