| | | | | | | NCAT Appeal Panel Decisions April/May 2018 Decisions
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| | The NCAT Appeal Panel Decisions Digest provides monthly keyword summaries of decisions of the NSW Civil and Administrative Tribunal (NCAT) Internal Appeal Panel.
The following decisions were handed down during April and May 2018. Each case title is hyperlinked to the full decision available on NSW Caselaw. |
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| Green Apple Global Pty Ltd v La Brasserie Investments Pty Ltd [2018] NSWCATAP 90Consumer & Commercial Division - Commercial
Decision of: M Harrowell, Principal Member; R Perrignon Senior Member
This appeal involves a dispute surrounding the lease of a licensed bar/restaurant at Darlinghurst. The respondent lessor applied to the Tribunal seeking possession, payment by the appellant lessee of all outstanding rent, and forfeiture of a bank guarantee held as security for the lease.
The Tribunal made orders in favour of the respondent in the sum of $140,142.36 – comprising unpaid rent and the cost of making good the premises, less the bank guarantee.
On appeal, the appellant claimed it had suffered loss as a result of the respondent leasing a “licensed bar/restaurant” but failing to transfer the liquor license, amounting to unconscionable or misleading and deceptive conduct under either the Australian Consumer Law (NSW) or Retail Leases Act 1994 (NSW).
The issues for determination included whether the Tribunal erred in:
1) Awarding the respondent unpaid rent and damages; and
2) Rejecting the appellant’s claim of unconscionable or misleading and deceptive conduct because the appellant had failed to file its own application.
Held (allowing the appeal and remitting certain matters to the Tribunal): (i) the Tribunal was correct to award unpaid rent to the respondent, in the absence of an application by the appellant seeking relief from doing so ([42]).
Even so, the Tribunal erred in awarding damages without first making appropriate findings as to the state of the premises when the lease commenced and the nature and extent of the alleged breach ([65]-[66] and [68]):
“This is because the assessment of the reasonable cost of works necessary to return the premises to the state they were in at the commencement of the lease, fair wear and tear excepted, required an evaluation of the before and after position of the premises and the plant and equipment. Nothing in the [submissions] provides evidence on this aspect of the claim. … On this basis, the award for this sum should be set aside.”
Accordingly, this aspect of the claim was remitted for re-determination ([67]).
(ii) On the issue of unconscionable or misleading and deceptive conduct, the appellant could raise a defence by way of equitable set-off ([71]), whereby claims for money due in relation to a contract may be set-off against claims for damages for breach of that same contract ([73]-[74]).
See Meagher, Gummow & Lehane’s Equity – Doctrines & Remedies, 5th ed at [39]-[45]ff.
In practical terms, this involves setting-off the respondent’s claim for damages, arising from the appellant’s alleged failure to repair the premises, against the appellant’s claim of having suffered loss because the respondent had misrepresented the premises as being licensed. The appellant said it should not have to pay any amount to the respondent in these circumstances ([78]).
Noting that the Tribunal is entitled to determine both legal and equitable defences in resolving proceedings before it ([84]), there was likewise no impediment in the lease to prevent a set-off in respect of the claim for damages ([82]).
Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Ltd [2015] NSWSC 289 at [75]-[78], applied.
Accordingly, the Appeal Panel varied the orders made below reducing the total sum to $73,445.76. Further, it remitted the proceedings to re-determine both the respondent’s claim for damages, and any defence by of equitable set-off by the appellant.
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| Transport for NSW v Searle [2018] NSWCATAP 93
Administrative & Equal Opportunity Division
Decision of: P Durack SC, Senior Member; Dr J Renwick SC, Senior Member
The appellant is involved in the construction of the Sydney Light Rail Project. The respondent, the Leader of the Opposition in the Legislative Council, successfully applied to the Tribunal, under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act), seeking access to information concerning the project.
Section 5 of the GIPA Act stipulates that “[t]here is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure”. Examples of such “overriding” situations are found in s 14(2), cll 1(d) and 1(f), and include disclosures that could reasonably be expected to:
“(d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions, … [or]
(f) prejudice the effective exercise by an agency of the agency’s functions”.
