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| NCAT Appeal Decisions Digest May 2015 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 May 2015. Each case title is hyperlinked to the full decision available on NSW Caselaw. |
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Anel Kurtovic v Irfan Durmo [2015] NSWCATAP 73
Consumer & Commercial Division - Home Building
Judgment of: P DURACK SC; R TITTERTON, Senior Members Catchwords: APPEAL – Civil and Administrative Tribunal (NSW) – home building dispute – new point on appeal not permitted – absence of reasons in limited respects – damages award adjusted – some aspects of damages to be reconsidered |
| Hadidi v Owners Corporation Strata Plan 84787 [2015] NSWCATAP 74
Consumer & Commercial Division - Home Building
Judgment of: N HENNESSY LCM, Deputy President; R TITTERTON, Senior Member Catchwords: APPEAL –Civil and Administrative Tribunal – appeal by appellant builder against an order that he pay respondent $500,000 and costs – appeal lodged out of time – delay short but prospects of success minimal – extension of time refused PROCEDURAL FAIRNESS – opportunity to present evidence and cross-examine witnesses – self-represented party - COSTS – whether special circumstances exist warranting an award of costs – unmeritorious appeal – non- compliance with directions – unnecessarily disadvantaging a party – costs awarded |
| | Rascie Pty Ltd v Stricker [2015] NSWCATAP 76
Consumer & Commercial Division - General
Judgment of: N HENNESSY LCM, Deputy President; R TITTERTON, Principal Member Catchwords: Appeal - Civil and Administrative Tribunal (NSW) – consumer claim - decision of the Tribunal not against the weight of evidence |
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Clarke v Tapp [2015] NSWCATAP 81
Consumer & Commercial Division - Home Building
Judgment of: N HENNESSY LCM, Deputy President; M HARROWELL; G MULLANE, Principal Members Catchwords: CIVIL AND ADMINSTRATIVE TRIBUNAL -internal appeal to Appeal Panel against interlocutory decision to extend time to file an application for costs in a home building matter – leave to appeal refused because no issue of principle, question of public importance or clear injustice – CIVIL AND ADMINISTRATIVE TRIBUNAL - internal appeal to Appeal Panel against ancillary decision that builder pay the homeowner’s costs – exercise of discretionary power – discretion did not miscarry |
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Hajazi v Commissioner of Police, NSW Police Force [2015] NSWCATAP 82
Administrative & Equal Opportunity Division - Administrative Review
Judgment of: N HENNESSY LCM, Deputy President; P MOLONY, Senior Member Catchwords: ADMINISTRATIVE LAW – merits review -– revocation of firearms licences – meaning of public interest ground – relationship between public interest ground and other grounds for revocation – adequacy of reasons – whether considering revocation on grounds of fitness instead of public interest was a material error - effect of mistakes of fact |
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Pillay v Ku-ring-Gai Council [2015] NSWCATAP 83
Consumer & Commercial Division - Tenancy
Judgment of: S WESTGARTH, Deputy President; R TITTERTON, Senior Member Catchwords: Appeal – costs – whether special circumstances established – special circumstances not established |
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Tadrosse v Ndaira [2015] NSWCATAP 84
Consumer & Commercial Division - Home Building
Judgment of: P DURACK SC, Senior Member; R TITTERTON, Senior Member Catchwords: APPEAL – Civil and Administrative Tribunal (NSW) – appellant bankrupt at all material times – impact on appeal and on decision below |
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Nguyen v Schneider [2015] NSWCATAP 85
Consumer & Commercial Division - Tenancy
Judgment of: S WESTGARTH, Deputy President; R TITTERTON, Senior Member Catchwords: Tenants obligations under Residential Tenancies Act 2010,s 51(3) and (5) |
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BTD v NSW Trustee and Guardian [2015] NSWCATAP 87
Guardianship Division - Enduring Power of Attorney
Judgment of: N HENNESSY LCM, Deputy President; D ROBINSON, Principal Member; J KOUSSA, General Member Catchwords: GUARDIANSHIP – internal appeal - operation and effect of power of attorney – question of law - procedural fairness – evidence adduced from person in absence of other parties – appeal on ‘other grounds’ – weight of evidence - incorrect evidence and mistakes of fact - further evidence |
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Burton v Chad One Pty Ltd [2015] NSWCATAP 88
