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| NCAT Appeal Decisions Digest November 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 November 2016. Each case title is hyperlinked to the full decision available on NSW Caselaw. |
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| The following case summaries are of significant decisions handed down by the NCAT Appeal Panel during November 2016.
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| Yuen v Thom [2016] NSWCATAP 243
Consumer & Commercial Division - Consumer claim
Judgment of: R Seiden SC, Principal Member; L Robberds QC, Senior Member
The Appeal Panel considered the nature of an appeal under the NCAT Act (at [14]-[21]) and the tripartite classification of appeals. The Appeal Panel concluded that, where an Appeal Panel is satisfied that “the grounds of appeal warrant a new hearing” under s 80(3) of the NCAT Act and conducts a new hearing, that appeal is a hearing de novo or new hearing: [17]. Otherwise, internal appeals to the Appeal Panel are not determined by way of a new hearing ([17]) but are akin to a rehearing ([20]):
19 The question then arises as to the nature of an appeal that is not being determined by way of a new hearing. Having regard to s 36 of the Act and that the guiding principle of the Act is to facilitate “the just, quick and cheap resolution of the real issues in the proceedings” and that this principle is to be employed when construing any provision of the Act (s 36(2)(b) of the Act), we have concluded that an appeal in the strict sense would be unduly constraining on the Tribunal and not facilitate the guiding principle. Having regard to the guiding principle, an appeal under s 80(1) (that is not to be determined by way of a new hearing) is one that would facilitate an Appeal Panel to “[avoid] errors which cannot be otherwise remedied by the application of the conventional appellate procedures” (CDJ v VAJ (No 1) (1998) 197 CLR 172; [1998] HCA 67 (at [109]) per McHugh, Gummow and Callinan JJ as extracted in Engelbrecht at [61]). This is an appeal that admits of the receipt of further evidence where applicable. This conclusion is supported by, s 38(1) which provides that the Tribunal may determine its own procedure, where the procedural rules do not otherwise make provision. Further still, sch 4, cl 12(1)(c) expressly contemplates the receipt of significant new evidence on an appeal (i.e., evidence that was not reasonably available at first instance) and it would not seem to be necessary to determine an appeal by way of new hearing in every case where an appeal was by leave due to the emergence of such significant new evidence.
20 The ability to receive further evidence is a hallmark of a rehearing (Engelbrecht at [60]). Accordingly, we are satisfied that in an appeal that is not being determined by way of a new hearing, the Appeal Panel would conduct an appeal akin to a rehearing, with the ability to receive further evidence. |
| Waters v Waghorn [2016] NSWCATAP 247
Consumer & Commercial Division - Consumer claim
Judgment of: R Seiden SC, Principal Member; DAC Robertson, Senior Member
The Tribunal at first instance determined proceedings adversely to the appellant in her absence. The appellant contended that she had been denied procedural fairness because, despite having notice of the hearing, she was unable to avail herself of the opportunity to be heard due to her ill health and personal circumstances ([28]). The Appeal Panel considered the circumstances in which it will receive further evidence when the appeal is by way of rehearing, not a new hearing under s 80(3), and is on a question of law (at [29]-[36]):
30 Appeals on questions of law do not readily lend themselves to the receipt of further evidence, as the appeal is limited to the particular question of law. The question of law is the subject matter of the appeal: see Ferella v Chief Commissioner of State Revenue (NSW) [2014] NSWCA 378 at [22]. In many cases, error of law will be established solely on the material before the decision maker (such as where the exercise of discretion has miscarried): House v The King (1936) 55 CLR 499 at 504-5. However, in Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 at [13]-[14], a majority of the Full Court of the Federal Court of Australia held, in the context of an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), that an appeal on a question of law concerning the denial of procedural fairness may warrant the receipt of evidence that was not before the original decision maker, in order to prove the denial of natural justice.
31 The Appeal Panel accepts that where the question of law is whether or not there has been a denial of procedural fairness, it may be appropriate to look at material that was not before the original decision maker: this may be the only way to prove the breach. This is for the reason that whether there has been a denial of procedural fairness depends on all the circumstances: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [26]. There are a myriad of cases concerning appeals on the grounds of a breach of procedural fairness that suggest as much …
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Keyword summaries for NCAT Appeal Panel decisions made during November 2016.
