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| NCAT Appeal Decisions Digest September 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 September 2015. Each case title is hyperlinked to the full decision available on NSW Caselaw. |
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Staver v Bridge Housing Ltd [2015] NSWCATAP 181
Consumer & Commercial Division - Social Housing
Judgment of: WRIGHT J, President; D GOLDSTEIN, Senior Member Catchwords: APPEAL – practice and procedure – Civil and Administrative Tribunal (NSW) – application for extension of time in which to appeal – whether appellant has demonstrated strict compliance with the rules will result in injustice – question of appellant’s prospects of success – where alleged refusal to consider appellant’s evidence in proceedings below – where Tribunal below alleged to have proceeded on misapprehension of facts – where evidence would have resulted in the same outcome – held no real prospects of success – application dismissed; LANDLORD AND TENANT – rent – tenant’s justification of non-payment of rent on landlord’s alleged unperformed obligation to conduct repairs – claim for reimbursement by tenant for laundry expenses where landlord allegedly did not meet obligation to provide laundry facilities – where tenancy terminated for failure to pay rent – effect of not applying for rent reduction or excessive rent orders to Tribunal under the Residential Tenancies Act 2010 (NSW), ss 43 and 44 – no real prospects of establishing claims concerning repairs or facilities |
| Gartrell v Roth [2015] NSWCATAP 182
Consumer & Commercial Division - Commercial
Judgment of: M SCHYVENS, Deputy President; R TITTERTON, Senior Member Catchwords: CIVIL AND ADMINISTRATIVE TRIBUNAL - appeal - joinder of parties - where appeal brought by only one of respondents below CIVIL AND ADMINISTRATIVE TRIBUNAL - appeal - extension of time in which to file notice of appeal CIVIL AND ADMINISTRATIVE TRIBUNAL - jurisdiction - question of law CIVIL AND ADMINISTRATIVE TRIBUNAL - Agricultural Tenancies Act - jurisdictional limit of Tribunal - provision that the Tribunal must not make an order for payment of an amount that exceeds $500,000 no bar or limitation on jurisdiction |
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Boyle v WorkCover Authority of New South Wales [2015] NSWCATAP 183
Administrative & Equal Opportunity Division - Administrative Review
Judgment of: Emeritus Professor M CHESTERMAN, Principal Member; R TITTERTON, Senior Member Catchwords: Explosives Act 2003 – cancellation of licences to manufacture and to import/export explosives – cancellation of security clearance – whether licence holder fit and proper person – meaning of ‘storing’ – whether licence holder responsible for ‘handling’ of explosives that it had sold – procedural fairness – standard of proof |
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Gaynor v Burns [2015] NSWCATAP 184
Administrative & Equal Opportunity Division - Equal Opportunity
Judgment of: BOLAND JADCJ, Deputy President; Emeritus Professor M CHESTERMAN, Principal Member; L ROBBERDS QC, Senior MemberCatchwords: APPEAL allowed by consent. Request for reasons. Whether appropriate to give reasons where orders made by consent |
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NSW Land and Housing Corporation v Lesniewski [2015] NSWCATAP 185
Consumer & Commercial Division - Social Housing
Judgment of: S HIGGINS, Principal Member; G MEADOWS, Senior Member Catchwords: Appeal – Civil and Administrative Tribunal (NSW) – residential tenancy – proper construction of subs 90(1)(b) of the Residential Tenancies Act 2010 – whether the location qualifier applies to an occupier – meaning of occupier – meaning of premises and property adjoining and adjacent |
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Matthew Bryan v Lilly Gorgievski and Les Gorgievski [2015] NSWCATAP 186
Consumer & Commercial Division - Tenancy
Judgment of: J REDFERN, Principal Member; S THODE, Senior Member Catchwords: APPEAL - Civil and Administrative Tribunal (NSW) – appeal against decision to refuse set aside application – principles to be applied – error of law – whether to set aside decision and remit proceedings – no injustice – appeal dismissed |
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TICA Default Tenancy Control Pty Ltd (Appellant); Hilal Selvi (First Respondent); Gwenda Champness (Second Respondent) [2015] NSWCATAP 187
Consumer & Commercial Division - Tenancy
Judgment of: S WESTGARTH, Deputy President; J LUCY, Senior Member Catchwords: RESIDENTIAL TENANCIES – Residential tenancy database – Whether a database containing lists of proceedings in the Tribunal’s residential tenancy jurisdiction and in other courts and tribunals is a “residential tenancy database” – Relevance of offence provisions to construction of definition – Relevance of circumstance that information in database derived from public sources - Purpose of database – Whether purpose is for checking a person’s tenancy history – Use of definite article before the word “purpose” – Whether database with one of several purposes described in definition is captured PROCEDURAL FAIRNESS – Evidence of appellant that it was unaware of hearing –Whether appellant given adequate opportunity to be heard WORDS AND PHRASES – Residential tenancy database - Tenancy history |
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Hill v Crampton Automotive (Quayside) Pty Ltd [2015] NSWCATAP 188
