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| NCAT Appeal Decisions Digest August 2019 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 2019. Each case title is hyperlinked to the full decision available on NSW Caselaw.
The latest issue features summaries of recent Appeal Panel decisions, including: - Edwards v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2019] NSWCATAP 208
- ZJJ v ZJK [2019] NSWCATAP 209
- Turk v NSW Land and Housing Corporation [2019] NSWCATAP 207
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| Edwards v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2019] NSWCATAP 208
Occupational Division
Armstrong J, President; L Pearson, Principal Member
The appellant applied for a contractor licence under s 19 of the Home Building Act 1989 (NSW) in 2017. That application was refused by the respondent under s 20(1)(a) of that Act on the basis that the appellant was not a fit and proper person on account of his failure to disclose convictions for criminal offences in a similar application made in 2013. The appellant had been convicted of criminal offences in 2012 relating to conduct from 2004 to 2006. He served a custodial sentence between 2012 and 2014. Despite that, the 2013 application was approved. The offences were disclosed in the 2017 application.
At first instance, the Tribunal upheld the decision of the respondent. It considered the failure to declare the convictions in the 2013 application demonstrated a lack of integrity and poor character. The Tribunal did not accept the appellant’s explanations for that failure. It was acknowledged that in 2013 the appellant sought a National Police Certificate at the request of the respondent, but Tribunal considered that the appellant did not draw it to the attention of the respondent even after the licence had been issued.
At the Appeal, the appellant sought leave to adduce two additional documents relating to the 2013 application as evidence which had not been produced by the respondent to the Tribunal at first instance. The Panel considered this failure constituted an additional ground of appeal. The remaining grounds of appeal (as stated by the appellant) were: That the Tribunal failed to properly consider the appellant’s unchallenged evidence; that the Tribunal incorrectly applied s 25(1)(a) of the Home Building Act 1989; that the Tribunal failed to exercise procedural fairness during the hearing and in relation to the decision; that the Tribunal incorrectly applied authority concerning taking account of good behaviour in the community; and, that the Tribunal failed to give proper weight to the fact that the 2013 application was approved.
Held (allowing the appeal):
(i) The failure to produce the material at first instance created an injustice sufficient to justify granting leave to appeal and allowing the appeal. Section 58 of the Administrative Decisions Review Act 1997 (NSW) requires administrative decision makers to produce documents to assist the Tribunal in conducting an administrative review. The provision captures all materials that could logically affect the determination of a fact or issue before the Tribunal: Bristrol Custodians v Chief Commissioner of State Revenue [2012] NSWADTAP 44 at [53]. ([17]-[30]). The Panel considered that the non-disclosure was not an error of law because it did not amount to a breach of procedural fairness on the part of the Tribunal. The Tribunal followed proper procedure and gave proper directions based on the material it had been presented with: Chand v Railcorp [2009] NSWADTAP 64 at [24]; Chand v Administrative Decisions Tribunal [2011] NSWCA 131 at [57]. The failure to disclose the documents was the fault of the respondent. On that basis, the Panel considered that in the interests of fairness and justice, leave to appeal should be granted because that failure gave rise to an ‘injustice which is reasonably clear, in the sense of going beyond merely what is arguable …’: Collins v Urban [2014] NSWCATAP 10. The new evidence was significant, credible and relevant to material issues. It demonstrated that the respondent had in fact received a final police report about the appellant’s criminal history and, having considered it, granted the licence. The alleged failure of the appellant to disclose that information was central to the Tribunal’s findings on his credibility and integrity. The Panel set aside the decision of the Tribunal to the extent that it determined the appellant to not be a fit and proper person to hold a licence under s 20(1)(a) of the Home Building Act 1989 (NSW), and remitted that question to a differently constituted Tribunal. ([31]-[41])
(ii) The failure to consider the unchallenged evidence was not an appellable error. The evidence was of telephone calls between the appellant and respondent in anticipation of lodging the 2013 application. That evidence was not addressed by the Tribunal. However, the evidence did not go to a question that was determinative of the proceedings. The Panel also noted that unchallenged evidence is usually accepted where it is not illogical and unreliable: Hall v NSW Land & Housing Corporation [2018] NSWCATAP 257. But it also said that it need not be accepted simply because it is unchallenged: Taupac v HVAC Constructions (Queensland) Pty Ltd [2010] NSWCA 293. ([51]-[57])
