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| NCAT Appeal Decisions Digest November 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 November 2015. Each case title is hyperlinked to the full decision available on NSW Caselaw. |
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ZAA v NSW Trustee and Guardian [2015] NSWCATAP 234
Guardianship Division - Financial Management
Judgment of: WRIGHT J, President; HENNESSY LCM, Deputy President; Dr M WROTH, Senior Member (Professional)Catchwords: PRIVATE FINANCIAL MANAGEMENT – appeal from decision to revoke appointment of private financial manager – procedural fairness – private financial manager did not receive notice of hearing until he returned from an overseas holiday – no opportunity to be heard before a decision adverse to his interests is made – application to revoke appointment of financial manager dealt with by way of new hearing – appointment confirmed |
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Smolenski v Commissioner of Police [2015] NSWCATAP 235
Administrative & Equal Opportunity Division - GIPA
Judgment of: A/Judge O'CONNOR AM, Deputy President; Dr J LUCY, Senior Member Catchwords: GOVERNMENT INFORMATION (PUBLIC ACCESS) – Appeal – no questions of law in the appeal as formulated – application for leave to extend to other grounds – granted with respect to Tribunal’s decision in relation to the information sought by the access applicant in relation to the screening of his application for employment – as a result of Tribunal decision granted access to confidential memorandum provided to agency by former employer – need to consider effect of that decision on the balancing of the considerations that favoured the continued non-disclosure of other communications – need to consider the personal factors favouring release |
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Coroneos v Trade Compliance Group Pty Ltd [2015] NSWCATAP 236
Consumer & Commercial Division - Home Building
Judgment of: S HIGGINS, Principal Member; S THODE, Senior Member Catchwords: Appeal – home building – defective and incomplete work - premature application for damages while contract on foot – construction and application of cl 12(a) of the contract that enabled the homeowner to withhold payment of a progress payment claim by the builder – adequacy of reasons |
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Steele & Associates Pty Ltd v Heath [2015] NSWCATAP 239
Consumer & Commercial Division - Home Building
Judgment of: A P COLEMAN SC; P BOYCE, Senior Members Catchwords: CONTRACT- whether repudiation or non-performance of contractual obligations precludes claim under warranties implied by Home Building Act. PROCEDURE- procedural fairness- right to cross-examine – whether party denied procedural fairness. HOME BUILDING ACT – implied warranties |
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AIN v Medical Council of New South Wales [2015] NSWCATAP 241
Administrative & Equal Opportunity Division - GIPA
Judgment of: A P COLEMAN SC; Dr J LUCY, Senior Members Catchwords: GOVERNMENT INFORMATION – Client legal privilege – Whether Tribunal addressed the question of whether disclosure of document would disclose the content of a confidential communication – Whether Tribunal considered whether there was a real prospect of litigation – Whether Tribunal considered whether in-house lawyer had requisite independence when advising in relation to a complaint concerning conduct of the respondent for which she was responsible; GOVERNMENT INFORMATION – Personal information – Whether information of agency officer is personal information – Balancing of public interest considerations; FACT FINDING - Whether the Tribunal made findings of fact required for conclusions as to application of privilege with no evidence to support findings – Whether Tribunal entitled to draw inferences - Whether circumstances gave rise to a reasonable and definite inference – Whether Tribunal entitled to consider evidence in previous proceedings involving same parties; APPEAL – Whether grounds of appeal limited to those identified in notice of appeal – Tribunal’s duty to resolve the real issues in the proceedings with as little formality as possible; PROCEDURAL FAIRNESS – Whether Tribunal erred in making a finding that litigation privilege applied when this was not part of respondent’s case; COSTS –Appeal on decision not to award costs- special circumstances- whether objective test |
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Thomas v Goldie [2015] NSWCATAP 243
Consumer & Commercial Division - Tenancy
Judgment of: HENNESSY LCM, Deputy President; S THODE, Senior Member Catchwords: RESIDENTIAL TENANCY – tenancy terminated because tenant frequently failed to pay rent – tenancy terminated - claim for rent reduction refused – appeal on grounds of procedural fairness – appeal on merits of rent reduction claim – no breach of procedural fairness – leave to appeal on other grounds refused |
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Kwok v Tahiri [2015] NSWCATAP 244
Consumer & Commercial Division - Tenancy
Judgment of: A BRITTON, Principal Member; T SIMON, Senior Member Catchwords: APPEAL – practice and procedure – Civil and Administrative Tribunal (NSW) – application for extension of time in which to appeal – whether adequate explanation for delay in filing notice of appeal has been provided; LANDLORD AND TENANT – termination of tenancy agreement – factors relevant to issue of declaration under s 111(2) of Residential Tenancies Act 2010 – nature of landlord’s obligation under s 63 of Residential Tenancies Act 2010 to maintain premises in a “reasonable state of repair”; COSTS – whether parties’ opinion that they needed legal representation constitutes “special circumstances” |