Consumer & Commercial Division - Motor Vehicle
Judgment of: insert member names Catchwords: insert keywords |
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S&G Homes Pty Ltd t/as Pavilion Homes v Owen [2015] NSWCATAP 190
Consumer & Commercial Division - Home Building
Judgment of: N HENNESSY LCM, Deputy President; R PERRIGNON, Senior Member Catchwords: PRACTICE AND PROCEDURE – consent orders made by Tribunal in terms of agreed settlement – meaning of s 59(1)(b) of Civil and Administrative Tribunal Act 2013 (NSW) – exercise of discretion to make consent orders –Tribunal must take into account whether it had power to make the consent orders and must make those orders reasonably |
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Claydon v NSW Land and Housing Corporation [2015] NSWCATAP 192
Consumer & Commercial Division - Social Housing
Judgment of: A BRITTON, Principal Member; S THODE, Senior Member Catchwords: ADMINISTRATIVE LAW — appeal from Consumer and Commercial Division of NCAT — whether leave to appeal should be granted –– meaning of significant new evidence |
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Quinn v Montgomery Homes Pty Ltd [2015] NSWCATAP 193
Consumer & Commercial Division - Home Building
Judgment of: S HIGGINS, Principal Member; K ROSSER, Senior Member Catchwords: ADMINISTRATIVE LAW – internal appeal - appeal on a question of law – adequacy of reasons – Tribunal failed to expressly state its findings on specific aspects of the appellant’s claim – whether appellant may have suffered a substantial miscarriage of justice |
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Bunbury v Fletcher [2015] NSWCATAP 194
Consumer & Commercial Division - Tenancy
Judgment of: J REDFERN, Principal Member; K ROSSER, Senior Member Catchwords: APPEAL – residential tenancy agreement – no substantial miscarriage of justice – leave to appeal refused |
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Williamson v Sovik [2015] NSWCATAP 195
Consumer & Commercial Division - Home Building
Judgment of: J REDFERN, Principal Member; R TITTERTON, Senior Member Catchwords: APPEAL - Civil and Administrative Tribunal (NSW) –– building dispute –– hearing in absence of party –– whether decision should be set aside –– whether error ‘material’ –– alleged pre-judgment –– effect of failure to engage in NSW Fair Trading dispute resolution process –– experts reports –– no injustice – appeal dismissed |
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Hall v Hawkins [2015] NSWCATAP 197
Consumer & Commercial Division - Tenancy
Judgment of: WRIGHT J, President; S THODE, Senior Member Catchwords: EVIDENCE – documentary evidence – presumptions as to documents – Residential Tenancies Act 2010 (NSW), ss 29 and 30 – whether rebuttable statutory presumption that outgoing condition report signed by landlord and tenant is correct deprives other evidence going to condition of cogency or reliability – held not; EVIDENCE – documentary evidence – use of quotations to prove quantum of loss – held no general rule against reliance on quotations |
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TA & JR O'Keefe Pty Ltd v Holroyd [2015] NSWCATAP 198
Consumer & Commercial Division - Home Building
Judgment of: P WASS SC; K ROSSER, Senior Members Catchwords: Costs on appeal; whether special circumstances |
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Ace Action Motors Pty Ltd v Hoblos [2015] NSWCATAP 199
Consumer & Commercial Division - Motor Vehicle
Judgment of: The Hon D COWDROY OAM QC, Principal Member; R C TITTERTON, Senior Member Catchwords: CIVIL AND ADMINISTRATIVE TRIBUNAL – application for leave to appeal – no question of principle WARRANTIES - Application of warranties contained in Australian Consumer Law to motor vehicles purchased in NSW – effect of warranties in Motor Dealers Act 1974 |
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Ashrafinia v Augerinos [2015] NSWCATAP 200
Consumer & Commercial Division - Tenancy
Judgment of: M HARROWELL, Principal Member; J McATEER, Senior Member Catchwords: Leave to appeal out of time. No notice of hearing. Leave to appeal – denial of procedural fairness – miscarriage of justice |
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Yarraford Pastoral Company Pty Ltd v Wise [2015] NSWCATAP 201
Consumer & Commercial Division - General
Judgment of: N HENNESSY LCM, Deputy President; T SIMON, Senior Member Catchwords: PROCEDURAL FAIRNESS – fair hearing rule - whether party given a reasonable opportunity to be heard when submissions emailed to Tribunal before the due date were not received by Tribunal Member and not taken into account |
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Barton v Calliden Insurance Limited [2015] NSWCATAP 202
Consumer & Commercial Division - Home Building
Judgment of: P R CALLAGHAN SC, Principal Member; T SIMON, Senior Member Catchwords: Appeal – no precise identification of questions of law – construction of building contract and insurance contract under Home Building Act – objective principle of contract construction – transportable dwelling to be built in Victoria and installed in New South Wales – building contract terminated before completion in Victoria – insurance contract in name of individual and not building company – no building contract with individual – insurance did not come into operation – claim under insurance failed – inconclusive preliminary hearing on separate issues before appealed decision – appeal dismissed – no special circumstances warranting award of costs |