At first instance, the Tribunal concluded that the above considerations against disclosure were outweighed by the strength of the public interest considerations in favour of disclosure.
The Appeal Panel determined that the Tribunal erred by:
1) emphasising the lack of more extensive evidence about the threat to the future supply of information to the appellant, and
2) concluding that the two public interest considerations against disclosure (in s 14(2) above) had not been established.
Held (allowing the appeal): (i) in relation to the evidence of the appellant’s witnesses, regarding the threat to the future supply of information, the Appeal Panel was mindful of its “obligation to bring some scepticism to the task of assessing the necessarily self-serving statements of [such] agencies.” ([34])
Nonetheless, the evidence met the requisite standard of credibility (at [73]):
“…the basis of the views of the witnesses in this case was explained, such basis was rational and they were the views of senior persons with relevant, albeit distinct, experience to the views expressed …. We also note that no credit issues arise in respect of their evidence.”
(ii) Finding that the two statutory considerations against disclosure existed, the Appeal Panel reconsidered the merits of the considerations for and against disclosure and decided that “disclosure of the information carries with it a sufficient risk of too great a cost to the public than the public interest in disclosure would justify” ([7]-[8] and [114]).
This involved balancing the factors for and against disclosure ([93]-[114]), set out at [104]:
“In essence, we adopt the approach of the Tribunal below which was to set out the competing public interest considerations for and against disclosure, attributing weight to each consideration and to determine the balance in the light of such weighting: see also Williams v Department of Industry and Investment (NSW) [2012] NSWADT 192 at [22].”
The conclusion against disclosure was founded, in part, on the basis that ([69]):
“the objective and otherwise established facts about the nature of the documents … were sufficient to demonstrate the existence of the public interest consideration against disclosure in cl 1(d).”
From this finding, it followed that the public interest consideration in cl 1(f) had also been established ([91]):
“This is because it is plain that the supply of the information … is important to the effective exercise of [the appellant’s] infrastructure assurance function.”
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| Blessed Sydney Constructions Pty Ltd v Vasudevan [2018] NSWCATAP 98
Consumer & Commercial Division - Home Building
Decision of: Wright J, President; M Harrowell, Principal Member; L Pearson, Principal Member
The appellant builder contracted with the respondent to carry out building work on her home. Disputes arose between the parties, and both applied to the Tribunal.
When the two proceedings were heard together, the Tribunal made orders giving effect to an agreement reached by the parties: the builder was to carry out certain works, and the homeowner could renew the proceedings within 12 months in the event of non-compliance.
A year later, the homeowner instituted renewal proceedings alleging that the builder had not completed the works as agreed. Accordingly, the Tribunal ordered the builder to pay to the homeowner $83,243.05, in lieu of completing the works.
In determining building claims, the Tribunal can make both work and money orders, under s 48O of the Home Building Act 1989 (NSW). Under s 48MA, however, the Tribunal must have regard to the “principle that rectification of the defective work by the responsible party is the preferred outcome.”
The principal issue on appeal was whether the Tribunal could, on a renewal application under cl 8(4) of Sch 4 to the NCAT Act, order the payment of money where there had been non-compliance with a work order “as per the written contract”, in light of the principle in Brewarrina Shire Council v Beckhaus Civil Pty Ltd [2005] NSWCA 248.
Held (dismissing the appeal): (i) on the proper construction of cl 8(4) of Sch 4, an order for the payment of money can be made in those circumstances. The Tribunal can either refuse to make an order (cl 8(4)(b)), or make an order if the following criteria are satisfied (cl 8(4)(a)) ([52]):
“1. On a renewal application, the Tribunal can make an order that is materially different from the order made when the proceedings were originally determined.
2. Such an order must be suitable or fitting in light of the general law principles, whether legal or equitable, and statutory provisions applicable to the type of relief claimed on the renewal application as well as all other relevant circumstances…
3. Such an order must be one that the Tribunal has authority to make under the NCAT Act or the relevant enabling legislation.
4. Such an order must be one that the Tribunal had authority to make when the proceedings were originally determined, … but the order does not have to be an order that would have been appropriate in the circumstances when the proceedings were originally determined.”