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Tadros v Dumond [2015] NSWCATAP 245
Consumer & Commercial Division - Tenancy
Judgment of: J REDFERN PSM, Principal Member; R C TITTERTON, Senior MemberCatchwords: CIVIL AND ADMINISTRATIVE TRIBUNAL – application for an extension of time in which to file notice of appeal – principles |
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Lee v Tat [2015] NSWCATAP 247
Consumer & Commercial Division - Commercial
Judgment of: M HARROWELL, Principal Member; S THODE, Senior Member Catchwords: Jurisdiction- agricultural tenancy agreement Set-off- need to adduce evidence of claim |
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Wilson v Commissioner of Police, New South Wales Police Force [2015] NSWCATAP 248
Administrative & Equal Opportunity Division - Administrative Review
Judgment of: HENNESSY LCM, Deputy President; K ROSSER, Senior Member Catchwords: ADMINISTRATIVE LAW – refusal of application for licence under Firearms Act 1996 (NSW) - whether any evidence to support a finding of fact – whether inference can be drawn that it is not in the public interest for applicant to be given a firearms licence on the basis of remaining findings – notice of contention – whether appropriate to raise by contention matters already ventilated at first instance |
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Thiessen v Poolsurf QLD Pty Ltd [2015] NSWCATAP 250
Consumer & Commercial Division - Home Building
Judgment of: S WESTGARTH, Deputy President; S THODE, Senior MemberCatchwords: Leave to appeal – decision not fair and equitable – against the weight of the evidence |
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RSL Life Care Ltd v Lamb [2015] NSWCATAP 251
Consumer & Commercial Division - Retirement Villages
Judgment of: L ROBBERDS QC; S THODE Senior Members Catchwords: RETIREMENT VILLAGES - Village Contract – prescribed standard form – non-compliance with prescribed form – maximum amount payable by resident for legal and other expenses incurred by operator in connection with preparation of village contract fixed at $200 – loan agreement required residents to pay $600 towards the costs of preparation of that agreement – was the loan agreement a village contract |
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Nelmeer Ashfield Pty Ltd v Farah [2015] NSWCATAP 252
Consumer & Commercial Division - Commercial
Judgment of: P R CALLAGHAN SC, Principal Member; R C TITTERTON, Senior Member Catchwords: CONTRACT - catering services agreement in licensed hotel premise – dispute over termination – declaratory and injunctive relief; SEPARATE ISSUE - Appealed orders made in separate issue hearing – no sufficiently clear formulation of separate issue – appealed orders not interlocutory and leave to appeal not required; PRACTICE AND PROCEDURE - Directions in appeal as to lodgement of written submissions and other material not complied with; APPEALS - new matters raised in appeal; CONTRACTS - Agreement not rendered void and unenforceable on account of no approval of Independent Liquor and Gaming Authority – term of 5 years not inconsistent with terms of any head lease – not a shop used wholly or predominantly for the carrying on of a business on behalf of hotel – certificate under s 16 of Retail Leases Act not condition precedent to agreement |
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Couch v NSW Land and Housing Corporation [2015] NSWCATAP 253
Administrative & Equal Opportunity Division - Equal Opportunity
Judgment of: The Hon D A COWDROY OAM, Principal Member; J WAKEFIELD, Senior Member, M BOLT, General Member Catchwords: APPEAL - procedure – interim order in the nature of a prohibitory injunction – powers of Tribunal under s 105 of Anti-Discrimination Act 1977 to adjourn or stay proceedings under the Residential Tenancies Act, 2010 |
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Dusanovski v Xiao [2015] NSWCATAP 254
Consumer & Commercial Division - Tenancy
Judgment of: HENNESSY LCM, Deputy President; T SIMON, Senior Member Catchwords: APPEAL – out of time – reasonable explanation for delay but no prospects of success |
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Smith, Gregory v NSW Land and Housing Corporation [2015] NSWCATAP 255
Consumer & Commercial Division - Social Housing
Judgment of: J REDFERN PSM, Principal Member; D GOLDSTEIN, Senior MemberCatchwords: APPEAL – Civil and Administrative Tribunal (NSW) – residential tenancy dispute – urgent telephone hearing – procedural fairness – inability to cross examine witnesses – whether Briginshaw standard of proof applies – whether no evidence to support findings of fact |
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ACT Builders Pty Ltd v Haridemos [2015] NSWCATAP 256
Consumer & Commercial Division - Home Building
Judgment of: H HARROWELL, Principal Member; S THODE, Senior Member Catchwords: CIVIL AND ADMINISTRATIVE TRIBUNAL- Appeal Civil and Administrative Tribunal (NSW) – whether grounds raise questions of law - s80, cl12 of schedule 4, whether decision fair and equitable – whether decision against the weight of the evidence – discretion to grant leave not enlivened – leave application refused Denial of fairness- evidence provided in re-examination Measure of damages- rectification of work not in accordance with contract |
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