| | | | | | | | NCAT Appeal Decisions Digest October 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 October 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 October 2016.
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| Brodyn Pty Ltd v Owners Corporation – Strata Plan 73019 (No 2) [2016] NSWCATAP 224
Consumer & Commercial Division - Home building
Judgment of: M Harrowell, Principal Member; R Titterton, Senior Member
The Appeal Panel considered whether to award costs of an appeal. Despite finding that the complexity of the appeal (involving questions of the proper interpretation of a deed and s 48A of the HB Act, and issues of betterment) amounted to “special circumstances” within the meaning of s 60(3) of the NCAT Act (at [29]), the Appeal Panel declined to award costs in circumstances where each party had been partially successful (at [32]-[36]). The Appeal Panel also observed that the respondent’s success on remittal has no bearing on the exercise of the discretion as to costs for the appeal, particularly when the respondent failed to provide the Appeal Panel all the evidence provided to the Tribunal at first instance so as to enable a final resolution of the matter by the Appeal Panel without remittal (at [37]). |
| Sacks v Hammoud [2016] NSWCATAP 225
Consumer & Commercial Division - General
Judgment of: A Britton, Principal Member; S Thode, Senior Member
In May 2011, the appellant and homeowner, Sacks, entered into a contract for the supply and installation of doors and windows, which were installed by the first respondent, Hammoud. In February 2013, Sacks’s home suffered water damage during a downpour. In June 2015 Sacks lodged a consumer claim in the Tribunal. At first instance, the application was dismissed on the ground that the Tribunal lacked jurisdiction because the limitation period (3 years) imposed by s 7(4)(a) of the Consumer Claims Act had expired. The Tribunal at first instance decided the cause of action first accrued in June 2011, at the time of installation. The Appeal Panel allowed the appeal, noting (at [74]) that “to determine whether s 7(4)(a) of the Consumer Claims Act deprived it of jurisdiction, the Tribunal was required to consider in respect of each claimed cause of action whether, and if so when, all of the elements necessary to establish the subject cause of action was first present.”
In doing so, the Appeal Panel considered when various causes of action first accrue. In the circumstances of the case, a cause of action in negligence was said to first accrue “when the alleged damage was first discovered or with reasonable diligence could have been discovered “([38]-[47]). An action under s 267 of the ACL for failure to comply with statutory guarantee ([56]-[59]) accrues when the “damage became known or could have become known with reasonable diligence”. An action for misleading and deceptive conduct under s 236 of the ACL accrues when the alleged damage was first sustained ([69]-[70]). More generally, the Appeal Panel considered the authorities and said (at [34]-[35]):
Applying these principles, for the purpose of s 7(4)(a) of the Consumer Claims Act, a cause of action “first accrues” when facts which constitute the elements of the relevant cause of action crystallise or combine so that all the elements necessary to entitle a person to make a consumer claim are present.
When the cause of action arises is a question of fact and requires the identification of the applicable measure of damages: Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514 (Wardley) at 526. |
| Upton v Martin & Stein Antiques Pty Ltd [2016] NSWCATAP 228
Consumer & Commercial Division - General
Judgment of: P Durack SC; R Deutsch, Senior Members
In February 2006, Upton, the appellant, purchased bracelet cuffs described as being set with black opals from the respondent, a jeweller in Sydney. In 2015, she took the cuffs to Antiques Roadshow, where a jewellery expert expressed the opinion that the cuffs were set with low-value doublets and not black opals. This was subsequently confirmed by an examination by an expert gemmologist. At first instance, the Tribunal held that all causes of action were out of time. The Appeal Panel held that some of the causes of action where within time and, in doing so, provided guidance as to when certain causes of action first accrue. In relation to breach of contract, the Appeal Panel said (at [41]):
The causes of action in contract [for breach of express guarantee and for breach of terms implied by the Sale of Goods Act and the Fair Trading Act] first accrued at the date breach: Woolcock Street Investments Pty Ltd v CDG Pty Ltd and Another (2004) 216 CLR 515 at [103]; Allianz Australia Insurance Ltd v Haddad [2015] NSWCA 186 at [21]. In this case, the date of breach was 27 February 2006 when the cuffs were delivered to Ms Upton at the time of purchase.
In relation to misleading and deceptive conduct and false representation as to quality (under s 68 of the Fair Trading Act as it stood at the time of purchase of the cuffs in 2006), the Appeal Panel concluded (at [54]):
Accordingly, in our opinion, in circumstances where the defect or inferior composition or quality of goods purchased is latent, in the sense that it is not manifest or discoverable by reasonable diligence, the causes of action for misleading and deceptive conduct and false representation inducing the purchase of goods under s 68 of the FPA, to which we have referred, do not accrue until loss by diminution of value or other consequential loss (for example, incurring expense) eventuates because the defect or inferior aspect has become manifest, or could with reasonable diligence be discovered.
The Appeal Panel reached the same conclusion with respect to the causes of action in tort for negligent misrepresentation ([58]) and for the tort of deceit ([60]). |
| Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234
Administrative & Equal Opportunity Division - Administrative review
Judgment of: Hennessy LCM, Deputy President; L Robberds QC, Senior Member
The Appeal Panel considered the relevant considerations in determining whether it is “not in the public interest” or “contrary to the public interest” for a person to obtain or retain a firearms licence or permit and said (at [25]):
In that statutory context it is uncontentious that a relevant consideration is the applicant’s previous conduct. More weight may be given to conduct which directly relates to the regulated activity, but anything that the applicant has done which could affect the public interest is relevant. The Tribunal was reviewing seven separate decisions. It was right to observe that Hijazi does not suggest that contraventions should be treated as having equal weight in respect of all licences. But in Hijazi, the Appeal Panel went on to hold that it was erroneous to quarantine contraventions that relate to one type of licence when considering whether another type of licence should be revoked. Another way of expressing that principle is that it is erroneous to treat contraventions relating to another type of licence or permit as irrelevant considerations. |
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| | | Keyword summaries for all NCAT Appeal Panel decisions made during October 2016.