In light of this construction, the Tribunal on the renewal application had authority to make an order for the payment of money by way of damages ([53]).
(ii) If not terminated before, the contract was terminated when the Tribunal made the order for the payment of money, applying the principles in cases such as Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245 at 260; [1988] HCA 11 ([64]-[69]).
As such, the principle in Brewarrina Shire Council v Beckhaus Civil Pty Ltd [2005] NSWCA 248, that an owner is not entitled to a substantial order for damages for incomplete work unless the building contract is lawfully terminated, did not apply. It was noted at ([68] and [69]):
“It is inherent in the making of this renewal application, in which a money order is sought in lieu of the work order, that the homeowner was no longer holding the builder to performance of the contract that was the subject of that work order. …
If the renewal application is understood in this way, the orders that can be made include a money order for damages because the contract will no longer be on foot when the original work order is vacated, the homeowner’s election to terminate the contract takes effect and the work order is replaced by a money order.”
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| Dimitropoulos v Capital Constructions Pty Ltd; Capital Constructions Pty Ltd v Dimitropoulos [2018] NSWCATAP 100
Consumer & Commercial Division - Home Building
Decision of: M Harrowell, Principal Member; R Titterton, Principal Member
The appellants contracted with the respondent builder to build their house. Not satisfied with the builder’s progress, the homeowners issued a breach notice, requiring rectification within 10 days. The builder denied the breaches, seeking payment for the work done, and the homeowners sought to terminate the contract.
The Tribunal found that none of the breaches were “substantial”, and did not therefore give rise to a right to terminate the contract, which was found to have been abandoned by both parties. The homeowners were ordered to pay the builder $73,698.96.
Both parties appealed, alleging, among other things, that the Tribunal had erred by concluding that the contract had been abandoned. A key issue was the meaning of a “substantial” breach.
Held (allowing the appeal and remitting certain issues): (i) under the contract, the right to terminate arises where there has been a failure to rectify a “substantial breach” within a specified time ([53]-[56]). As this expression is not defined by the contract, it is to be “construed in the context in which it is used and having regard to the terms of the whole of the contract.” ([59])
Dixon J considered the meaning of “substantial breach” in Stojanovski v Australian Dream Homes [2015] VSC 404 at [56] ([73]-[76]):
“The proper approach in determining whether the builder was in substantial breach of the contract requires that the court should first identify the term or terms breached, and the breach must then be evaluated by considering its nature and the consequences of the breach.”
These conclusions were affirmed by the Court of Appeal in Australian Dream Homes Pty Ltd v Stojanovski [2016] VSCA 133 at [44]ff ([78]).
Applying these principles, the Appeal Panel determined that to be “substantial” ([95]):
“…the breach must be one defined in [the contract] or otherwise a breach that demonstrates the builder is unwilling, unable or has failed to perform its obligations under the contract and that such unwillingness, inability or failure is substantial in the context of the performance of the whole of the contract and what the homeowners contracted to receive.”
It was held that while one or more breaches of a clause may constitute grounds to terminate the contract at common law, it is the nature and extent of such breaches that will determine whether a right to terminate accrues in consequence of the breach (at [99]-[102]):
“In our view, [the clause in question] is not a condition or an essential term, the breach of which entitles a party to terminate the contract. Therefore, a breach of the requirements in that clause would not, of itself, amount to a substantial breach of the contract to which cl 33 applies. … The Tribunal examined each of the alleged breaches raised in the breach notice and found that individually, and collectively, the breaches were not substantial.”
Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 63 applied.
(ii) The contract was validly terminated by the builder ([250]). Regarding the manner by which repudiation can be accepted, the Appeal Panel found that (at [186]):
“In our view, the conduct of the builder in returning possession of the site to the homeowners and subsequently commencing proceedings on the basis that the contract was terminated by the builder in consequence of the homeowners’ repudiation, can only be seen as an election to accept the repudiation and terminate the contract.”
The matter was remitted to the Tribunal to resolve the question of what amount, if any, the builder may be entitled to recover for work performed ([250]).
