| | | | | NCAT Appeal Decisions Digest August 2018 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.
The following NCAT Appeal Panel decisions were handed down during August 2018. Each case title is hyperlinked to the full decision available on NSW Caselaw.
The latest issue features summaries of recent Appeal Panel decisions, including: - ZHC v ZHP [2018] NSWCATAP 190, which looked at the fiduciary duties arising under an enduring power of attorney;
- Wynne Avenue Property Pty Limited v MJHQ Pty Limited [2018] NSWCATAP 197, regarding “special circumstances” and ordering costs on an indemnity basis;
- Transport for NSW v Waters [2018] NSWCATAP 200, involving proceedings under s 8(1) of the Privacy and Personal Information Protection Act 1998 (NSW);
- Woodward v D J & T L Mellross Pty Ltd [2018] NSWCATAP 201, which considered whether costs could be awarded where a party has succeeded only on a “minor separable issue”; and
- P & N NSW Pty Ltd t/as Euro Solar v Park [2018] NSWCATAP 202, regarding the adequacy of reasons, where inconsistent written and oral reasons were given.
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| ZHC v ZHP [2018] NSWCATAP 190
Guardianship Division
Decision of: M Schyvens, Deputy President; M Harrowell, Principal Member; A Lowe, General Member
ZHC sought orders to regain authority to manage the estate of ZHP, her elderly mother, which was committed to the NSW Trustee and Guardian (NSWTG). ZHC appealed against the Tribunal’s findings in relation to (i) breach of her fiduciary duty as attorney, (ii) failing to have sufficient regard for ZHP’s views, (iii) conflict of interests, and (iv) the risk of inflaming family conflict.
Held (dismissing the appeal): (i) the conclusion that ZHC breached her fiduciary duty was supported by “an evident and intelligible justification” ([43]). First, she admitted to mixing ZHP’s property with her own ([44]-[47]):
“Irrespective of whether the appellant’s actions lacked the character of dishonesty, this was sufficient in itself for the Tribunal to make the finding that it did.”
Second, she breached her duty to not provide gifts or benefits to others from ZHP’s estate, and failed to submit sufficient evidence to satisfy the onus that such benefits were “given with the valid consent of the donor” ([48]).
See the “useful summary of the test to be applied” in determining whether a decision was “legally unreasonable” so as to give rise to an error of law, provided in DHQ v DHR [2018] NSWCATAP 128 at [34]-[37] ([42]).
(ii) The Tribunal had sufficient regard to ZHP’s views ([57]), and gave greater weight to ZHP’s direct answers than to her interjections ([58]). Although she said ZHC “could be trusted”, she did not “definitively state” that ZHC should be appointed ([57]).
In any event, the Tribunal’s primary reasoning for not appointing ZHC was the “significant potential” for conflict of interests ([59]):
“As such, even if the Tribunal had understood ZHP to have unequivocally been of the view that the appellant should be appointed to manage her affairs and the Tribunal then duly took account of this, we are satisfied that the outcome would have been the same”.
(iii) In exercising its discretion to appoint a financial manager, under s 25M(1) of the Guardianship Act 1987 (NSW), the Tribunal correctly assessed the potential for conflict of interests ([65]-[67]). It sought to avoid placing ZHC “in a position of requiring her to make decisions which would have had a negative financial impact on her and her family in order to benefit her mother’s estate.” ([66])
(iv) In appointing the NSWTG so as not to “inflame familial conflict” ([73]-[76]), the Tribunal was entitled to rely on the evidence of ZHC’s brother that ([73]):
“the appointment of an independent financial manager would be to the benefit of family relationships and … would avoid the blurring of financial affairs.”
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| Wynne Avenue Property Pty Limited v MJHQ Pty Limited [2018] NSWCATAP 197
Consumer and Commercial Division - Commercial
Decision of: P Durack SC, Senior Member; D Charles, Senior Member
The respondent sought an interim order for continuing occupation of a retail shop. By consent, the order was granted. The appellant was ordered to pay costs on an indemnity basis. On appeal, the appellant contended that the Tribunal erred in law in (i) finding “special circumstances”, and (ii) ordering costs on an indemnity basis.
Held (allowing the appeal): (i) the Tribunal erred in finding “special circumstances”, within the meaning of s 60 of the NCAT Act ([31]-[39]), as follows:
1) “the tenability or unreasonableness of a position taken by a litigant before litigation commences, which provokes the commencement of proceedings, is capable of being a special circumstance” ([32]);
2) the respondent bore the “onus … to satisfy the Tribunal that there were “special circumstances” warranting a costs order in its favour … A shifting of the onus is an error of law” ([33]-[34]);
3) “by itself, mounting a defence which is not likely to succeed” is not sufficient to warrant a conclusion of special circumstances ([36]);
4) “Although lengthy or elaborate reasons were not required, it was not adequate for the Tribunal to state, simply: “the respondent’s submissions do not persuade me that their (sic) defence was likely to succeed”” ([38]); and
5) “the costs order [the Tribunal] imposed in the circumstances was a disincentive generally to the early resolution of proceedings.” ([39])
(ii) In ordering costs on an indemnity basis, the Tribunal took into account an irrelevant consideration – namely, conduct not at issue in the proceedings ([40]).