(iii) The Tribunal did not misinterpret or incorrectly apply s 25(1)(a) of the Home Building Act 1998 (NSW). The Tribunal’s treatment of the appellant’s Commonwealth tax offences in its decision was consistent with previous decisions. ([58]-[60])
(iv) The Tribunal did not fail to exercise procedural fairness during the hearing or in relation to its findings. The appellant alleged that the Tribunal failed to indicate at the hearing that it formed an adverse view of part of his evidence .The Tribunal has an obligation to alert a party to an issue that may be adverse to them if not already known: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576. But the appellant was clearly aware of the main issue at the hearing, namely whether he was a fit and proper person to hold a contractor licence. He had ample opportunity to comment and provide evidence on that question. The Tribunal was not obliged to indicate its view at the hearing about that question or the value of parts of the appellant’s evidence. ([61]-[67])
(v) The Tribunal did not incorrectly apply Cooper v Commissioner for Fair Trading [2016] NSWCATOD 15. That case says that a new application may be treated favourably if it follows a period of good behaviour in the community. It was not correct for the appellant to contend that the Tribunal found that the applicant was required to make another application before evidence of good character and behaviour could be considered.
(vi) The Panel did not need to reach a concluded view on this question. However, it noted that an alleged failure to give ‘sufficient weight’ to evidence does not identify a question of law: AHB v HSW Trustee and Guardian [2017] NSWCATAP 79; House v R (1936) 55 CLR 499. The correct approach is to set aside administrative decisions where the weight given to a factor is considered ‘manifestly unreasonable’, or where a finding or inference is made in the absence of supporting evidence: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390. ([70]-[75])
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| ZJJ v ZJK [2019] NSWCATAP 209
Guardianship Division
A Britton, Principal Member; A Boxall, Senior Member; M Bolt, General Member
The appellant is the son of a woman living with dementia in an aged-care facility. On 31 October 2018 the Guardianship Division made a guardianship order in respect of the appellant’s mother, appointing the appellant’s brother as guardian. The appellant appeals that decision. He had already lodged an appeal against the guardianship order in the Supreme Court. On 25 March 2019, Lindsay J dismissed those proceedings. The appellant also appeals two interlocutory decisions of the Tribunal. One made in August 2018 was a decision declining to summarily dismiss an application for a financial management order made by the appellant’s brother. The other made in February 2019 was a decision to decline to order that the appellant’s brother withdraw documents filed in support of that application.
The grounds and questions raised on appeal were: - Whether the Appeal Panel has the power to determine the internal appeal in light of the Supreme Court proceedings;
- Whether to grant leave to appeal the decision to decline to summarily dismiss the application for a financial management order; and
- Whether to grant leave to appeal the decision to decline to direct that the appellant’s brother withdraw documents produced in support of the application for a financial management order.
Held (dismissing the appeal):
(i) The appellant is precluded from bringing the internal appeal. Clause 12(1)(a) of Sch 6 of the NCAT Act provides that a party to proceedings may appeal against a decision by ‘either’ an internal appeal to the Appeal Panel ‘or’ an appeal to the Supreme Court. Sub-clauses (3) and (4) preclude a party from bringing both. The appellant contended that those sub-clauses did not apply because the Supreme Court proceedings were not in the nature of an ‘appeal’ because they were not ‘on a question of law’ and required leave of the court. The Panel rejected that argument, holding that the context and purpose of the provision did not warrant that narrow interpretation: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355. That interpretation was inconsistent with the meaning of the phrase ‘appeal to the Supreme Court’ as used in other parts of the legislation: Registrar of Titles (WA) v Franzon [1975] HCA 41; (1975) 132 CLR 611. The appellant also argued that cl 12(4) of Sch 6 only precluded concurrent appeals, not consecutive ones. The Panel rejected that argument for similar reasons, holding that it was inconsistent with the plain meaning of the provision and in particular the words ‘either’ and ‘or’ used in cl 12(1). The appellant also argued that Lindsay J implicitly granted leave to appeal by using the phrase ‘…to the present proceedings in the Guardianship Division of NCAT’. The Panel also rejected that argument.