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| ZGM v ZGN [2018] NSWCATAP 101
Guardianship Division
Decision of: A Britton, Principal Member; L Pearson, Principal Member; M Wroth, Senior Member
The parties to the appeal are siblings who hold an enduring power of attorney in respect of their elderly father, ZGO. Following protracted disputes, the daughter applied to the Tribunal seeking removal of the son as attorney.
The Tribunal decided to commit the management of ZGO’s estate to the NSW Trustee and Guardian, under s 25M of the Guardianship Act 1987 (NSW).
The son appealed on the ground that the Tribunal erred by taking into account irrelevant considerations, and failing to take into account relevant considerations, primarily in relation to the son’s suitability to act as manager of ZGO’s estate.
Held (dismissing the appeal): (i) while s 4 establishes a list of “mandatory” principles which must be taken into account when exercising functions under the Act ([38]-[39]), s 25M does not require the Tribunal to first be satisfied that there is no “suitable person” to undertake the role of financial manager, before appointing the NSW Trustee ([44]).
Nonetheless, the Tribunal cannot ignore the nomination
“In our view, the terms of s 25M of the Guardianship Act, read together with the obligation to give paramount consideration to the welfare and interests of the subject person [under s 4], implicitly require the Tribunal to identify the available options for the management of the subject person’s estate.”
It was implicit in its reasons that the appellant’s suitability was considered by the Tribunal, including that it could not be positively satisfied that he had not abused his position as attorney ([53]-[54]).
(ii) To succeed on the irrelevant consideration ground, the appellant must establish that the “family dispute” was a consideration the Tribunal was not permitted to take into account ([58]). The Appeal Panel concluded that ([59]-[60]):
“Determining whether a particular consideration is an irrelevant consideration, or a “forbidden consideration”, to use the term adopted by Aronson, Groves and Weeks in Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 6th ed, 2017) at [5.30], requires consideration to be given to the nature of the power to be exercised and construction of the statute conferring the discretion: Peko-Wallsend at [40].
There is nothing in the Guardianship Act to indicate that the Tribunal was forbidden from having regard to the dispute between the family members concerning the management of ZGO’s estate in the exercise of the discretion under s 25M.”
The Guardian ad Litem, noting evidence of family conflict, opined that ZGO’s best interest would be served if his estate is “independently managed by a third party with no agenda other than to provide for ZGO’s best interest.” ([67])
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| Sydney RV Group Pty Limited v Johnson [2018] NSWCATAP 102
Consumer & Commercial Division - Motor Vehicle
Decision of: M Craig QC ADCJ, Principal Member; J McAteer, Senior Member
The respondent purchased a second-hand campervan from the appellant. After discovering various problems, the respondent applied to the Tribunal, seeking a refund of the purchase price or, alternatively, payment of $13,000 for repairs.
The Tribunal ordered that the appellant refund the purchase price, on return of the vehicle, and pay $1,088.40 as reimbursement for repairs already undertaken.
As no question of law was identified, leave to appeal was sought under s 80(2) of the NCAT Act. That provision is subject to cl 12 of Sch 4 of the NCAT Act, which requires, among other things, the Appeal Panel to first be satisfied that the appellant may have “suffered a substantial miscarriage of justice” because the decision under appeal was “against the weight of evidence” (cl 12(1)(b)).
Held (allowing the appeal and remitting the matter to the CCD): (i) the Member did not weigh the significance of the defects relative to the campervan’s advanced age and high odometer reading at the time of purchase ([34]).
On the central issue of defective brakes, the Member was required to address the accuracy of the respondent’s evidence, in light of the appellant’s evidence, which contradicted the probability of the defect existing at the time of purchase ([38]). The Appeal Panel found that this evidence “significantly challenge[d] the substance of Mr Johnson’s claim” ([38]-[52]). It concluded that the evidence ([54]-[55]):
“…considered in its totality, does preponderate so strongly against the conclusion found that it is not one that could reasonably be reached. In circumstances where the finding of a major failure to comply with the statutory guarantees has been made against the weight of the evidence led before the Tribunal, we conclude that had that not been so, there was a “significant chance which was fairly open” that the Appellant would have achieved a different or more favourable result at the conclusion of the hearing than an order requiring the payment of a full refund of the purchase price to Mr Johnson as well as the compensatory order that was made. The failure to address the evidence that we have identified, weighing heavily against the ultimate finding and orders made, seems to us to result in an injustice that is readily apparent, given that the findings as to a defect in the brakes of the campervan and some of the other defects were central to the Tribunal’s decision.
