| | | | | NCAT Appeal Decisions Digest March 2018 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.
The following NCAT Appeal Panel decisions were handed down during March 2018. Each case title is hyperlinked to the full decision available on NSW Caselaw. |
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| Roberts v Chan & Naylor Parramatta Pty Ltd [2018] NSWCATAP 69
Consumer and Commercial - General
Decision of: L Robberds QC, Senior Member; DAC Robertson, Senior Member
Background: In 2006, the appellant wanted to buy of a block of land, and sought advice from the respondent about which legal structure to use. On the respondent’s advice, she purchased the property in trust, through her company.
In 2014, the appellant received a Land Tax Assessment Notice, in the sum of
$29,291.55. She applied to the Tribunal, seeking this amount from the respondent, and claiming that it had been negligent in failing to advise her that she would not be entitled to a land tax exemption if she did not purchase the property in her own name.
At first instance, the application was dismissed, on the basis that s 79L of the Fair Trading Act 1987 (NSW) (FT Act) deprived the Tribunal of jurisdiction by setting a three-year time limit in which to bring an action.
The grounds of appeal included that the Tribunal erred in:
- finding that it did not have jurisdiction;
- not granting an extension of time under s 41 of the NCAT Act; and
- not following the Appeal Panel’s decision in Wilson v Chan & Naylor Parramatta [2016] NSWCATCD 20 (Wilson).
Held (dismissing the appeal): (i) as proceedings were commenced more than three years after the cause of action first accrued, accordingly, the Tribunal had no jurisdiction to determine the appellant’s claim ([41]).
The cause of action in negligence in this case first accrued when, in reliance upon the respondents’ advice, the appellant acted in such a way that damage was inevitable ([33]). As such, any loss was sustained when the appellant became liable to pay land tax for which she would not have been liable had the property been purchased in her name ([34]).
(ii) Section 41 of the NCAT Act only extends to matters in respect of which the Tribunal has jurisdiction ([65]). As s 79L of the FT Act provides that the Tribunal does not have jurisdiction to hear and determine an application not brought within the specified time, s 41 could not be used to extend the time for commencement of proceedings in this matter ([64]-[65]).
(iii) The relevant statement in Wilson – that “the cause of action accrues when the damage is discovered” (quoted at [19]) – was contrary to authority binding upon the Tribunal ([45]).
Further, the duty to give adequate reasons does not mean that the Tribunal has to decide every matter which is raised in argument ([43]).
Battenberg v Union Club Ltd [2005] NSWADTAP 20 at [42], applied.
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| Gussoni v Burnheim [2018] NSWCATAP 75
Consumer and Commercial Division - General
Decision of: G Curtin SC, Senior Member; G Sarginson, Senior Member
Background: The appellant purchased a horse, Panda, from the respondent for her 16-year-old daughter to ride. Subsequently, however, Panda proved to be unsuitable for this purpose, by virtue of a condition known as headshaking syndrome.
The appellant commenced proceedings in the Tribunal, alleging that the respondent had breached various consumer guarantees under the Australian Consumer Law.
At the hearing, the presiding Member concluded that Panda was purchased by the appellant’s company, and as such it was difficult to see how the appellant had suffered any damage. The Member gave the appellant the following options, either: dismiss the proceedings, and the company could institute fresh proceedings, or seek leave to add the company as an applicant. At the appellant’s request, the Member dismissed the proceedings, providing brief reasons.
The appellant appeals from the order dismissing the proceedings.
Held (allowing the appeal): (i) the Tribunal below erred in three interlinked respects: - giving inadequate reasons;
- procedural unfairness; and
- overlooking important evidence.
(ii) A failure to explain the basis of a crucial finding of fact involves a breach of the principle that justice must not only be done but must be seen to be done ([32]-[33]).
Mifsud v Campbell (1991) 21 NSWLR 725 at 728, Samuels JA, applied.
In this case, “critical evidence supportive of the appellant’s position that she (and not [the company]) purchased Panda” should have been considered and referred to, but was not ([34]-[35]). This resulted in a miscarriage of justice, error of law by the Tribunal ([35]), and reasons that did “not meet a minimum standard which would place the parties in a position to understand why the decision was made…sufficiently to allow them to exercise their right of appeal” ([36]).