(ii) Leave to appeal to appeal the decision to decline to summarily dismiss the application for the financial management order is refused. The appellant could not establish a ground for leave to appeal: Collins v Urban [2014] NSWCATAP 17. The appellant had failed to properly address this question in his submissions for the appeal. The appellant’s bald assertion that his brother did not have a ‘genuine concern for the welfare’ of their mother was unsubstantiated.
(iii) Leave to appeal the decision to decline to order the withdrawal of documents is refused. The documents consisted of bank statements relevant to a period when the appellant was the mother’s attorney. The Panel rejected several unsubstantiated arguments by the appellant, including that the documents should be withdrawn because they were irrelevant and that by filing the documents the appellant’s brother breached an obligation of confidentiality. The documents were clearly relevant because they went to the question of the appellant’s suitability to manage financial affairs.
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| Turk v NSW Land and Housing Corporation [2019] NSWCATAP 207
Consumer and Commercial Division - Social Housing
G Curtin SC, Senior Member; G Sarginson, Senior Member
The appellant occupied social housing provided by the respondent pursuant to a residential tenancy agreement. The respondent contended that the appellant breached that agreement and commenced proceedings in the Tribunal, seeking a termination order and an order for vacant possession. ([1]-[2])
At first instance, the parties reached an agreement and orders by consent were made under s 59 of the NCAT Act. Those orders finally disposed of the proceedings on 14 March 2019 and gave effect to a termination order and an order for possession. At that time, the appellant was suffering from several medical conditions for which he takes several daily medications and lived in socially and economically unfavourable circumstances. He was supported by a disability support pension. Also at that time, the appellant was living with one of his sons, who was a minor. ([4])
The grounds of appeal (as stated by the appellant) were ([18]-[21]):
- That the Tribunal lacked jurisdiction to make the orders by consent because it failed to consider the interests of his son, being a vulnerable person, before making those orders;
- That the Tribunal had no jurisdiction to make those orders because the appellant’s consent was affected by duress; and
- That based on the allegations in support of grounds (1) and (2), leave to appeal should be granted and the appeal upheld because the Tribunal’s orders were not fair and equitable.
The Appeal Panel also made some remarks about challenges to consent orders generally. An appeal from consent orders is possible under the NCAT Act. However, the Panel noted that the practice in the Supreme Court was for challenges to consent orders to be dealt with in fresh proceedings: Singh v Ginelle Pty Ltd [2010] NSWCA 310 at [63]. The Tribunal at first instance does not have a power equivalent to UCPR r 36.15 or the inherent jurisdiction enjoyed by the Supreme Court to set aside consent orders. Even though the Tribunal at first instance did not err, the Panel decided to entertain the appeal noting the power to determine procedure in relation to any matter for which the NCAT Act does not make provision, and the general requirement to conduct the case with equity and good conscience and with little formality and few technicalities: ss 38(1), (4) of the NCAT Act.