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| George’s Spice Pty Ltd v Southern Highland Rentals Pty Ltd [2016] NSWCATAP 220
Consumer & Commercial Division - Commercial
Judgment of: L P Robberds QC; J Harris SC, Senior Members Catchwords: Landlord and tenant of restaurant – landlord in breach of lease – breach rectified by landlord – tenant closes restaurant and stops paying rent – tenant not entitled to do so – tenant claims compensation for breaches |
| | Abdel-Messih v Mao [2016] NSWCATAP 223
Consumer & Commercial Division - Tenancy
Judgment of: M Harrowell, Principal Member; D Robertson, Senior Member Catchwords: Quiet enjoyment- circumstances where landlord liable for third party actions. Orders restraining breach or requiring performance of residential tenancy agreement- discretion, no utility of orders. Strata scheme- liability of landlord for actions of building manager appointed by owners corporation |
| | Sacks v Hammoud [2016] NSWCATAP 225
Consumer & Commercial Division - General
Judgment of: A Britton, Principal Member; S Thode, Senior Member Catchwords: APPEAL — Civil and Administrative Tribunal (NSW) — Consumer and Commercial Division — question of law — identifying when cause of action first accrues in claims brought under Consumer Claims Act 1998 (NSW)
WORDS AND PHRASES — meaning of “cause of action” |
| Rush v NSW Land and Housing Corporation [2016] NSWCATAP 226
Consumer & Commercial Division - Social housing
Judgment of: Dr J Renwick SC; R Titterton, Senior Members Catchwords: CIVIL AND ADMINISTRATIVE TRIBUNAL – Appeal Panel – termination of tenancy agreement not reflected in consent orders made by the Tribunal – Tribunal asked itself wrong question – Brown v West principle inapplicable – decision set aside |
| Bayfield v Everall [2016] NSWCATAP 227
Consumer & Commercial Division - Tenancy
Judgment of: O Shub, Principal Member; J Wakefield, Senior MemberCatchwords: Civil & Administrative Tribunal (NSW) – Consumer and Commercial Division – Internal Appeal – question of law – rehearing - residential tenancy agreement – abandonment – “break-fee” - void term - calculation of loss |
| Upton v Martin & Stein Antiques Pty Ltd [2016] NSWCATAP 228
Consumer & Commercial Division - General
Judgment of: P Durack SC; R Deutsch, Senior Members Catchwords: APPEAL – sale of goods –misleading and deceptive conduct - inferior quality latent - time bar for jurisdiction of the Tribunal under s 79L of the Fair Trading Act 1987 (NSW) – whether all causes of action first accrued at time of purchase – when discoverable with reasonable diligence – whether loss suffered -- separate assessment of loss – no appeal from original decision - amendment of notice of appeal in the interests of justice, convenience and expense and for real issues to be determined |
| 3D Design & Build Pty Ltd v Lynch [2016] NSWCATAP 229
Consumer & Commercial Division - Home building
Judgment of: L Robberds QC; D A C Robertson, Senior MembersCatchwords: APPEAL – Leave to Appeal – whether evidence not reasonably available at time of hearing CONTRACTS – Home Building Act – delay in compliance with work orders – renewal of application – whether work performed with due skill and care – appropriate orders on renewed application |
| Royal Diamonds Pty Ltd v Buttle [2016] NSWCATAP 230
Consumer & Commercial Division - General
Judgment of: Cowdroy ADCJ, Principal Member; A Boxall, Senior Member Catchwords: CONSUMER PROTECTION – diamond ring advertised on the internet – respondent placed order and paid for ring – order confirmed by appellant – appellant refusing to provide ring - appellant claiming that a diamond ring was advertised at the incorrect price – unilateral mistake – claim for unconscionability by respondent in seeking to enforce contract – no evidence that respondent was aware of erroneous pricing as alleged – no evidence of unconscionable conduct by respondent - appeal dismissed |
| | Mrjana v Imagine Education Australia Pty Ltd [2016] NSWCATAP 232
Consumer & Commercial Division - General
Judgment of: M Harrowell; C Fougere, Principal Members Catchwords: Consumer claim - jurisdiction to determine, acceptance by email, place where contract made. Email received in Queensland. Costs - special circumstances, claim for costs by legally represented respondent against unsuccessful appellant |
| Hurst v Prestige Auto Traders [2016] NSWCATAP 233
Consumer & Commercial Division - Motor vehicle
Judgment of: K P O’Connor, AM, ADCJ, Deputy President, Appeals; K Rosser, Principal Member Catchwords: CONSUMER LAW – Sale of used motor vehicle by auction – Information provided by auctioneer prior to auction – Whether misrepresentation – Tribunal held not – Appeal – No error of law – Procedural fairness – Non-consideration of appellant’s written submissions filed as permitted after hearing – held non-consideration would not have affected outcome of case – appeal dismissed |
| Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234
Administrative & Equal Opportunity Division - Administrative review
Judgment of: Hennessy LCM, Deputy President; L Robberds QC, Senior Member Catchwords: ADMINISTRATIVE LAW – firearms licences and permits –– public interest - relevant/irrelevant considerations -scope of “no evidence” ground of appeal– adequacy of reasons - manifest unreasonableness |
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