Additionally, the issue having been raised for the first time at the hearing, the appellant should have been asked whether she wished to seek an adjournment to obtain further evidence; however, she was not ([37]-[39]).
(iii) The “hearing rule” was infringed (at [45]):
“The hearing rule requires a decision-maker to give a person whose interests may be adversely affected by a decision an opportunity to present his or her case. …”
In this case, the appellant did not have a reasonable opportunity to gather, and bring to the hearing, important evidence regarding the true purchaser of Panda ([46]), amounting to “practical injustice”.
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte
Lam [2003] HCA 6; (2003) 214 CLR 1, Gleeson CJ at [37] – [38], applied.
The Appeal Panel did not make a determination about who was the purchaser, instead choosing to remit the matter to the Tribunal ([53]).
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| ZFJ v ZEY [2018] NSWCATAP 76
Guardianship Division
Decision of: J Boland ADCJ, Deputy President; M Harrowell, Principal Member; Dr M Spencer, General Member
Background: The respondent, Mrs ZEY, is a 92 year old widow and mother to six children. The Guardianship Division made orders appointing the Public Guardian as Mrs ZEY’s guardian, and two of her adult children as her financial managers.
The appellant, Ms ZFJ, is one of Mrs ZEY’s daughters. She sought to have the existing orders set aside, relying on grounds of appeal to the effect that the Tribunal:
- misinterpreted evidence about Mrs ZEY’s capacity;
- demonstrated bias in failing to disclose out of court observations of Mrs ZEY’s representative and the appellant;
- erred by relying on a medical report made with limited information;
- acted unreasonably in appointing family members as financial managers;
- erred in renewing a guardianship order that had lapsed; and
- failed to accord procedural fairness in declining to issue a summons.
At the outset of proceedings, Mrs ZEY indicated that she was satisfied with her accommodation, and that she supported the appointment of her financial managers.
Held (dismissing the appeal): (i) notwithstanding evidence that, if accepted, might have rebutted the presumption of capacity, it would have been “unsafe and procedurally unfair to Mrs ZEY” to find she lacked capacity ([65]). Noting that the assessments had been conducted during a difficult time for Mrs ZEY, and given the medical report commissioned by the appellant contained errors ([65]), it was found that a further report on Mrs ZEY’s mental capacity was required.
(ii) There was no evidence that the Tribunal demonstrated actual bias ([116]-[117]).
Reid v Commercial Club (Albury) [2014] NSWCA 98, Gleeson JA at [68]ff, applied.
Nevertheless, the Tribunal did breach its duty to notify a person that it had formed an adverse view of them, based on conduct outside the witness box, when such a view may impact adversely against that person ([120]-[123]).
Kuhl v Zurick Financial Services Australia Ltd (2011) 243 CLR 361 at [69], applied.
This point related to observations by the Members of an out of court conversation between Mrs ZEY’s legal representative and the appellant, which was deemed to demonstrate an “alignment” between them. Nonetheless, this did not amount to a sufficient basis for allowing the appeal. The Appeal Panel noted (at [125]):
“Here, there was a breach of the requirement to put the Tribunal’s out of hearing observations to [Mrs ZEY’s representative] to enable her to answer the criticisms levelled at her resulting in a finding of “alignment” [between her and the appellant]. Although this potentially constitutes appealable error we are not directed to any basis on which it can be demonstrated that this error could have made any difference to the ultimate outcome or, importantly, that the Tribunal had closed its mind and pre-judged the outcome of the applications.”
(iii) The Tribunal “properly focussed on relevant material to be provided to a clinical neuropsychologist to provide an up to date assessment and report on Mrs ZEY’s cognition.” ([91]) This approach was “proportionate, sought to contain costs, and was in accordance with s 36 and s 38 of the NCAT Act.” ([91])
(iv) The Tribunal’s reasons disclose that a “careful balancing of all relevant matters was undertaken before determining who to appoint as financial managers of Mrs ZEY’s estate.” ([141]) The Tribunal validly considered that appointing family members would result in reduced fees and quicker responses to Mrs ZEY’s needs ([137]), and did not give rise to an impermissible conflict of interests ([138]).