Held (dismissing the appeal):
(i) The appellant’s son was not considered to be a ‘vulnerable person’ under r 37 of the NCAT Rules, and as a consequence, his interest did not need to be accounted for when the consent orders were made. The Tribunal’s power to make orders giving effect to an agreed settlement is conferred by s 59 of the NCAT Act. That allows the Tribunal to make any orders if it is satisfied that it would have the power to make a decision in terms of the agreement. That is qualified by r 37 of the NCAT Rules which requires the Tribunal to consider the interests of a ‘vulnerable person’ before giving effect to a settlement, if the Tribunal considers that the person may be directly affected by the orders sought because that person ‘is a party to, or subject of…’ the proceedings, and that it is appropriate to do so in the circumstances. The appellant’s son was a minor and was therefore prescribed as a ‘vulnerable person’. However, he was not a party to the proceedings. The appellant contended that his son was nonetheless a ‘subject of’ those proceedings. The Panel rejected that argument. The Panel considered that the phrase in this context referred to a ‘main topic, issue or matter’ about which the proceedings were concerned. The appellant’s son did live with the appellant and would therefore be affected by the outcome of the proceedings. However, he was not a ‘main topic, issue or matter’ of those proceedings. The Tribunal is not required to consider a vulnerable person’s interests simply because he or she will be affected by the outcome of proceedings. ([36]-[49])
(ii) The appellant’s consent was not affected by duress because there was no threat or unlawful conduct. An agreement between parties may be set aside if there are grounds to do so, such as illegality, misrepresentation, abuse of confidence and duress: Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235 at 243-4. Duress is limited to circumstances where there is threatened or unlawful conduct involving a person or that person’s commercial and financial interests: Australia & New Zealand Banking Group v Karam [2005] NSWCA 344 at [66]. The evidence demonstrated that the appellant was subject to some pressure from his representative in consenting to the orders. That fell short of what is required, namely a threat or unlawful conduct. ([50]-[62])
(iii) The appellant did not suffer a substantial miscarriage of justice. Leave to appeal may be granted where an appellant has suffered a substantial miscarriage of justice because a decision of the Tribunal was not fair and equitable: Sch 4, cl 12 of the NCAT Act. The principles relevant to granting leave to appeal were set out in Collins v Urban [2014] NSWCATAP 17 at [65]-[84]. The Panel did not consider that there had been a substantial miscarriage of justice on the basis of the evidence relevant to the question of duress. ([63]-[66])
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Brookhouse v Sawarsin [2019] NSWCATAP 195
Consumer and Commercial Division - Tenancy
Decision of: K Ransome, Senior Member; A Bell SC, Senior MemberCatchwords: APPEAL - Section 80(3) of the Civil and Administrative Tribunal Act 2013 (NSW) - determination of appeal by way of rehearing where no sound recording of the Tribunal hearing available. |
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Annova Pty Ltd v Keshavarz [2019] NSWCATAP 196
Consumer and Commercial Division - General
Decision of: A Suthers, Principal Member; L Wilson, Senior MemberCatchwords: APPEAL – Consumer Law – expert evidence not obtained prior to hearing – no adjournment sought or granted –no injustice to appellant demonstrated – appeal dismissed |
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Reisner v Bridge Housing Limited [2019] NSWCATAP 197
Consumer and Commercial Division - Social Housing
Decision of: A Britton, Principal Member; K Rosser, Principal MemberCatchwords: APPEAL – Reinstatement application – set aside application |
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Collins v Department of Fair Trading [2019] NSWCATAP 199
Occupational Division
Decision of: Cole DCJ, Deputy President; J Kearney, Senior MemberCatchwords: ADMINISTRATIVE LAW – administrative tribunals - Civil and Administrative Tribunal (NSW) – Appeal Panel – procedural fairness – leave to appeal other than on a question of law |
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Long v Metromix Pty Ltd [2019] NSWCATAP 198
Consumer and Commercial Division - General
Decision of: K Rosser, Principal Member; J Kearney, Senior MemberCatchwords: APPEAL – Setting aside of consent orders – whether agreement made under duress – whether renewal application misconceived |
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The Owners - Strata Plan No 6097 v Placanica [2019] NSWCATAP 200
Consumer and Commercial Division - Strata
Decision of: S Westgarth, Deputy President; A Boxall, Senior MemberCatchwords: COSTS ON APPEAL |
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Chief Commissioner of State Revenue v McFadden [2019] NSWCATAP 202
Occupational Division
Decision of: M Harrowell, Principal Member; Dr R Dubler SC, Senior MemberCatchwords: TAXES AND DUTIES – land tax – principal place of residence exemption – strata lots in the same ownership – whether strata lots beneficially owned by the same persons