For these reasons, we propose to grant the Appellant leave to appeal under s 80(2)(b) of the Tribunal Act and to uphold the appeal.”
Collins v Urban [2014] NSWCATAP 17 at [76]-[77] and [84], applied.
(ii) As determining the respondent’s claim required a reassessment of the evidence, the matter was remitted for rehearing, under s 81(1) of the NCAT Act ([56]-[57]).
In doing so, the Appeal Panel noted that, as the appellant was prepared to accept responsibility to replace or repair any faults arising during the warranty period, it “hoped that the parties might reach a sensible resolution of the claim so as to avoid the expense and delay of a further hearing before the Tribunal.” ([58])
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| Hacienda Caravan Park Pty Ltd v Dodge [2018] NSWCATAP 108
Consumer & Commercial Division - Residential Communities
Decision of: G Curtin SC, Senior Member; T Simon, Senior Member
The appellant is the owner and operator of a caravan park. The respondent purchased a dwelling in the caravan park from that dwelling’s then owners, planning to reside there permanently. A dispute arose as to whether the respondent had an agreement with the appellant to occupy the site, and, if so, what its terms were.
The appellant argued that, if there was an agreement, it was an “occupation agreement” under the Holiday Parks (Long-term Casual Occupation) Act 2002 (NSW). The respondent claimed it was a “site agreement” under the Residential (Land Lease) Communities Act 2013 (NSW). The key difference being that the latter permits permanent occupation and limits the appellant’s powers of termination.
The Tribunal found that there was a “site agreement”, and ordered the parties to enter into a written agreement, incorporating the terms required by the legislation.
On appeal, the appellant alleged that the Tribunal erred in law in finding: (i) that there was an agreement, and, alternatively, (ii) that the agreement was a “site agreement”.
Held (dismissing the appeal): (i) there was an agreement between the parties, but it was not an “occupation agreement”. This finding was based on the appellant’s tacit acceptance of the respondent’s occupation of the site for longer than is permitted under an occupation agreement, and the respondent’s lack of an alternative principle place of residence and rejection of the appellant’s offer to enter into a written occupation agreement ([91]-[95]).
(ii) The agreement found between the parties granted the respondent a right to occupy the site and use it as a permanent dwelling ([114]). Under the relevant legislation, it did not matter that the agreement was not in writing ([114] and [120]).
(iii) A further matter concerned a note at the top of a form, signed by the respondent at the request of the appellant, which appeared to exclude the respondent’s dwelling from eligibility for a “site agreement” ([106]-[108]).
It was determined that the note “was simply that, a note. At most it was a marginal note as referred to in s 35 of the Interpretation Act 1987 (NSW) and which may be taken into consideration in construing the provision, being the regulation, but it was not regulation itself.” ([121])
On the question of conflict between provisions, the Appeal Panel followed the High Court’s statement in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [70] to find that ([124]):
“If there be conflict between the provisions we have identified and the note (and on the assumption the note is a provision), in our opinion those statutory and regulatory provisions are the leading provisions and the note the subordinate provision. Accordingly, the note must give way.”
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| Zeait v Singh [2018] NSWCATAP 109
Consumer & Commercial Division - Home Building
Decision of: R Titterton, Principal Member; Dr J Lucy, Senior Member
This was an appeal from a costs decision in two homebuilding matters, dealt with together, under which the Tribunal dismissed the builder’s application and ordered that the homeowners were not required to pay certain monies to the builder.
The builder’s grounds of appeal included that the Tribunal misapplied r 38(2) of the NCAT Rules as the amount in dispute was less than $30,000. The homeowners replied that the appeal was not filed in time (r 25(4)(c) of the NCAT Rules).