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McPherson v Mace [2015] NSWCATAP 203
Consumer & Commercial Division - Home Building
Judgment of: M HARROWELL, Principal Member; R TITTERTON, Senior Member Catchwords: CIVIL AND ADMINISTRATIVE TRIBUNAL – Claim for defective building work-adequacy of reasons for decision – error of law CIVIL AND ADMINISTRATIVE TRIBUNAL – failure to constructively exercise jurisdiction – error of law |
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Owners Corp SP 14846 v Wesfarmers General Insurance Ltd t/as Lumley General [2015] NSWCATAP 204
Consumer & Commercial Division - Home Building
Judgment of: P DURACK SC; T SIMON, Senior Members Catchwords: Appeal – home warranty insurance – original defective work uninsured – rectification work by builder at no cost to owner also defective - whether insurance subsequently obtained covered or excluded loss – construction of insurance policy – jurisdiction of Tribunal to deal with alleged insurance settlement |
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City Convenience Leasing Pty Ltd v Dencal Pty Ltd [2015] NSWCATAP 205
Consumer & Commercial Division - Commercial
Judgment of: M HARROWELL, Principal Member; P WASS SC, Senior Member Catchwords: s69 Retail Leases Act - admissibility in Tribunal proceedings of agreements reached in the course of mediation - privilege and protection of communications with agent representing a party in proceedings involving a retail lease dispute - construction of a settlement agreement |
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Sunol v Burns [2015] NSWCATAP 207
Administrative & Equal Opportunity Division - Equal Opportunity
Judgment of: The Hon D COWDROY OAM QC, Principal Member; Dr J RENWICK SC, Senior Member Catchwords: CIVIL AND ADMINISTRATIVE TRIBUNAL – Anti-Discrimination – Homosexual vilification – Public Act – Incitement – Remedies – Restraining Order – Appeal Dismissed |
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Lovich v Commissioner for Fair Trading [2015] NSWCATAP 208
Occupational Division - Administrative Review
Judgment of: A BRITTON, Principal Member; M ANDERSON, Senior Member Catchwords: ADMINISTRATIVE LAW – review of decision to grant contractor licence – meaning of phrase “a wide range of building construction work” |
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Saoud v Affordable Community Housing Ltd t/as Evolve Housing [2015] NSWCATAP 209
Consumer & Commercial Division - Tenancy
Judgment of: N HENNESSY LCM, Deputy President Catchwords: PRACTICE AND PROCEDURE – consent orders – whether appeal should be accepted out of time – merits of appeal – no particularisation of claim that landlord’s agent was subjected to duress when she signed terms of agreed settlement and consented to the Tribunal making orders |
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Isabella DIT Pty Ltd v The Owners - Strata Plan No 80988 [2015] NSWCATAP 210
Consumer & Commercial Division - Strata
Judgment of: S WESTGARTH, Deputy President; D ROBINSON, Principal Member Catchwords: Reallocation of unit entitlements Ascertaining the respective values of the lots Whether allocation of unit entitlements was unreasonable Section 183 Strata Schemes Management Act (1996) NSW |
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ARU v Victims Compensation Fund Corporation [2015] NSWCATAP 211
Administrative & Equal Opportunity Division - Victims Compensation
Judgment of: A BRITTON, Principal Member; M RIORDAN, Senior Member Catchwords: ADMINISTRATIVE LAW — appeals from decisions of NCAT — adequacy of reasons — denial of procedural fairness — delay in making decision; PRACTICE AND PROCEDURE — requirement to hold a hearing — under Victims Support and Rehabilitation Act 1966 (NSW) and Civil and Administrative Tribunal Act 2013 (NSW); STATUTORY INTERPREATION — meaning of “receives as … a direct result” |
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Emmery v Smith [2015] NSWCATAP 212
Consumer & Commercial Division - Home Building
Judgment of: P R CALLAGHAN SC, Principal Member; R TITTERTON, Senior Member Catchwords: Home building – deficiencies in licence and insurance – appeal – no question of law – application for leave to appeal – no miscarriage of justice – no error in relation to costs order – no award of costs in respect of appeal |
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Giro Constructions Pty Ltd v Smith [2015] NSWCATAP 213
Consumer & Commercial Division - Home Building
Judgment of: J REDFERN, Principal Member; C PAULL, Senior Member Catchwords: APPEAL – Civil and Administrative Tribunal (NSW) – building dispute – whether evidence capable of supporting findings – adequacy of reasons – procedural fairness COSTS – whether special circumstances– none found |
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Smith v Giro Constructions Pty Ltd [2015] NSWCATAP 214
Consumer & Commercial Division - Home Building
Judgment of: J REDFERN, Principal Member; C PAULL, Senior Member Catchwords: APPEAL – Civil and Administrative Tribunal (NSW) – costs – successful party awarded 10% of costs – whether the Tribunal miscarried in the exercise of discretion – general rule that costs are compensatory and follow the event |
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