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Saeedi v Fisher & Paykel Applicances Pty Ltd [2016] NSWCATAP 235
Consumer & Commercial Division - Consumer claim
Judgment of: A Britton, Principal Member; P Molony, Senior Member Catchwords: APPEAL — Civil and Administrative Tribunal (NSW) — Consumer and Commercial Division — whether finding about causation was “against the weight of evidence” — whether decision was not fair and equitable — whether significant new evidence has arisen PROCEDURAL FAIRNESS — bias — actual bias —onus to establish actual bias EVIDENCE — whether finding about causation was “against the weight of evidence” — approach to drawing permissible inferences from the available material |
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Wilson v Chan & Naylor Parramatta Pty Ltd as trustee for Chan & Naylor Parramatta Trust [2016] NSWCATAP 236
Consumer & Commercial Division - Consumer claim
Judgment of: P Durack SC; Dr J Lucy, Senior Members Catchwords: CASE MANAGEMENT – Rejection of material filed the day before a hearing – Inflexibility of approach – Failure to exercise discretion according to law ADJOURNMENT – Applicant had filed material late on which he wished to rely - Applicant sought to join another party – Respondent said it could not adequately respond to late material - Claim was complex - Parties not legally represented – Failure to consider adjournment constituted error of law JOINDER – Whether Tribunal applied correct statutory test for joining a party when determining appellant’s joinder application – Tribunal determined not to join a person on case management grounds – Tribunal failed to apply statutory test correctly |
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Renda v Wu [2016] NSWCATAP 238
Consumer & Commercial Division - Tenancy
Judgment of: R Seiden SC, Principal Member; Dr J Lucy, Senior MemberCatchwords: APPEALS – Leave to appeal out of time from decisions in two proceedings which were heard together – Appellant instructed by Tribunal registry to obtain independent advice before lodging appeal – Appellant took reasonable steps to obtain such advice - Delay in obtaining advice – Leave granted PROCEDURAL FAIRNESS – Opportunity to be heard – Witnesses’ evidence relied upon by Tribunal to make findings on disputed questions of fact – Two witnesses not present at hearing - Failure to explain to self-represented party process of cross examination – Failure to invite self-represented party to apply for adjournment so that party might cross examine absent witnesses – Denial of procedural fairness established REMEDY – Whether denial of procedural fairness could make no difference to outcome – Consideration by Tribunal of application on its merits notwithstanding that it was out of time - Failure of Tribunal to consider extension of time – Impossible to conclude that breach of rules of procedural fairness could make no difference to outcome where extension not considered – Matter remitted for redetermination |
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Antworks Pty Ltd v Mac [2016] NSWCATAP 240
Consumer & Commercial Division - Home building
Judgment of: M Harrowell, Principal Member; D Goldstein, Senior MemberCatchwords: Stay pending appeal- applicable principles, capacity to pay, suspension of builder’s licence |
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Alexakis v AAI Limited t/as GIO Insurance [2016] NSWCATAP 241
Consumer & Commercial Division - Consumer claim
Judgment of: M Harrowell, Principal Member; D Goldstein, Senior MemberCatchwords: Adequacy of reasons- error of law, failure to deal with significant evidence and explain process in rejecting evidence. Leave to appeal- inferences drawn, weight of evidence, substantial miscarriage of justice Damages- breach of obligation of insurer to indemnify insured, liability of insurer for interest on unpaid judgement against insured unable to pay. |
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ZAH v ZAI [2016] NSWCATAP 242
Guardianship Division - Guardianship orders
Judgment of: Hennessy LCM, Deputy President; J Currie, Senior Member; L Porter, Gneral Member (Community) Catchwords: GUARDIANSHIP – guardianship orders and appointment of guardians – appeals from orders of NSW Civil and Administrative Tribunal – question of law – adjournment request– out of time – costs sought against subject person |
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Yuen v Thom [2016] NSWCATAP 243
Consumer & Commercial Division - Consumer claim
Judgment of: R Seiden SC, Principal Member; L Robberds QC, Senior MemberCatchwords: CIVIL AND ADMINISTRATIVE TRIBUNAL – appeal from consent orders made by the Consumer and Commercial Division – whether Tribunal complied with s 59 of the Civil and Administrative Tribunal Act 2013 when making orders to give effect to an agreed settlement – whether there are any other grounds on which consent orders should be set aside CIVIL AND ADMINISTRATIVE TRIBUNAL – Appeal Panel – nature of the appeal - additional evidence– whether leave should be granted |
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Prenc v Stojcevski [2016] NSWCATAP 244
Consumer & Commercial Division - Tenancy
Judgment of: Wright J, President; C Fougere, Principal MemberCatchwords: CIVIL AND ADMINISTRATIVE TRIBUNAL - appeal from consent orders made by the Consumer and Commercial Division - whether Tribunal complied with s 59 of the Civil and Administrative Tribunal Act 2013 when making orders to give effect to an agreed settlement - whether there are any other grounds on which consent orders should be set aside |
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Sahade v Gilster [2016] NSWCATAP 245
Consumer & Commercial Division - Strata
Judgment of: Hennessy LCM, Deputy President; B Tamberlin QC, Principal Member Catchwords: STATUTORY INTERPRETATION – meaning of “change in the permitted land use” in s 183(2)(b) of the Strata Schemes Management Act 1996 – meaning of “the same validity and effect as it would have had if the error or omission had not occurred” in s 12(1)(c) of the Real Property Act 1900 (NSW) |
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Tanious v NSW Land and Housing Corporation [2016] NSWCATAP 246