Held (dismissing the appeal): (i) an extension of time to file should be granted ([20]):
“In the circumstances, an extension should be granted because the length of the delay is short, being at worst only one day, and the grounds of appeal are arguable. We also note that there were public holidays during the 28 day period and that it is feasible that the mail was slower during this time.”
See Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22].
(ii) The builder’s and homeowners’ applications were considered as separate proceedings, and it was found that only the latter involved a dispute over sums exceeding $30,000. Nonetheless, there was substantial overlap of the issues raised in each application so the same rules should be applied to both ([32]):
“Given that the dispute in both proceedings was essentially the same, it would not be fair, in this case, to deprive the homeowners of their costs, or to apply a different rule in respect of that part of the hearing which was attributable to the builder’s claims.”
Accordingly, the amount in issue was found to be more than $30,000 and r 38(2) was applied correctly.
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| | | Mitry v Zoom Relocations Group Pty Ltd [2018] NSWCATAP 88
Consumer & Commercial Division - General
Decision of: President; G Sarginson, Senior MemberCatchwords: APPEAL – consumer claim – whether decision not fair and equitable or against the weight of evidence – whether new evidence should be admitted |
| Udy v Tilley [2018] NSWCATAP 89
Consumer & Commercial Division - Tenancy
Decision of: M Harrowell, Principal Member; J McAteer, Senior MemberCatchwords: RESIDENTIAL TENANCY AGREEMENT – claim for refund of water usage charges –breach of agreement-time limit to bring application-date tenant became aware of breach |
| Green Apple Global Pty Ltd v La Brasserie Investments Pty Ltd [2018] NSWCATAP 90
Consumer & Commercial Division - Commercial
Decision of: M Harrowell, Principal Member; R Perrignon Senior Member Catchwords: RETAIL LEASE – damages for breach of obligation to repair – extent of obligation of tenant – state of premises at commencement of lease – no relevant findings EQUITABLE SET-OFF – ability to set-off claim for damages for misleading and deceptive conduct and unconscionable conduct |
| Wilson v Dash [2018] NSWCATAP 91
Consumer & Commercial Division - Home Building
Decision of: P Callaghan SC, Principal Member; D Goldstein, Senior MemberCatchwords: QUESTIONS OF LAW – absence of evidence – extra construction work, contractual regime for variations not followed – quantum meruit |
| Nikjoo v NSW Land and Housing Corporation [2018] NSWCATAP 92
Consumer & Commercial Division - Social Housing
Decision of: S Westgarth, Deputy President; G Sarginson, Senior Member Catchwords: APPEAL – residential tenancies – refusal of adjournment application – applicable principles – no error of law established APPEAL – residential tenancies – apprehended bias – no error of law established
APPEAL – residential tenancies – whether substantial miscarriage of justice has occurred – leave refused |
| Transport for NSW v Searle [2018] NSWCATAP 93
Administrative & Equal Opportunity Division
Decision of: P Durack SC, Senior Member; Dr J Renwick SC, Senior MemberCatchwords: APPEAL – administrative law – access to government information – risk management of high profile infrastructure project – information supplied to expert review team investigating project status under confidentiality regime – proof as to whether disclosure could reasonably be expected to prejudice the future supply of confidential information – error of law or fact – reconsideration of merits – whether overriding public interest against disclosure |
| Pampering Patisseries Pty Ltd v Fanos [2018] NSWCATAP 94
Consumer & Commercial Division - Commercial
Decision of: M Harrowell, Principal Member; J McAteer, Senior Member Catchwords: RETAIL LEASE – unconscionable conduct – fit out – time to carry out – implied term – outgoings – obligation to pay |
| Chi v Roger Fuller Pty Limited [2018] NSWCATAP 95
Consumer & Commercial Division - General