(v) There was no error in renewing a lapsed guardianship order. Section 25(6) of the Guardianship Act 1987 (NSW) states that:
“If a review of a guardianship order is commenced but not completed before the expiration of the period specified in the order as the period for which the order has effect, the order is taken to be extended until the completion of the review.”
Having regard to the principles of statutory construction, s 25(6) applies to temporary as well as continuing guardianship orders; otherwise, “a person in need of a guardian could be left in a vulnerable position” ([177]).
Project Blue Sky v ABA [1998] 194 CLR 355; 153 ALR 490, 72 ALJR 841, [1998] HCA 28, applied.
(vi) The appellant’s failure to seek leave to appeal from the refusal to issue a summons meant this ground was without merit ([180]). |
| Craig v Silva Portfolios Pty Ltd t/as Ballina Waterfront Village & Tourist Park [2018] NSWCATAP 79
Consumer and Commercial Division - Residential Communities
Decision of: K Rosser, Principal Member; S Frost, Senior Member
Background: The appellant was a resident in a residential park owned by the respondent. The site agreement specified, among other things, that the appellant agreed to pay “any excess garbage or sanitary charges" in connection with the residential site.
When the respondent gave notice that it was introducing a sewerage charge, the appellant brought the question of its validity to the Tribunal for determination.
At first instance, the Tribunal upheld the validity of the charge, holding that it was a “sanitary charge” within the scope of the site agreement, and dismissed the appellant’s claim for a refund.
The grounds of appeal claimed that the Tribunal erred as follows:
- In finding that a sewerage charge was valid and payable under the Residential Parks Act 1998 (the old Act);
- In not applying the provisions of sch 2, cl 15(2) of the Residential (Land Lease) Communities Act 2013 (the new Act);
- (In the alternative, if the sewerage charge is a “sanitary charge”) in finding that the appellant was required to pay all rather than just excess sanitary charges.
Held: (remitting the matter to the CCD): (i) “sewerage” was encompassed in the meaning of “sanitary”, in both the site agreement and the old Act (at [15]).
(ii) Clause 15(2) in sch 2 to the new Act provides that:
“Any new fee or charge permitted by this Act does not apply to any agreement entered into before the commencement of the relevant provisions of this Act.”
As the agreement pre-dated the new Act, and the appellant was already liable to pay sewerage charges, this provision did not help the appellant.
(iii) The term “excess” in the phrase “any excess garbage or sanitary charges”
applied to both garbage and sanitary charges. Accordingly, the appellant was entitled to a refund of any sewerage charges that were not “excess” sewerage charges.
The matter was nonetheless remitted to the CCD to determine whether to extend the period for lodging the original application, in line with the considerations set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [18]-[22]
(at [42]):
“The Appeal Panel’s decision in Jackson specifies the potential prejudice to the respondent as one of the relevant considerations, but not the only one. Other considerations include the length of the delay in bringing the application, the reason for the delay, and the applicant's prospects of success.”
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| Reckless v Silva Portfolios Pty Ltd t/as Ballina Waterfront Village & Tourist Park [2018] NSWCATAP 80
Consumer and Commercial Division - Residential Communities
Decision of: K Rosser, Principal Member; S Frost, Senior Member
Background: This appeal was heard at the same time as Craig, above, and involved another resident from the same residential park bringing a claim against the respondent owner. The facts, result at first instance, and grounds of appeal were substantially the same in both matters, however Reckless concerned electricity charges as well as sewerage charges.
In relation to the electricity charges, the appellant specified two further grounds of appeal, namely that the Tribunal erred by failing to apply the following provisions of the new Act:
- Section 6(2) – so as to prevent the owner from charging more for electricity than it was being charged;
- Section 77(3) – by permitting the owner to charge for electricity in the way that it does, despite its finding that “on the evidence it seems more likely than not, that the [owner] is charging more for the electricity it is on-selling, than it is being charged”.
These provisions are in the following terms:
“[Section] 6 Application of Act to site agreements
…
(2) Where this Act applies to a site agreement, it so applies despite the terms of the agreement or any other contract, agreement or arrangement, whether made before or after the commencement of this section.
