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| NCAT Appeal Decisions Digest March 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 March 2016. Each case title is hyperlinked to the full decision available on NSW Caselaw. |
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Jubian v Clark; Clark v Jubian [2016] NSWCATAP 56
Consumer & Commercial Division - Home Building
Judgment of: S Higgins, Principal Member; S Thode, Senior Member Catchwords: Administrative Law – appeal from the Consumer and Commercial Division of the Tribunal – home building dispute – appeal by builder on errors of law – no errors found. Appeal by homeowner – appeal lodged out of time – application for extension of time refused – substantial delay and no prospects of success on grounds of appeal relied on |
| Salisbury v Sonter [2016] NSWCATAP 57
Consumer & Commercial Division - Tenancy
Judgment of: D Patten, Principal Member; R Titterton, Senior Member Catchwords: Leave to appeal – no question of principle. Operation of s 66 of the Residential Tenancies Act 2010 |
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Agdiran v Owners Corporation SP83475 [2016] NSWCATAP 58
Consumer & Commercial Division - Home Building
Judgment of: P Callaghan SC, Principal Member; K Rosser, Senior Member Catchwords: APPEAL - residential strata title development – claim for breaches of warranties under Home Building Act – grounds covering adequacy of reasons, procedural fairness and sufficiency of evidence – appeal dismissed APPLICATION FOR LEAVE TO APPEAL – similar grounds – application dismissed |
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Commissioner of Police, NSW Police Force v Field [2016] NSWCATAP 59
Administrative & Equal Opportunity Division - Administrative Review
Judgment of: N Hennessy LCM, Deputy President; P Durack SC, Senior Member Catchwords: APPEAL - CCTV footage of incident at shopping centre – whether footage should be disclosed by providing a copy or by inspection – whether there is an overriding public interest against disclosure of the information in the way requested – procedural fairness – relevance of doctrines of freedom of political communication and restraint on publication |
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Hancock & Claringbold v Allala Bayside Realty Pty Ltd t/as Callala First National Real Estate [2016] NSWCATAP 60
Consumer & Commercial Division - General
Judgment of: J Redfern, Principal Member; D Robertson, Senior Member Catchwords: APPEAL PANEL − Civil and Administrative Tribunal (NSW) – consumer claim – whether breach of managing agent agreement − no errors of law established – leave to appeal refused – appeal dismissed COSTS − whether special circumstances – offer of compromise made prior to proceedings being commenced – found not to be relevant to costs on the appeal – no special circumstances – application for costs refused |
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Florida Kitchens Centre Pty Ltd v Keith (No 2) [2016] NSWCATAP 61
Consumer & Commercial Division - Home Building
Judgment of: J Redfern, Principal Member Catchwords: APPEAL – Civil and Administrative Tribunal (NSW) – home building dispute – procedural orders about inspection of manufacturing facility – second appeal against procedural directions – previous directions in similar terms to orders sought to be appealed – principles for leave to appeal against procedural directions – leave refused COSTS – whether special circumstances – grounds established |
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Blue Bella Pty Limited v Jackson [2016] NSWCATAP 62
Consumer & Commercial Division - General
Judgment of: J Redfern, Principal Member; S Thode, Senior Member Catchwords: APPEAL – Civil and Administrative Tribunal (NSW) – consumer claim – Australian Consumer Law – whether unsolicited consumer agreement – seminar provider operating from different venues – whether at a place other than the business or trade premises of the supplier – scope of provision – reverse onus on supplier – 10 day cooling off period – agreement was unsolicited – termination valid – appeal dismissed |
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The Trust Company Ltd v Diamond Certification Laboratory of Australia Pty Ltd [2016] NSWCATAP 63
Consumer & Commercial Division - Commercial
Judgment of: Cowdroy ADCJ; J Redfern, Principal Members Catchwords: COSTS – appeal and remitted hearing – jurisdiction to award costs where proceedings dismissed for lack of jurisdiction – principles to be applied – overlap between costs incurred in appeal and remitted hearing – proportionate reduction in costs on remitted proceedings – no special circumstances in the appeal proceedings |