Decision of: D Cowdroy QC ADCJ, Deputy President; G Sarginson, Senior MemberCatchwords: APPEAL – consumer claim – error of law – jurisdictional error – procedural fairness – bias – no error of law established APPEAL – consumer claim – leave to appeal – substantial miscarriage of justice – leave refused Appeal – practice and procedure – adjournment application – applicable principles – adjournment refused |
| Xpert Joinery Pty Ltd v Jeong [2018] NSWCATAP 96
Consumer & Commercial Division - General
Decision of: R Titterton, Principal Member; J Currie, Senior Member Catchwords: PRACTICE AND PROCEDURE – leave to appeal – where hearing determined in absence of appellant but evidence filed |
| Rekrut and Scott v Champion Homes Sales Pty Ltd; Champion Homes Sales Pty Ltd v Rekrut and Scott [2018] NSWCATAP 97
Consumer & Commercial Division - Home Building
Decision of: Wright J, President; I Bailey AM SC, Senior MemberCatchwords: COSTS – NCAT Internal appeal – amount in issue in excess of $30,000 – r 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) and cl 20(4) of the Consumer, Trader and Tenancy Tribunal Regulation 2009 (NSW) – no issue of principle COSTS – general rule that costs follow the event – application of the rule and discretion – no issue of principle |
| Blessed Sydney Constructions Pty Ltd v Vasudevan [2018] NSWCATAP 98
Consumer & Commercial Division - Home Building
Decision of: Wright J, President; M Harrowell, Principal Member; L Pearson, Principal Member Catchwords: RENEWAL OF PROCEEDINGS – powers of Tribunal on renewal application – cl 8(4) of Sch 4 to the Civil and Administrative Tribunal Act 2013 (NSW) – construction of “any other appropriate order under this Act or enabling legislation as it could have made when the matter was originally determined” – whether Tribunal has power to make an order for the payment of money in place of a work order – Tribunal has power to make order for the payment of money by way of damages in this case even if such an order was not appropriate when the proceedings were originally determined |
| Ingate v Andrews [2018] NSWCATAP 99
Consumer & Commercial Division - Home Building
Decision of: N Hennessy LCM, Deputy President; D Goldstein, Senior Member Catchwords: HOME BUILDING – builder’s claim against owner for undocumented variations – quantum meruit – relevant principles – application of principles – appeal dismissed |
| Dimitropoulos v Capital Constructions Pty Ltd; Capital Constructions Pty Ltd v Dimitropoulos [2018] NSWCATAP 100
Consumer & Commercial Division - Home Building
Decision of: M Harrowell, Principal Member; R Titterton, Principal Member Catchwords: CONTRACT LAW – termination on notice – substantial breach – meaning of “substantial” REPUDIATION – election – manner by which repudiation can be accepted – reasonable time to make election – conduct in performance of contract while considering notice under contract
COSTS – exercise of discretion |
| ZGM v ZGN [2018] NSWCATAP 101
Guardianship Division
Decision of: A Britton, Principal Member; L Pearson, Principal Member; M Wroth, Senior Member Catchwords: HUMAN RIGHTS – Tribunals, commissions and other authorities – exercise of discretionary power under s 25M of the Guardianship Act 1987 (NSW) HUMAN RIGHTS – whether the appellant’s suitability to manage the estate of the protected person was a consideration the Tribunal was bound to take into account –whether Tribunal failed to have regard to a relevant consideration – whether the Tribunal had regard to an irrelevant consideration |
| Sydney RV Group Pty Limited v Johnson [2018] NSWCATAP 102
Consumer & Commercial Division - Motor Vehicles
Decision of: M Craig QC ADCJ, Principal Member; J McAteer, Senior Member Catchwords: ADMINISTRATIVE LAW – Civil and Administrative Tribunal – appeal – decision against the weight of evidence – whether substantial miscarriage of justice – significant chance of more favourable outcome |
| Jusayan v Ang [2018] NSWCATAP 103
Consumer & Commercial Division - Tenancy
Decision of: The Hon F Marks Principal Member; G Sarginson Senior Member Catchwords: APPEAL – grounds of appeal not particularised – no error identified in Decision under appeal – leave to appeal not made out – leave to appeal refused – appeal dismissed |
| Grant v Gillham; Christopher J Grant Pty Ltd v Gillham [2018] NSWCATAP 104
Consumer & Commercial Division - Home Building
