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| NCAT Appeal Decisions Digest March 2015 Decisions
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The NCAT Appeal Decisions Digest is a regular 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 NCAT Appeal Panel decisions were handed down during the month of March 2015. Each case title is hyperlinked to the full decision available on NSW Caselaw. |
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| NSW Land and Housing Corporation v Smith [2015] NSWCATAP 27
Consumer & Commercial Division - Social Housing
Judgment of: D PATTEN, Principal Member; C PAULL, Senior Member Catchwords: Distinction between sections 44 and 187 of Residential Tenancies Act – Absence of right to use reasons to alter clear basis of finding |
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Jones v Dempsey [2015] NSWCATAP 28
Consumer & Commercial Division - Home Building
Judgment of: J REDFERN; R TITTERTON, Principal Members Catchwords: Appeal – Civil and Administrative Tribunal (NSW) Jurisdiction of Appeal Panel where orders made by consent – principles to be applied |
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Shirley Therese Berriman v Wayne Gaynes Pty Ltd [2015] NSWCATAP 29Consumer & Commercial Division - Commercial
Judgment of: The Hon DA COWDROY OAM QC, Principal Member; K ROSSER, Senior Member Catchwords: Civil and Administrative Tribunal (NSW) - Appeal filed out of time; Principles to consider on extension of time; no reasonable prospect of success |
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Murnane Carpentry Pty Ltd v Kalinovski [2015] NSWCATAP 30
Consumer & Commercial Division - Home Building
Judgment of: D PATTEN; R TITTERSON, Principal Members Catchwords: Appeal - Civil and Administrative Tribunal (NSW) - obligation to give reasons in accordance with s.62 of the Civil and Administrative Tribunal Act NSW (2013) – failure to comply - error of law |
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Darren and Julia Patterson v David Dawson [2015] NSWCATAP 31
Consumer & Commercial Division - Social Housing
Judgment of: D PATTEN, Principal Member; G MEADOWS, Senior Member Catchwords: APPEAL - Civil and Administrative Tribunal (NSW) - appeal against orders dismissing an application for termination of a residential lease pursuant to s 103 of the Residential Tenancy Act 2010 (NSW), - application of s 81 of the Act – meaning of “abandonment” |
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BPY v BZQ [2015] NSWCATAP 33
Guardianship Division
Judgment of: N HENNESSY LCM, Deputy President; M SCHYVENS, Deputy President; Dr B FIELD, General Member Catchwords: CIVIL AND ADMINISTRATIVE TRIBUNAL - APPEAL – power of attorney - enduring guardianship - application for guardianship order - application for financial management order - weight of evidence as to subject person’s capacity- views of subject person - decision to grant leave for solicitor involved in preparation of enduring guardianship and power of attorney to represent subject person and another party |
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Complete irrigation NSW Pty Ltd v John McMillan [2015] NSWCATAP 34
Consumer & Commercial Division - General
Judgment of: J REDFERN, Principal Member; G MEADOWS, Senior Member Catchwords: APPEAL – ancillary decision – question of law – jurisdiction to determine matter where previous adjudication of the issues – whether proceedings frivolous or vexatious |
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Edgeley Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCATAP 37
Administrative & Equal Opportunity Division - Revenue
Judgment of: R L SEIDEN SC, Principal Member; S FROST, Senior Member Catchwords: APPEAL – Civil and Administrative Tribunal (NSW) – land tax – grouping provisions – validity of notice of assessment – jurisdiction to appeal - whether question of law – jurisdiction of Tribunal to undertake merits review where no valid notice of assessment |
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Key v Southern Cross Community Housing Ltd [2015] NSWCATAP 38
Consumer & Commercial Division - Social Housing
Judgment of: N HENNESSY LCM, Deputy President; K ROSSER, Senior Member Catchwords: APPEAL – social housing tenancy – order that tenant remove her dog from the premises – appeal lodged nine days out of time – extension of time refused - appeal has no reasonable prospects of success |
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ATX v Victims Compensation Fund Corporation [2015] NSWCATAP 42
Administrative & Equal Opportunity Division - Victims Compensation
Judgment of: N HENNESSY LCM, Deputy President; J MCATEER, Senior Member Catchwords: APPEAL – NSW Civil and Administrative Tribunal – repealed victims compensation scheme – evidence lodged but not before the Tribunal – evidence before the Tribunal but not taken into account – meaning of “compensable injury”- merits of the application considered |
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Roads and Maritime Services v Rifahi [2015] NSWCATAP 43
Administrative & Equal Opportunity Division - Administrative Review
Judgment of: N HENNESSY LCM, Deputy President; M JERRAM A/LCM, Senior Member Catchwords: CIVIL AND ADMINISTRATIVE TRIBUANL – appeal – exercise of statutory discretion – taxi driver – fit and proper person – good repute - failure to take into account relevant considerations - unreasonableness |
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Hawkins v Papandrea [2015] NSWCATAP 44
Consumer & Consumer Division - Tenancy