…
[Section] 77 Utility charges payable to operator by home owner
…
(3) The operator must not charge the home owner an amount for the use of a utility that is more than the amount charged by the utility service provider or regulated offer retailer who is providing the service for the quantity of the service supplied to, or used at, the residential site.”
Held: (remitting the matter to the CCD): (i)-(iii) grounds 1-3 reflected the outcome in Craig.
(iv)-(v) Grounds 4 and 5 were dealt with together, and both were allowed. By s 6(2), the new Act applied to the site agreement, and accordingly s 77(3) applied to it as well ([37]-[38]).
The approach to interpreting s 77(3) was expressed at [57]-[58]:
“[57]… We need only refer to what the High Court said in Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55, at [39]:
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text” [Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at 46 [47]]. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.
[58] Despite the inelegant drafting of s 77(3), there is no ambiguity or lack of clarity in the language used. … The position is simply this – the Park Operator cannot charge Mrs Reckless for her consumption of electricity more than it is being charged by Origin Energy for the amount Mrs Reckless has consumed.”
The matter was remitted to the CCD for the purposes of calculating the amount of overpayment ([74]).
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| | | ZGB v ZGC [2018] NSWCATAP 58
Guardianship Division
Decision of: M Schyvens, Deputy President; C Fougere, Principal Member; S Johnston, General Member Catchwords: APPEAL – appeal from orders made by Guardianship Division – decision to appoint public guardian – no denial of procedural fairness – decision not against weight of evidence – appeal dismissed |
| SUV Sales Pty Ltd t/as 4B4 Warehouse v Walsh; Walsh v SUV Sales Pty Ltd t/as 4B4 Warehouse [2018] NSWCATAP 59
Consumer and Commercial Division - Motor Vehicle
Decision of: S Westgarth, Deputy President; D Robertson, Senior Member Catchwords: EXTENSION OF TIME – evidence not reasonably available |
| Abdel-Messih v Wang [2018] NSWCATAP 60
Consumer and Commercial Division - Residential Tenancies
Decision of: K O’Connor, AM, ADCJ, Deputy President, Appeals; G Sarginson, Senior Member Catchwords: RESIDENTIAL TENANCIES – Tribunal order in relation to amount of rent arrears – Tribunal order dismissing tenant’s claim that landlord unreasonably withheld consent to sub-let
APPEAL – statutory cap on rent arrears properly applied – considerations relevant to landlord’s discretion – nature of inquiry – having regard to evidence in settled termination proceedings in relation to whether landlord’s withholding of consent unreasonable – refusal to allow filing of further submissions after close of hearing – not unfair – appeal dismissed. |
| Hunt v Heydon [2018] NSWCATAP 61
Consumer and Commercial Division - Residential Tenancies
Decision of: P Durack SC, Senior Member; D Charles, Senior Member Catchwords: APPEAL – residential tenancy – claims by landlord at end of tenancy – when tenancy terminated – adequacy of reasons. |
| Athas v Baxter [2018] NSWCATAP 62
Consumer and Commercial Division - Home Building
Decision of: A Coleman SC, Senior Member; D Goldstein, Senior Member Catchwords: COSTS – existence of special circumstances to justify a costs order |
| B & M Mitchell Pty Ltd v Mikell Investments Pty Ltd & Divlist Pty Ltd t/as
Contemporary Homes [2018] NSWCATAP 63
Consumer and Commercial Division - Home Building
Decision of: S Westgarth, Deputy President; R Hamilton SC, Senior Member Catchwords: COSTS – Rules 38A and 38 of the Civil and Administrative Tribunal Rules 2014 |
| Rekrut and Scott v Champion Homes Sales Pty Ltd; Champion Homes Sales Pty Ltd v Rekrut and Scott (No 2) [2018] NSWCATAP 64
Consumer and Commercial Division - Home Building
Decision of: Wright J, President Catchwords: ORDERS – amendment – amendment under the slip rule in s 63 of the Civil and Administrative Tribunal Act 2013 (NSW) – no issue of principle |
