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| NCAT Appeal Decisions Digest May 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 May 2016. Each case title is hyperlinked to the full decision available on NSW Caselaw. |
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| Significant Decisions
The following case summaries are of significant decisions handed down by the NCAT Appeal Panel during May 2016. |
| Sola v Yallah Project Homes Pty Ltd [2016] NSWCATAP 96
Consumer & Commercial Division - Home Building
Judgment of: Dr J Renwick SC; D Goldstein, Senior Members
Summary: This decision provides guidance as to the proper construction of provisions in Part 2C of the Home Building Act 1989 (NSW) (the Act).
The appellants owned land and, after obtaining development approval to construct a duplex on that land, entered into a contract with the respondent builder to construct that duplex (at [3]). After water damage to the duplex's garages, the appellants commenced proceedings against the builder. By this time, both portions of the duplex had been sold and the new owners also commenced proceedings against the builder, which was before the appellants' proceedings had been heard. The new owners subsequently withdrew their proceedings, which were then dismissed under s 55(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).
The Tribunal at first instance held that (see [7] of the Appeal Panel decision):
(1) The s 55(1)(a) dismissal of the proceedings brought by the new owners against the builder was fatal to the claims brought by the appellants against the builder, and thus summarily dismissed the appellants' claims;
(2) The appellants (or at least one of them) was a "developer" within the meaning of s 18C of the Act;
(3) When the appellants sold the duplexes, their rights directly to enforce breach of the s 18B warranties were simultaneously "extinguished" and passed to their successors in title (the new owners).
In relation to (1), the Appeal Panel held that the Tribunal had misconstrued s 18D of the Act, by treating a dismissal following a withdrawal of the proceedings as a case where "the warranty has already been enforced" (at [15]).
In relation to (2), the Appeal Panel held that the Tribunal had erred in treating the appellants as "developers" under the Act when, "by reason of the definition of 'developer' in s 3A of the Act, land owners are permitted to have residential work carried out on their behalf which results in no more than 3 existing or proposed dwellings being owned by them, without them being defined as a 'developer' for the purposes of the Act" (at [36]).
In relation to (3), the Appeal Panel held that "s 18C does not "extinguish" or result in the loss of ... rights ... [r]ather, it extends those rights to immediate successors in title as specified in s 18C(1)" (at[40]).
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| Ravenscroft v Skinner [2016] NSWCATAP 107
Consumer & Commercial Division - General
Judgment of: N Hennessy LCM, Deputy President; K Rosser, Senior Member
Summary: Ravenscroft brought proceedings against the Skinners (t/as Skinner Marine) alleging that, when supplying a boat, Skinner Marine engaged in deceptive or misleading conduct in breach of s 18 of the ACL (NSW) or that Skinner Marine had breached the consumer guarantee in s 54 of the ACL (NSW). Ravenscroft was successful and was awarded damages. Ravenscroft later brought a second set of proceedings based on the same claim or cause of action. The Tribunal dismissed the second proceedings, relying on issue estoppel, or as an alternative, Anshun estoppel. The Appeal Panel held that the Tribunal was correct to dismissed the second proceedings and in doing so summarised the principles relating to issue estoppel outlined in Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28:
[9] Issue estoppel in relation to judicial determinations is a common law doctrine informed by considerations of finality and fairness. It operates “as a rule of law, to preclude the assertion of a right or obligation or the raising of an issue of fact or law”: Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28 at [21] citing Jackson v Goldsmith (1950) 81 CLR 446 at 446. The High Court has identified three forms of estoppel: cause of action estoppel, issue estoppel and Anshun estoppel.
[10] Cause of action estoppel prevents a party from asserting in a subsequent proceeding a claim to a right or obligation which was asserted in earlier proceedings between the same parties and in relation to which a final judgment or decision was made. That doctrine applies to the facts of this case because the second proceedings were based on the same claim or cause of action that Mr Ravenscroft made in the first proceedings. That claim was that when supplying the boat, Skinner Marine engaged in deceptive or misleading conduct in breach of s 18 of the ACL (NSW) or that Skinner Marine had breached the consumer guarantee in s 54 of the ACL (NSW). The Tribunal determined those claims in the first proceedings and awarded Mr Ravenscroft damages.
[11] [Issue estoppel] operates “to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination” made in the first proceedings: Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28 at [22]...
[12] The High Court has described [Anshun estoppel] as an extension of the first and second forms: Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28 at [22]. It operates to preclude the assertion of a claim or the raising of an issue of fact or law “if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding:” Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28 at [22]...