Judgment of: M CHESTERMAN; R TITTERTON, Principal Members Catchwords: ADMINISTRATIVE LAW – Civil and Administrative Tribunal (NSW) – appeal – whether time to commence appeal should be extended |
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Boyle v Bereveskos [2015] NSWCATAP 45
Consumer & Commercial Division - Tenancy
Judgment of: L ROBBERDS QC, Senior Member; R TITTERTON, Principal Member Catchwords: ADMINISTRATIVE LAW – Civil and Administrative Tribunal (NSW) – appeal – whether leave to appeal should be granted |
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Kurmond Homes Pty Spiteri [2015] NSWCATAP 48
Consumer & Commercial Division - Home Building
Judgment of: R TITTERTON, Senor Member Catchwords: Appeal - Civil and Administrative Tribunal – costs – special circumstances – costs ordered in a fixed amount |
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Lameh Mourad v Omar Aly [2015] NSWCATAP 49
Consumer & Commercial Division - Home Building
Judgment of: The Hon DA COWDROY OAM QC, Principal Member; T SIMON, Senior Member Catchwords: Appeal – extension of time to bring appeal – failure to attend hearing and to comply with directions – adequacy of medical certificate – challenged decision failing to disclose reasons |
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Rose Nettis Pty Ltd (Appellant); Three Tall Trees Pty Ltd (Respondent) [2015] NSWCATAP 51
Consumer & Commercial Division - Commercial
Judgment of: D PATTEN, Principal Member; R C TITTERTON, Senior Member Catchwords: Appeal - Civil and Administrative Tribunal – Costs – special circumstances |
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Fordham v Davies [2015] NSWCATAP 52
Consumer & Commercial Division - Tenancy
Judgment of: Dr J G RENWICK SC; S THODE, Senior Members Catchwords: CIVIL AND ADMINISTRATIVE TRIBUNAL – APPEAL PANEL – COSTS APPLICATION – NO SPECIAL CIRCUMSTANCES – APPLICATION REFUSED |
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Antworks Pty Ltd and Brendon Chhong Lee v Shixin (Cindy) Lee [2015] NSWCATAP 53
Consumer & Commercial Division - Home Building
Judgment of: S WESTGARTH, Deputy President; P H MOLONY, Senior Member Catchwords: Appeal – home building – order made against director of building company who was not a party to contract - no lawful basis for order – failure by tribunal to consider whether unpaid monies due under contract should be set off against claim for incomplete/defective works – quantum meruit claim for residential building works assessed with regard to costs of materials only – failure to consider costs of labour and allowance for builders margin – Appeal allowed |
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Clapham v Elsworth [2015] NSWCATAP 54
Consumer & Commercial Division - Tenancy
Judgment of: D PATTEN, Principal Member; K ROSSER, Senior Member Catchwords: Appeal - Civil and Administrative Tribunal (NSW); extension of time; prospects of success |
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Pandeli v Hou [2015] NSWCATAP 58
Consumer & Commercial Division - Home Building
Judgment of: A P COLEMAN SC; T SIMON, Senior Members Catchwords: APPEAL: Questions of law, Breach of warranty under Home Building Act,1989 (NSW); whether evidence discharged burden to prove breach of statutory warranties; CONTRACT: Terms of contract between the parties, work to be done, objective assessment of contractual terms; work done by contractor; warranty to undertake work in proper and workmanlike manner. EVIDENCE: no adequate evidence as to quantum of appellants’ loss. Remittal for determination on proper evidence. |
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Tse v Hang & Anor [2015] NSWCATAP 59
Consumer & Commercial Division - Tenancy
Judgment of: A P COLEMAN SC; C PAULL, Senior Members Catchwords: APPEALS: Whether leave required; No notification of hearing; PROCEDURE: Personal service of application commencing proceedings RESIDENTIAL TENANCIES: Termination of tenancy by co-tenant; communications with agent that one tenant leaving premises does not, without more, terminate tenancy |
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Fassas v Maciel [2015] NSWCATAP 60
Consumer & Commercial Division - Commercial
Judgment of: J REDFERN, Principal Member; R C TITTERTON, Senior Member Catchwords: Appeal – Civil and Administrative Tribunal – error of law – leave to appeal – substantial miscarriage of justice |
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Mohammed Shamsuzzaman v Road and Maritime Services [2015] NSWCATAP 62
Occupational Division - Administrative Review
Judgment of: Dr J G RENWICK SC; P H MOLONY, Senior MembersCatchwords: Civil and Administrative Tribunal – Appeal Panel – Taxi Transport Subsidy Scheme – knowingly false certification by taxi driver – not a fit and proper person – appeal dismissed |
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Polovin v Miller [2015] NSWCATAP 63
Consumer & Commercial Division - Home Building
Judgment of: M CHESTERMAN, Principal Member; R TITTERTON, Senior Member Catchwords: Jurisdiction of Tribunal under Home Building Act 1989 - costs |
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BZE v NSW Public Guardian [2015] NSWCATAP 64
Guardianship Division - Guardianship Order
Judgment of: N HENNESSY LCM, Deputy President; D ROBINSON, Principal Member; M BOLT, General MemberCatchwords: APPEAL – application for guardianship – whether Tribunal took into account all considerations and principles that it was bound to take into account |
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