| Oasis Aussies Pty Ltd t/as Combined Smash & Mechanical Repair Services v Chai [2018] NSWCATAP 65
Consumer and Commercial Division - Motor Vehicle
Decision of: S Higgins, Senior Member; T Simon, Senior Member Catchwords: APPEAL – appeal on question of law and application for leave to appeal – breach of the statutory guarantee that services will be rendered with due care and skill – assessment of damages – no issues of principle – failure of the Tribunal to take into account in the assessment of damages a finding that the appellant had not dented the front bumper bar |
| Grant v Schultz [2018] NSWCATAP 66
Consumer and Commercial Division - Residential Tenancies
Decision of: R L Hamilton SC, Senior Member; Dr J Lucy, Senior MemberCatchwords: ERROR OF LAW – failure of party to be heard |
| Tachnat Pty Ltd v Farag [2018] NSWCATAP 67
Consumer and Commercial Division - General
Decision of: K Ransome, Senior Member; G Burton SC, FCIArb, Senior Member Catchwords: APPEAL – consumer claim – no appearance of respondent at hearing – procedural fairness |
| Independent Liquor and Gaming Authority v Auld [2018] NSWCATAP 68
Administrative and Equal Opportunity Division
Decision of: M Harrowell, Principal Member Catchwords: PRACTICE AND PROCEDURE – question of law – application to refer question to Supreme Court of New South Wales-factors relevant to exercise of discretion |
| Roberts v Chan & Naylor Parramatta Pty Ltd [2018] NSWCATAP 69
Consumer and Commercial Division - General
Decision of: L Robberds QC, Senior Member; DAC Robertson, Senior Member Catchwords: APPEAL – consumer claims – jurisdiction of Tribunal – negligence – when cause of action accrues – when damage sustained not when damage discoverable – whether Tribunal’s power to extend time extends to limits on jurisdiction |
| Regal Dry Cleaners (NSW) Pty Ltd As Trustee For the Regal Dry Cleaners Trust v Dunn v Dunn [2018] NSWCATAP 70
Consumer and Commercial Division - Home Building
Decision of: S Higgins, Senior Member; T Simon, Senior Member Catchwords: APPEAL – appeal lodged out of time – whether time to lodge appeal should be extended – appellant’s appeal as of right on a question of law and with leave to appeal on other grounds lacked merit – application to extend time refused |
| Roberts v Morphett Constructions Pty Ltd [2018] NSWCATAP 71
Consumer and Commercial Division - Home Building
Decision of: K Rosser, Principal Member; DAC Robertson, Senior MemberCatchwords: APPEAL – costs – no issue of principle |
| Petropoulos v CPD Holdings Pty Ltd t/as The Bathroom Exchange [2018] NSWCATAP 72
Consumer and Commercial Division - Home Building
Decision of: N Hennessy LCM, Deputy President; G Sarginson, Senior Member Catchwords: HOME BUILDING – appeal on question of law – application for leave to appeal on other grounds – breach of statutory warranties – misleading or deceptive conduct |
| Jarvis v Mansted [2018] NSWCATAP 73
Consumer and Commercial Division - Residential Tenancies
Decision of: F Burton SC, FCIArb, Senior Member; K Ransome, Senior Member Catchwords: RESIDENTIAL TENANCY – bond and money orders at end of lease – no notice of hearing – appeal allowed |
| Accardo v Dods [2018] NSWCATAP 74
Consumer and Commercial Division - General
Decision of: R C Titterton, Principal Member; Dr J Lucy, Senior Member Catchwords: CONSUMER LAW – where application heard in absence of a party – where adjournment application refused |
| Gussoni v Burnheim [2018] NSWCATAP 75
Consumer and Commercial Division - General
Decision of: G Curtin SC, Senior Member; G Sarginson, Senior Member Catchwords: APPEAL AND NEW TRIAL – new trial – denial of natural justice and procedural fairness – important evidence not referred to – adequacy of reasons |
| ZFJ v ZEY [2018] NSWCATAP 76
Guardianship Division
Decision of: J Boland ADCJ, Deputy President; M Harrowell, Principal Member; Dr M Spencer, General Member