[14] It is an abuse of process to attempt to re-litigate issues which have already been determined in previous proceedings: Stokes (by a tutor) v McCourt [2013] NSWSC 1014. The Tribunal had power to dismiss the proceedings as misconceived: NCAT Act, s 55(1)(b).
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Keyword Summaries
Keyword summaries for all NCAT Appeal Panel decisions made during May 2016. |
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Elgun v Green Line Excavations Pty Ltd [2016] NSWCATAP 94
Consumer & Commercial Division - General
Judgment of: N Hennessy LCM, Deputy President; S Thode, Senior Member Catchwords: CONSUMER CLAIM – whether $3,817.35 was a reasonable price for the works carried out – whether appellant denied procedural fairness by not receiving respondent’s evidence |
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Abdel-Messih v Field [2016] NSWCATAP 95
Consumer & Commercial Division - Tenancy
Judgment of: O Shub, Principal Member; S Thode, Senior Member Catchwords: Appeal – Civil & Administrative Tribunal (NSW). Consumer and Commercial Division – Internal Appeal – Question of Law – Whether Tribunal gave adequate reasons for its decision - Residential tenancy, nuisance, assault on landlord, weight of evidence |
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Sola v Yallah Project Homes Pty Ltd [2016] NSWCATAP 96
Consumer & Commercial Division - Home Building
Judgment of: Dr J Renwick SC; D Goldstein, Senior MembersCatchwords: CIVIL AND ADMINISTRATIVE TRIBUNAL – Appeal Panel – Home Building Act claim – Tribunal dismissed claim against builder as being frivolous, vexatious, or otherwise misconceived or lacking in substance – errors of law by Tribunal – appeal allowed – matter remitted to be heard by differently constituted Tribunal |
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Yarraford Pastoral Company Pty Ltd v Wise [2016] NSWCATAP 97
Consumer & Commercial Division - General
Judgment of: Hennessy LCM, Deputy President; T Simon, Senior Member Catchwords: COSTS – general rule is each party is to pay their own costs – whether special circumstances warranting an award of costs |
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Lauer v Comer [2016] NSWCATAP 99
Consumer & Commercial Division - Home Building
Judgment of: D Patten, Principal Member; R Titterton, Senior Member Catchwords: Appeal against allowance of quantum meruit – insufficient findings to support allowance |
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Chandershekar v Hakim [2016] NSWCATAP 100
Consumer & Comemrcial Division - Home Building
Judgment of: P Callaghan SC, Principal Member; D Robertson, Senior Member Catchwords: Home building – consent orders – extension of time for commencement of appeal – no reasonable prospects of success |
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Pedonese v McRae [2016] NSWCATAP 101
Consumer & Commercial Division - General
Judgment of: O Shub, Principal Member; J Wakefield, Senior Member Catchwords: Administrative law, Civil and Administrative Tribunal (NSW), Flooring, defective workmanship, decision not just and equitable, against the weight of the evidence and new evidence which was not reasonably available at the time of the hearing |
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Central West Autos Pty Ltd v Boyd [2016] NSWCATAP 102
Consumer & Commercial Division - Motor Vehicle
Judgment of: P Callaghan SC, Principal Member; D Robertson, Senior Member Catchwords: APPEAL – error of law – whether Appellant denied procedural fairness – no material to support allegation LEAVE TO APPEAL – foundation for leave not established |
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CPD Holdings Pty Limited v Baguley [2016] NSWCATAP 103
Consumer & Commercial Division - Motor Vehicle
Judgment of: N Hennessy LCM, Deputy President; J Lucy, Senior Member Catchwords: APPEAL – costs decision in home building case – claims by both builder and homeowners – builder’s claim settled – homeowners’ claim determined – costs principles when proceedings settle – costs principles when proceedings determined |
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Li v Ward Building Construction Pty Ltd [2016] NSWCATAP 104
Consumer & Commercial Division - Home Building List
Judgment of: Boland AM ADCJ; Hennessy LCM, Deputy Presidents Catchwords: STATUTORY INTERPRETATION – meaning of “decision … made in the absence of a party” in clause 9(1)(b) of the Civil and Administrative Tribunal Regulation 2013 - application to vary or set aside a decision – whether a reserved decision can be said to be made in the absence of a party |
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Marine Energy Systems Pty Ltd v Crich [2016] NSWCATAP 105
Consumer & Commercial Division - General