Decision of: L Pearson, Principal Member; D Robertson, Senior MemberCatchwords: APPEAL – home building – identity of contracting parties – breach – determination of compensation – adequacy of reasons |
| Sol & Mar Pty Ltd v The SG Spark Group Pty Ltd [2018] NSWCATAP 105
Consumer & Commercial Division - Commercial
Decision of: K O’Connor, AM, ADCJ, Deputy President; K Ransome, Senior MemberCatchwords: APPEAL – consumer claim – no appearance of respondent at hearing – adjournment refused – appeal lodged out of time – no explanation for extensive delay |
| Knox v Bollen; Bollen v Knox [2018] NSWCATAP 106
Consumer & Commercial Division - Home Building
Decision of: K Rosser, Principal Member; S Frost, Senior Member Catchwords: APPEAL – costs where proceedings settled – adequacy of reasons |
| ZHH v ZHI [2018] NSWCATAP 107
Guardianship Division
Decision of: N Hennessy LCM, Deputy President; A Britton, Principal Member; M Bolt, General Member Catchwords: GUARDIANSHIP – appeal on a question of law – discretion to make a guardianship order – where appellant appointed as enduring guardian – where Tribunal decided to make a guardianship order because it was not possible to make decisions on an informal basis – whether the Tribunal made an error of legal principle – whether Tribunal made findings on material questions of fact – whether Tribunal took into account mandatory considerations |
| Hacienda Caravan Park Pty Ltd v Dodge [2018] NSWCATAP 108
Consumer & Commercial Division - Residential Communities
Decision of: G Curtin SC, Senior Member; T Simon, Senior MemberCatchwords: APPEALS – contracts – general contractual principles – formation – conduct – subsequent conduct STATUTORY INTERPRETATION – interpretation – text, context and purpose – conflict between provisions – hierarchy of provisions
WORDS AND PHRASES – “of a kind referred to in” – residential (Land Lease) Communities Act 2013 (NSW), Sch 2, cl 5(6) |
| Zeait v Singh [2018] NSWCATAP 109
Consumer & Commercial Division - Home Building
Decision of: R Titterton, Principal Member; Dr J Lucy, Senior Member Catchwords: COSTS – application of r 38(2) of the Civil and Administrative Tribunal Rules 2014 – meaning of “the amount claimed or in dispute in the proceedings is more than $30,000” |
| Foundas v Hellas Europe Australia Pty Ltd [2018] NSWCATAP 110
Consumer & Commercial Division - General
Decision of: M Harrowell, Principal Member; J T Kearney, Senior Member Catchwords: CONTRACT – principal and agent – liability of party for fees and charges of other party’s agent |
| Cusick Real Estate Pty Limited Trading As LJ Hooker Gosford v Kochan [2018] NSWCATAP 111
Consumer & Commercial Division - Commercial
Decision of: A P Coleman SC, Senior Member; R Perrignon, Senior Member Catchwords: COSTS – cost of appeal where appeal was from order for costs at first instance – no appeal from factual or other findings made below – special circumstances |
| Precise Builders (NSW) Pty Ltd v Jones & Krel [2018] NSWCATAP 112
Consumer & Commercial Division - Home Building
Decision of: L Pearson, Principal Member; A Boxall, Senior Member Catchwords: APPEAL – home building – work order – order to perform or procure performance of remedial work |
| QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAP 113
Administrative & Equal Opportunity Division
Decision of: Wright J, President; S Higgins, Senior Member Catchwords: APPEAL – leave to appeal from refusal to grant stay or make other order under s 60(2) of the Administrative Decisions Review Act 1997 (NSW) – no obvious factual error – no failure to take into account substantial material relating to a mandatory consideration – parties able to make further applications even if appeal not permitted ADMINISTRATIVE LAW – revocation of security licence by Commissioner of Police under s 26 of the Security Industry Act 1997 (NSW) – application for review of decision to the NSW Civil and Administrative Tribunal (NCAT) – refusal to grant a stay or make other order affecting the operation of the revocation decision – mandatory consideration of detriment under s 60(3)(a) of the Administrative Decisions Review Act 1997 (NSW) – lack of substantial material concerning detriment – further applications able to be made |
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