Craig v South Australia (1995) 184 CLR 163 at 179; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82]; 351, applied.
It also failed to give adequate reasons, to support an indemnity costs order, explaining the “delinquency” of the appellant ([41]-[43]).
Hernady v Raccani [2016] NSWCATAP 67 at [37], [43], [44], and [52]-[54], applied.
Setting the orders aside, the Appeal Panel invited further submissions to re-determine the matter, rather than remit it ([45]-[48]).
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| Transport for NSW v Waters [2018] NSWCATAP 200
Administrative and Equal Opportunity Division
Decision of: Hennessy LCM, Deputy President; R Seiden SC, Principal Member; Dr J Lucy, Senior Member
These proceedings concerned the collection, by Transport for NSW, of a passenger’s travel history data when using his Gold Opal Card.
Under s 8(1) of the Privacy and Personal Information Protection Act 1998 (NSW), a public sector agency must not collect “personal information” unless it is: (a) for a lawful purpose, that is directly related to a function or activity of that agency; and (b) reasonably necessary for that purpose.
At first instance, the collection was found to have breached s 8(1). On appeal, it was claimed that the Tribunal erred by (i) failing to respond to a substantial argument, and (ii) asking itself the wrong question in formulating the test for breach of s 8(1)(b).
Held (allowing the appeal): (i) noting that “failure to attend to a substantial argument of a party is a denial of natural justice and an error of law” ([31]), the “threshold question” was whether the argument was indeed put forward to the Tribunal ([33]). The Appeal Panel was not satisfied that the argument was put forward at first instance, in the manner contended on appeal ([39]).
(ii) The Tribunal erred in law in failing to exercise its jurisdiction by asking itself the wrong question ([43] and [48]); namely, it “identified the purpose of collecting the Registration Data but failed to identify the purpose of collecting the Travel Data.”
Craig v State of South Australia (1995) 184 CLR 163 at 179, applied.
The Appeal Panel was “conscious that it should not approach the task of construing the Decision with any overzealous technicality or with an eye to finding error” ([46]).
Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh, Gummow JJ), citing McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 616 (von Doussa J), applied
(iii) A new hearing (s 80(3) of the NCAT Act) was ordered on the basis that it would be in the interests of justice to finally resolve the issues between the parties ([49]).
Hammond v Ozzys Cheapest Cars Pty Ltd [2015] NSWCATAP 65, applied.
Among other questions (see [63]), this new hearing would need to determine “What precisely is the personal information and when does the relevant collection occur?” ([52]) The Appeal Panel made the following comments about s 8 proceedings:
“[58] The concept of “purpose” is central to the operation of the information protection principles including the collection principle in s 8. …
[59] One of the concerns of s 8 and the other information protection principles is to create transparency when agencies deal with personal information. …it would be anomalous if the agency were permitted to determine or frame the purpose of collection at the time of an alleged breach. ...
[60] We consider that, taken together, these provisions [ss 8, 10, 13 and 33] evince a legislative intention that the individual should be made aware, at or around the time of collection, of the purpose for which his or her information is being collected, and should be able to ascertain the purpose for which it will be used.”
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| Woodward v D J & T L Mellross Pty Ltd [2018] NSWCATAP 201
Consumer and Commercial Division - Home Building
Decision of: L Pearson, Principal Member; D A C Robertson, Senior Member
This costs decision followed an appeal by the homeowners against orders arising under a building contract. The appeal was upheld on the minor issue of installing a water tank of less than the contracted capacity, but otherwise dismissed. The homeowners sought costs, without reasons as to why costs should be awarded.
Held (allowing the appeal in part): (i) the “just result” was that there should be no order as to costs, “the home owners having failed on every issue except one minor separable issue”, which took up very little hearing time ([18]-[20]).
Regarding the recoverability of travel and accommodation costs ([21]):
“…there is authority that travel and accommodation costs incurred by a party in attending a hearing of the Tribunal are not “costs” within the meaning of s 60 of the Civil and Administrative Tribunal Act: Profitability Consulting Pty Ltd v Thorpe [2018] NSWCATAP 41. Accordingly, even if we had been minded to make an order for costs, we could only have ordered the builder to pay the home owners the amount of the filing fee and not the amounts claimed by the home owners in respect of travel and accommodation costs.”