Judgment of: P Durack SC; J Kearney, Senior Members Catchwords: APPEAL – breach of contract in supply of second-hand boat engine – assessment of damages – Tribunal below mistakenly included costs to install in boat – whether decision also not fair and equitable or against the weight of the evidence |
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Head Mod Nominees Pty Ltd v Macken [2016] NSWCATAP 106
Consumer & Commercial Division - Motor Vehicle
Judgment of: S Higgins, Principal Member; Dr J Lucy, Senior Member Catchwords: ADMINISTRATIVE LAW – appeal – adequacy of reasons – expert evidence – non-compliance with procedural direction – whether appellant may have suffered a substantial miscarriage of justice because the decision is not just and equitable and against the weight of the evidence |
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Ravenscroft v Skinner [2016] NSWCATAP 107
Consumer & Commercial Division - General
Judgment of: N Hennessy LCM, Deputy President; K Rosser, Senior MemberCatchwords: APPEAL – estoppel – appellant made claim under Australian Consumer Law for damages to a boat – damages awarded – appellant made second claim under Australian Consumer Law for further damages – Tribunal dismissed second application – whether the making of the first order created a cause of action estoppel on which Skinner Marine was entitled to rely in subsequent proceedings |
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Augustus v Mohammed [2016] NSWCATAP 108
Consumer & Commercial Division - Home Building
Judgment of: P Callaghan SC, Principal Member; S Thode, Senior MemberCatchwords: APPEAL – NCAT internal appeal – appeal dismissed – application for leave to appeal dismissed – extension of time for institution of appeal – identification of questions of law – issue not raised at hearing PROCEDURAL FAIRNESS – case management – bias HOME BUILDING ACT – s3A – s48MA LEAVE TO APPEAL – fairness – new evidence – weight of evidence EVIDENCE – expert evidence – costs of expert’s report PROCEDURE – no order made in appealed decision in respect of one respondent – stay - costs |
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Oppidan Homes Pty Ltd v Baldwin and Granofsky [2016] NSWCATAP 109
Consumer & Commercial Division - Home Building
Judgment of: S Westgarth, Deputy President; D Robertson, Senior MemberCatchwords: Home Building – Error of law - determination that claims not supported by evidence – Tribunal Member failing to take evidence into account Issue not raised or argued below – whether issue can be raised on appeal Respondent’s challenge to factual findings – whether permissible in absence of error of law |
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Theophilas v Chief Commissioner of State Revenue [2016] NSWCATAP 111
Administrative & Equal Opportunity Division - Revenue
Judgment of: O'Connor AM, ADFJ, Deputy President Appeals; R Deutsch, Senior Member Catchwords: STATE REVENUE – Land tax – principal place of residence exemption – concession in relation to unoccupied land intended to be the owner’s principal place of residence after completion of building works – concession not applicable if owner in the meantime uses and occupies other land owned by him as principal place of residence – Tribunal held correct the Commissioner’s assessment of other land as exempt and not the unoccupied land – Appeal by owner - questions of law – the Tribunal’s characterisation of the issue before it – application of taxpayer’s onus – construction of ‘principal place of residence’, ‘use’ and ‘occupation’ – whether in light of undisputed facts Tribunal’s finding manifestly unreasonable – appeal dismissed. Land Tax Management Act 1996, s 3(1), s 10(1)(r); Sch 1A, cl 2(2)(a), cl 6(7)(a), cl 6(3)(b) |
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Jing Sun v Jun Li; Jun Li v Jing Sun [2016] NSWCATAP 112
Consumer & Commercial Division - Home Building
Judgment of: A Coleman SC; J Currie, Senior Members Catchwords: APPEAL: leave to appeal; no issues of principle HOME BUILDING ACT: Home Warranty Insurance; whether insurance for full contract price PROCEDURAL FAIRNESS: where Tribunal overlooked issue of costs of proceedings |
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Brodyn Pty Ltd v Owners Corporation Strata Plan 73019 [2016] NSWCATAP 113
Consumer & Commercial Division - Home Building
Judgment of: M Harrowell, Principal Member; R Titterton, Senior Member Catchwords: Evidence – failure to consider, error of law Construction of Deed – relevance of surrounding circumstances Home Building Act 1989 – s 18D, prior enforcement Betterment – circumstances when allowance should be made, onus of proof Section 48MA – application to proceedings commenced prior to commencement of Home Building Amendment Act 2014 |
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