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Chi Building Pty Ltd v Wedgwood [2016] NSWCATAP 64
Consumer & Commercial Division - Home Building
Judgment of: Cowdroy ADCJ, Principal Member; R Titterton, Senior Member Catchwords: Civil and Administrative Tribunal – Expert Code of Conduct – status of Code – exclusion of expert evidence constituting a denial of natural justice Expert evidence – independence of expert – matter of weight, not admissibility |
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Hitchens v Bassett & Mulhall [2016] NSWCATAP 65
Consumer & Commercial Division - Tenancy
Judgment of: P Durack SC; G Meadows, Senior Members Catchwords: Appeal – claim for damages for breach of residential tenancy agreement – no appearance by appellant |
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Perkins v Barraket [2016] NSWCATAP 66
Consumer & Commercial Division - Tenancy
Judgment of: S Westgarth, Deputy President; S Thode, Senior Member Catchwords: Assessment of damages, mitigation, extending time |
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Hernady v Raccani [2016] NSWCATAP 67
Consumer & Commercial Division - Tenancy
Judgment of: Wright J, President; S Thode, Senior Member Catchwords: APPEAL – Civil and Administrative Tribunal (NSW) – Consumer and Commercial Division – internal appeal – question of law – whether Tribunal gave adequate reasons for its decision – appeal upheld (in part) – issues remitted for redetermination. APPEAL – Civil and Administrative Tribunal (NSW) – Consumer and Commercial Division – internal appeal – question of law – whether Tribunal failed to exercise its jurisdiction properly invoked – appeal upheld (in part) – issues remitted for redetermination |
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Kay v 3D Design & Build Pty Ltd [2016] NSWCATAP 68
Consumer & Commercial Division - Home Building
Judgment of: C Fougere, Principal Member; K Rosser, Senior Member Catchwords: APPEAL – denial of procedural fairness – failure to give opportunity to respond to disputed evidence – determination of application at a directions hearing |
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MSP Consulting and Building Constructions Pty Ltd v Karkoulas [2016] NSWCATAP 69
Consumer & Commercial Division - Home Building
Judgment of: J Redfern, Principal Member; M Anderson, Senior Member Catchwords: APPEAL – Civil and Administrative Tribunal (NSW) – home building claim – conditional stay of decision granted – stay lapsed due to failure to comply with condition – whether appeal as of right established – ground of appeal on apprehension of bias not established – whether leave to appeal under section 80(2)(b) Civil and Administrative Tribunal Act 2013 (NSW) required – whether leave pursuant to clause 12 of schedule 4 of the Civil and Administrative Tribunal Act 2013 (NSW) should be granted – leave to appeal refused – appeal dismissed |
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Cameron v Ozzy Tyres Pty Ltd [2016] NSWCATAP 70
Consumer & Commercial Division - Motor Vehicle
Judgment of: L Robberds QC, Senior Member; T Simon, Senior Member Catchwords: Sale of wheels and tyres by respondent to appellant – breach by respondent of ss 54, 56, 60 and 61 Australian Consumer Law – refusal of adjournment sought by appellant to obtain expert evidence of cost of repair – overall requirements of justice in the particular circumstances of the case – errors by member in dealing with adjournment application bringing about unjust result – award of only nominal damages of $100 because no expert evidence of cost of repair – decision not fair and equitable – appellant may have suffered substantial miscarriage of justice – exercise of discretion to grant leave to appeal |
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Zey v Bunnings Group Ltd [2016] NSWCATAP 72
Consumer & Commercial Division - General
Judgment of: M Dicker SC; K Rosser, Senior Members Catchwords: APPEAL – Consumer Claim – Australian Consumer Law – Fit for disclosed purpose – Weight of evidence - Whether question of law established – leave to appeal |
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Tiwari v Champion Homes Sales Pty Ltd [2016] NSWCATAP 73
Consumer & Commercial Division - Home Building
Judgment of: N Hennessy LCM, Deputy President; S Thode, Senior Member Catchwords: APPEAL – home building contract – lawfulness of contract price adjustment – unfair contracts – adjournment application - duty to offer an adjournment in certain circumstances |
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