Catchwords: HUMAN RIGHTS – Civil and Administrative Tribunal Act – error of law – presumption of capacity, whether actual or apprehended bias established – statutory construction – appeal grounds not established |
| Lommerse v Succar [2018] NSWCATAP 77
Consumer and Commercial Division - General
Decision of: G Curtin SC, Senior Member; G Sarginson, Senior Member Catchwords: APPEAL – general principles – no appearance by appellant – dismissal APPEAL – general principles – interference with discretion of tribunal below – no question of principle |
| Leung v Alexakis (No 2) [2018] NSWCATAP 78
Consumer and Commercial Division - General
Decision of: M Harrowell, Principal Member; G Walker, Senior Member Catchwords: COSTS – discretion to award costs |
| Craig v Silva Portfolios Pty Ltd t/as Ballina Waterfront Village & Tourist Park [2018] NSWCATAP 79
Consumer and Commercial Division - Residential Communities
Decision of: K Rosser, Principal Member; S Frost, Senior MemberCatchwords: APPEAL – residential parks – whether sewerage charges are “sanitary charges” – whether a term of an agreement requiring a resident to pay “any excess garbage and sanitary charges” requires the resident to pay all sanitary charges or only excess sanitary charges |
| Reckless v Silva Portfolios Pty Ltd t/as Ballina Waterfront Village & Tourist Park [2018] NSWCATAP 80
Consumer and Commercial Division - Residential Communities
Decision of: K Rosser, Principal Member; S Frost, Senior Member Catchwords: APPEAL – residential parks – whether sewerage charges are “sanitary charges” – whether a term of an agreement requiring a resident to pay “any excess garbage and sanitary charges” requires the resident to pay all sanitary charges or only excess sanitary charges – electricity charges – method of charging for a resident’s consumption of electricity – whether resident has been overcharged |
| Kokontis v Moran [2018] NSWCATAP 81
Consumer and Commercial Division - Home Building
Decision of: A Britton, Principal Member Catchwords: PRACTICE AND PROCEDURE – stay of the decision under appeal – whether appeal is rendered futile – assessment of prejudice to the parties if stay is refused |
| Foremost Electrical Pty Ltd v Moore [2018] NSWCATAP 82
Consumer and Commercial Division - Home Building
Decision of: R C Titterton, Principal Member; J T Kearney, Senior Member Catchwords: PRACTICE AND PROCEDURE – leave to appeal – whether leave to appeal should be granted – no question of principle |
| N & T Buildings Pty Ltd v Ball [2018] NSWCATAP 83
Consumer and Commercial Division - Home Building
Decision of: I Bailey AM SC, Senior Member; D Goldstein, Senior MemberCatchwords: APPEAL – costs – order for representation by legal practitioner – requirement for order under s45 of the Act |
| Shop, Distributive and Allied Employees’ Association and Bernie Smith v Secretary, NSW Treasury [2018] NSWCATAP 84
Administrative and Equal Opportunity Division
Decision of: The Hon F Marks, Principal Member; J Kearney, Senior Member Catchwords: STATUTORY INTERPRETATION – Retail Trading Act 2008 – held exemption from trading restrictions granted by previous legislation continued in force – appeal dismissed |
| McGinn v Barilla [2018] NSWCATAP 85
Consumer and Commercial Division - Residential Tenancies
Decision of: R C Titterton, Principal Member; Dr J Lucy, Senior MemberCatchwords: LANDLORD AND TENANT – residential tenancy agreement – return of bond – whether Tribunal has jurisdiction where bond provided to landlord not lodged with Rental Bond Board in breach of the Residential Tenancies Act 2010 |
| Maiolo v Chiarelli (No 2) [2018] NSWCATAP 86
Appeal Panel Division
Decision of: J Harris SC, Senior Member; D Goldstein, Senior Member Catchwords: COSTS – existence of Special circumstances in connection with an application for costs |
| Piccione v Follari [2018] NSWCATAP 87
Consumer and Commercial Division - Residential Tenancies
Decision of: S Higgins, Senior Member Catchwords: APPEAL – stay – application for a stay of the orders of the Tribunal the subject of the appeal |
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