Consumer & Commercial Division - Social housing
Judgment of: Wright J, President; Emeritus Prof G De Q Walker, Senior MemberCatchwords: RESIDENTIAL TENANCY – appeal from order to remove metal coverings from windows under s 187 of the Residential Tenancies Act 2010 – whether right to quiet enjoyment entitled tenant to install metal coverings without prior written permission – tenant not entitled to install metal coverings RESIDENTIAL TENANCY – whether Tribunal erred in law by relying on inadmissible or otherwise inappropriate evidence – Tribunal not bound by Uniform Civil Procedure Rules 2005 – Tribunal not bound by rules of evidence in these proceedings – no error in Tribunal’s approach to evidence demonstrated |
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Waters v Waghorn [2016] NSWCATAP 247
Consumer & Commercial Division - Consumer claim
Judgment of: R Seiden SC, Principal Member; DAC Robertson, Senior MemberCatchwords: APPEAL - Civil and Administrative Tribunal NSW – procedural fairness – appeal on a question of law – evidence not before the original decision maker – sufficiency of medical evidence PRACTICE AND PROCEDURE – extension of time to appeal – delay of proceedings on medical grounds |
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Waters v Chai [2016] NSWCATAP 248
Consumer & Commercial Division - Consumer claim
Judgment of: R Seiden SC, Principal Member; DAC Robertson, Senior Member Catchwords: APPEAL – procedural fairness – appellant failed to appear at hearing – appellant had sought adjournment – appellant had been informed Tribunal would “conciliate between the parties and make procedural directions” – unfair in those circumstances for Tribunal to determine proceedings adversely to the appellant in her absence |
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Courtatos t/as Surf City Motors v Willis [2016] NSWCATAP 249
Consumer & Commercial Division - Motor vehicles
Judgment of: M Harrowell, Principal Member; G Walker, Senior MemberCatchwords: Procedural fairness- failure to allow adjournment, inadequate reasons. Australian Consumer Law (NSW)- major defect, obligation to return goods unless significant cost. Evidence of defects- absence of opposing evidence, form of evidence |
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Troy Hood trading as UR Place Landscape v Rutten [2016] NSWCATAP 250
Consumer & Commercial Division - Home building
Judgment of: R Seiden SC, Principal Member; A Boxall, Senior MemberCatchwords: APPEAL – Civil and Administrative Tribunal NSW – procedural fairness – appeal on a question of law – reasonable opportunity to be heard – adducing medical evidence to support ground of appeal |
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Baker v NSW Land and Housing Corporation [2016] NSWCATAP 251
Consumer & Commercial Division - Social housing
Judgment of: L P Robberds QC; Dr J Lucy, Senior Members Catchwords: Social housing tenancy agreement – breaches of agreement – whether sufficient to justify termination of agreement – consideration of s87 Residential Tenancies Act – amendment of that Act – whether Tribunal took into account relevant provisions in s152 of that Act - whether adequate reasons given by Tribunal for termination –whether Tribunal failed to take into account respondent’s hoarding policy – whether appellant may have suffered a substantial miscarriage of justice |
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McDonald v McDonald [2016] NSWCATAP 252
Consumer & Commercial Division - Tenancy
Judgment of: A P Coleman SC; S Thode, Senior MembersCatchwords: CIVIL AND ADMINSITRATIVE TRIBUNAL: consent orders, whether jurisdiction to make those orders; RESIDENTIAL TENANCIES: consent orders terminating tenancy, application to set aside consent orders, whether residential tenancy agreement entered into; APPEAL: nature of appeal, new evidence, no evidence taken below as orders made by consent |
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Markunsky v Zammit t/as Zammit Quality Constructions [2016] NSWCATAP 253
Consumer & Commercial Division - Home building
Judgment of: A Britton; K Rosser, Principal MemberCatchwords: COSTS –– exercise of the discretion to award costs under cl 20 of the Consumer, Trader and Tenancy Tribunal Regulation 2009 (NSW) — application of the “compensatory principle” in proceedings where there are multiple issues and each party enjoys a measure of success COSTS ––whether ”special circumstances” under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) established |
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AHB v NSW Trustee and Guardian [2016] NSWCATAP 258
Administrative & Equal Opportunity Division - Administrative review
Judgment of: A Britton, Principal MemberCatchwords: PRACTICE AND PROCEDURE — stay of the decision under appeal — factors relevant to exercise of the power to stay decision under appeal — extension of stay granted with conditions |
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McDonald v Pochin [2016] NSWCATAP 259
Consumer & Commercial Division - Tenancy
Judgment of: R Seiden SC, Principal Member; T Simon, Senior MemberCatchwords: RESIDENTIAL TENANCY – termination – termination by consent - abandonment – break lease fee- fresh evidence – leave to appeal |
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Rainsford v NSW Land and Housing Corporation [2016] NSWCATAP 260
Consumer & Commercial Division - Tenancy
Judgment of: Hennessy LCM, Deputy President; J Kearney, Senior MemberCatchwords: RESIDENTIAL TENANCIES – procedural fairness – reasonable opportunity to present case – where opportunity, even if given, could have made no difference to the outcome STATUTORY CONSTRUCTION –meaning of the phrase “reasonable peace, comfort or privacy of the tenant in using the residential premises” and meaning of the phrase "cause or permit” in s 50(2) of the Residential Tenancies Act 2010 (NSW) – requirement for quiet enjoyment must relate to the use of the residential premises – to have permitted a breach of s 50(2) the landlord must have had the power to prevent the breach of quiet enjoyment |
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