Consumer & Commercial Division - Motor Vehicles
Judgment of: M CHESTERMAN, Principal Member; S THODE, Senior Member Catchwords: Australian Consumer Law – ‘acceptable quality’ – adequacy of reasons for decision – whether decision against weight of evidence |
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BTK v The Public Guardian NSW [2015] NSWCATAP 89
Guardianship Division - Guardianship Order, Financial Management Order
Judgment of: J REDFERN, Principal Member; P DURACK SC, Senior Member; S JOHNSTON, General Member Catchwords: APPEAL – applications for guardianship and financial management – applications dismissed – failure to take into account relevant matters in exercise of discretion – failure to provide reasons – applicant excluded from attending the hearing – participation by telephone – procedural fairness |
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Steinbeck, Sonia and Steinbeck, Graeme v McDonald [2015] NSWCATAP 90
Consumer & Commercial Division - Tenancy
Judgment of: A BRITTON, Principal Member; K ROSSER, Senior Member Catchwords: ADMINISTRATIVE LAW – appeal from Consumer and Commercial Division of NCAT – extension of time to lodge the Notice of Appeal – whether question of law is raised – whether leave to appeal should be granted – whether decision under appeal was fair and equitable – whether decision under appeal was against the weight of evidence – whether significant new evidence has arisen PROCEDURAL FAIRNESS – actual bias – whether Tribunal erred by disregarding certain evidence STATUTORY INTERPRETATION – construction of Residential Tenancies Act 2010 (NSW) – meaning of word “may” |
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Gergs v Arslan t/as B&D Car Gallery [2015] NSWCATAP 91
Consumer & Commercial Division - Motor Vehicle
Judgment of: M SCHYVENS, Deputy President; M HARROWELL, Principal Member Catchwords: Illegal contracts – construction of statute Implied terms – necessary to give business efficiency or give effect to a bargain |
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Magill v Dilworth [2015] NSWCATAP 92
Consumer & Commercial Division - Home Building
Judgment of: A COLEMAN SC; P H MOLONY, Senior Members Catchwords: Home Building – Appeal – no errors of law – application for leave to appeal – decision fair and equitable – decision not against weight of the evidence – leave refused – appeal dismissed |
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McErlane v Kelly [2015] NSWCATAP 93
Consumer & Commercial Division - Home Building
Judgment of: J SMITH; P WASS SC, Senior Member Catchwords: ADMINISTRATIVE LAW - procedural fairness – absence at the hearing – case not adequately put – evidence required of case to be put had the party been present at the hearing |
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eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94
Consumer & Commercial Division - General
Judgment of: A P COLEMAN SC; P H MOLONY, Senior Member Catchwords: CONTRACT: formation; breach, damages. COSTS: indemnity costs, whether conduct of hearing by one party warranted award. Costs compensatory not punitive. Scope of costs recoverable by litigant in person |
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Massoud Dogmesaz t/as Symphony Kitchens v Margaret Christine Moss [2015] NSWCATAP 95
Consumer & Commercial Division - Home Building
Judgment of: The Hon D A COWDROY OAM QC, Principal Member; P H MOLONY Senior Member Catchwords: Practice and Procedure: Application for leave to appeal: appellant failing to attend callover and hearing-: no adequate explanation for such failure: no arguable defence; leave refused [include all causes listed in decision] |
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Donoghoe v Compass Housing Services [2015] NSWCATAP 97
Consumer & Commercial Division - Social Housing
Judgment of: J REDFERN, Principal Member; G MEADOWS; J RENWICK SC, Senior Members Catchwords: APPEAL – error of law in failing to making finding on material facts – adequacy of reasons |
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Chief Commissioner of State Revenue v Danny and Steven Knezevic [2015] NSWCATAP 98
Administrative & Equal Opportunity Division - Revenue
Judgment of: The Hon DA COWDROY OAM QC; A BRITTON, Principal Members Catchwords: ADMINISTRATIVE LAW — stamp duty — whether an interest in land constitutes “dutiable property” —whether exemption for stamp duty on “matrimonial property” applies where property purchased by former party to the marriage and third party, as tenants-in-common |
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