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| P & N NSW Pty Ltd t/as Euro Solar v Park [2018] NSWCATAP 202
Consumer and Commercial Division - Home Building
Decision of: R Titterton, Principal Member; Dr J Lucy, Senior Member
After the respondents retained the appellant to install a “solar heating system”, they discovered that the integrated back up system, or battery, did not work properly. The appellant was ordered to refund the amount paid for the battery.
The main issue on appeal was (i) the adequacy of reasons, including (ii) discrepancies between the written and oral reasons given at first instance.
Held (allowing the appeal): (i) the Tribunal’s reasons were “manifestly inadequate” ([44]). A summary of the relevant principles was given in Camilleri v Eastlake [2018] NSWCATAP 176 at [26] ([43]):
“It is correct that a failure to give reasons is an error of law: Pettitt v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 278-279. However, the extent and content of the reasons required will depend upon the particular case and the issues under consideration: Moloney v Collins [2011] NSWSC 628. The duty does not require a court or tribunal to spell out in minute detail every step in the reasoning process or refer to every single piece of evidence. It is sufficient if the reasons adequately reveal the basis of the decision, expressing the specific findings that are critical to the determination of the proceedings: Stoker v Adecco Gemvale Constructions Pty Limited [2004] NSWCA 449 at 41. It is essential to expose the reasoning on a point critical to the contest between the parties: Pollard v RRR Corporation Pty Limited [2009] NSWCA 110 at [58].”
(ii) The discrepancies between the written and oral reasons were “apt to lead to confusion” ([46] and [51]):
“This is another basis upon which the Tribunal's reasons were inadequate. As the Appeal Panel observed in Moussa Enterprises Pty Ltd v Stanford [2015] NSWCATAP 99 at [32], fundamentally, the reasons, be they oral or written, must do justice to the issues posed by the parties’ cases.”
The giving of oral and additional written reasons should be avoided ([50]):
“the better practice (at least for the work of the Tribunal in its Consumer and Commercial Division) is, at the conclusion of the hearing, to:
(1) make orders and give oral reasons; or
(2) make no orders (and therefore give no reasons), with both orders and reasons following later; or
(3) at the conclusion of the hearing, make orders only, with written reasons following.”
It was not necessary to decide whether the Tribunal erred in ordering a full refund, in circumstances where only a refund for the value of the battery was sought ([31]-[36]).
Despite opposition from the parties, ordering a new hearing was considered to be the appropriate relief ([62]-[63]):
“We consider that, in order to give effect to the guiding principle set out in s 36 of the Act, being to facilitate the just, quick and cheap resolution of the real issues in the proceedings, it is preferable not to delay the resolution of the proceedings by remitting the appeal to the Tribunal, and for us to proceed by way of a new hearing.”
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| | | Catapult Constructions Pty Ltd v Denison No 2 [2018] NSWCATAP 186
Consumer and Commercial Division - Home Building
Decision of: Ian Bailey AM SC, Senior Member; Gregory Sarginson, Senior Member Catchwords: APPEAL – Home Building Act – s 48O, terms of order to rectify |
| Mitsiou v Zanatta; Jenalp Pty Limited v Mitsiou [2018] NSWCATAP 187
Consumer and Commercial Division - Home Building
Decision of: M Harrowell, Principal Member; Dr R Dubler SC, Senior Member Catchwords: APPEAL – extension of time for filing of appeal – application to rely upon new evidence HOME BUILDING CLAIM – measure of compensable loss where contract for supervisory works is only part-performed – question of fact as to whether payments in cash were made |
| Rodny v Stricke (No. 2) [2018] NSWCATAP 188
Consumer and Commercial Division - Strata
Decision of: M Harrowell, Principal Member; R Seiden SC, Principal Member Catchwords: ADMINISTRATIVE LAW – functus officio – power to remake decision COSTS – special circumstances – partial success – costs order based on issues |
| Scoular v Ostle [2018] NSWCATAP 189
Consumer and Commercial Division - Home Building
Decision of: M Harrowell, Principal Member; K Ransome, Senior Member Catchwords: CONTRACT – supply of solar power system – terms of contract – claim for unpaid purchase price – rebate unrecoverable – deduction of rebate from unpaid purchase price where purchaser decommissions system |
| ZHC v ZHP [2018] NSWCATAP 190
Guardianship Division
Decision of: M Schyvens, Deputy President; M Harrowell, Principal Member; A Lowe, General Member Catchwords: APPEAL – appeal of decision of the Guardianship Division – review of an enduring power of attorney – decision to treat as an application for financial management – appeal on a question of law – whether finding that the attorney was in breach of her fiduciary obligations was legally unreasonable – duty not to mix the property of the principal with the attorney’s own property – whether there was a failure to take account of the views of the person subject of the application – appointment of family member as manager and undue conflict of interest – appeal dismissed |
| Fraud Detection and Reporting Pty Ltd v Department of Justice [2018] NSWCATAP 191
Administrative and Equal Opportunity Division
Decision of: The Hon F Marks Principal Member; Dr J Lucy Senior MemberCatchwords: GIPA APPLICATION – excluded information – held no entitlement to information RECORDING OF TRIBUNAL PROCEEDINGS – application by party – held no valid reason for exercise of discretion non-publication order – representative of party has made threats and engaged in inappropriate conduct – use of social media – held non-publication order justified |
| Bajic v Paraskevopoulos [2018] NSWCATAP 192
Consumer and Commercial Division - Home Building
Decision of: R Titterton, Principal Member; D Robertson, Senior Member Catchwords: BUILDING AND CONSTRUCTION – building contract – adequacy of reasons – whether Tribunal erred in failing to consider a party’s admission against interest – resulting effect on weight to be given to expert report |
| ZHH v ZHI (No 2) [2018] NSWCATAP 193
Guardianship Division
Decision of: Hennessy LCM, Deputy President; A Britton, Principal Member; M Bolt, General Member Catchwords: COSTS – whether special circumstances exist – whether Appeal Panel has power to order costs under the Suitor’s Fund Act 1951 (NSW) |
| Tassone v Masters Home Improvement Australia Pty Ltd [2018] NSWCATAP 194
Consumer and Commercial Division - General
Decision of: Mr L Robberds QC, Senior Member; Mr D Goldstein, Senior Member Catchwords: ADJOURNMENTS – rejection period s 262 of the Australian Consumer law |
| Anderson v J W Lanfranchi Pty Ltd [2018] NSWCATAP 195
Consumer and Commercial Division - Home Building
Decision of: Dr R Dubler SC, Senior Member; J T Kearney Senior Member Catchwords: APPEAL – whether error of law – failure to provide proper reasons HOME BUILDING CLAIM – whether Schedule of Works formed part of the contract |
| Kostov v Ecclesia Housing Limited [2018] NSWCATAP 196
Consumer and Commercial Division - Social Housing
Decision of: M Schyvens, Deputy President; D Goldstein, Senior Member Catchwords: APPEAL – Residential tenancy - Termination of residential tenancy agreement – Limitations on internal appeals when a warrant of possession has been executed - Whether the Tribunal denied the tenant procedural fairnes |
| Wynne Avenue Property Pty Limited v MJHQ Pty Limited [2018] NSWCATAP 197
Consumer and Commercial Division - Commercial
Decision of: P Durack SC, Senior Member; D Charles, Senior Member Catchwords: COSTS – retail lease applications for interim orders and final relief for lessee to secure continued occupation of premises in shopping centre – settled by consent orders at first directions hearing – costs orders made on the papers including indemnity costs – whether errors of law in Tribunal’s findings of special circumstances and delinquency of lessor – order for re-determination of costs application by Appeal Panel |
| ZID v Green [2018] NSWCATAP 198
Decision of: P Durack SC, Senior Member; P Boyce, Senior Member Catchwords: APPEAL – residential tenancy – occupancy of unapproved “granny flat” – illegality – effect of illegality on tenancy agreement – termination of tenancy agreement for expiry of fixed term – claim in restitution for recovery of rent paid – alternative claim for damaged for breach of the tenancy agreement
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| ZID v Green (No. 2) [2018] NSWCATAP 199
Consumer and Commercial Division - Tenancy
Decision of: P Durack SC, Senior Member; P Boyce, Senior Member Catchwords: APPEAL – residential tenancy – non-publication or anonymisation order – anonymisation order continued |
| Transport for NSW v Waters [2018] NSWCATAP 200
Administrative and Equal Opportunity Division
Decision of: Hennessy LCM, Deputy President; R Seiden SC, Principal Member; Dr J Lucy, Senior Member Catchwords: ADMINISTRATIVE LAW – access to government information – where appellant alleged that respondent had collected his travel data via a Gold Opal Card for an unlawful purpose – whether Tribunal had erred in failing to respond to a substantial argument articulated by the respondent – whether the Tribunal had erred in asking itself the wrong question |
| Woodward v D J & T L Mellross Pty Ltd [2018] NSWCATAP 201
Consumer and Commercial Division - Home Building
Decision of: L Pearson, Principal Member; D A C Robertson, Senior Member Catchwords: COSTS – appeal allowed in part – success on minor separable issue – whether costs should be awarded |
| P & N NSW Pty Ltd t/as Euro Solar v Park [2018] NSWCATAP 202
Consumer and Commercial Division - Home Building
Decision of: R Titterton, Principal Member; Dr J Lucy, Senior Member Catchwords: APPEAL – adequacy of reasons – where Tribunal failed to adequately reveal the basis of the decision, expressing the specific findings that were critical to the determination of the proceedings – where written reasons materially different to oral reasons |
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