CONSTRUCTIVE TRUST – whether the registered owner of the strata lot holds the property as constructive trustee for her husband |
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Brown v Tourni [2019] NSWCATAP 204
Consumer and Commercial Division - Home Building
Decision of: T Simon, Principal Member; D Farlie, Senior MemberCatchwords: RENEWAL – home building – adequacy of reasons –– procedural fairness |
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Café Great Pty Ltd v Oh [2019] NSWCATAP 203
Consumer and Commercial Division - Commercial
Decision of: G K Burton SC, Senior Member; J S Currie, Senior MemberCatchwords: RETAIL LEASE – extension of time to appeal – no error of law – no demonstrated basis for leave to appeal on alleged error of fact |
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P&N NSW Pty Ltd v Milovic [2019] NSWCATAP 201
Consumer and Commercial Division - Home Building
Decision of: M Harrowell, Principal Member; J Kearney, Senior MemberCatchwords: ADMINISTRATIVE LAW – Reasons – breach of warranty – failure to provide adequate reasons |
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Alexander Johnson v Sydney RV Group Pty Ltd [2019] NSWCATAP 206
Consumer and Commercial Division - Motor Vehicle
Decision of: Dr R Dubler SC, Senior Member; S Thode, Senior MemberCatchwords: MOTOR VEHICLE – consumer law – ACL – fit for purpose – major failure – acceptable quality – whether error of law |
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Dawood v Master Wealth Control Pty Ltd t/as DG Institute [2019] NSWCATAP 205
Consumer and Commercial Division - General
Decision of: L Pearson, Principal Member; J McAteer, Senior MemberCatchwords: APPEAL – consumer claim – refund of course fees – whether misleading and deceptive conduct |
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Jin v Jupiter St James Pty Ltd [2019] NSWCATAP 210
Consumer and Commercial Division - Tenancy
Decision of: L Pearson, Principal Member; J McAteer, Senior MemberCatchwords: APPEAL – residential tenancy - termination notice based on frustration of agreement - landlord’s claim for break fee – tenant’s claim for abatement of rent |
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Paraiso v CBS Build Pty Ltd [2019] NSWCATAP 211
Consumer and Commercial Division - Home Building
Decision of: D Charles, Senior Member; A Boxall, Senior MemberCatchwords: APPEAL – Home Building – claim for variations on contractual basis – further claims for adjustment of provisional sum - alternative claims by builder on quantum meruit basis – no error of law – leave to appeal declined |
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The Owners – Strata Plan No. 12289 v Donaldson [2019] NSWCATAP 213
Consumer and Commercial Division - Strata
Decision of: G Curtin SC, Senior Member; K Ransome, Senior MemberCatchwords: LAND LAW – strata title – common property – common property rights by-law – unreasonable refusal – objective test – reasons – subsequent evidence CONSTITUTIONAL LAW – Commonwealth Constitution – jurisdiction - whether an owners corporation is a “resident” for the purposes of s 75(iv) of the Constitution |
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Hanson v Metricon Homes Pty Ltd (No 2) [2019] NSWCATAP 214
Consumer and Commercial Division - Home Building
Decision of: L Pearson, Principal Member; D Fairlie, Senior MemberCatchwords: COSTS – appeal dismissed – whether order for costs should be made |
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Plath v Snowy Monaro Regional Council [2019] NSWCATAP 212
Consumer and Commercial Division - General
Decision of: Armstrong J, President; S Westgarth, Deputy PresidentCatchwords: COSTS – special circumstances – exercise of discretion |
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Simcoe v Bate [2019] NSWCATAP 216
Consumer and Commercial Division - Home Building
Decision of: L Pearson, Principal Member; J McAteer, Senior MemberCatchwords: APPEAL – failure to appear - whether reasonable opportunity to be heard – whether denial of procedural fairness - whether rehearing should be ordered |
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The Owners SP 89023 v AT Building Pty Ltd (No 2) [2019] NSWCATAP 215
Consumer and Commercial Division - Home Building
Decision of: L Pearson, Principal Member; R Hamilton SC, Senior MemberCatchwords: COSTS - home building- appeal from first instance costs order |
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Stefanis v Oneview Construction Pty Limited [2019] NSWCATAP 218
Consumer and Commercial Division - Home Building
Decision of: K Rosser, Principal Member; J Wakefield, Senior MemberCatchwords: APPEAL – Expert evidence - Section 18F defence – Leave to appeal |
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Nationwide Builders Pty Ltd v Le Roy [2019] NSWCATAP 220
Consumer and Commercial Division - Home Building
Decision of: Dr R Dubler SC, Senior Member; D Charles, Senior MemberCatchwords: HOME BUILDING – rectification and completion costs – damages for late completion
DISCRETION – order making power under s 48O of Home Building Act – application of preferred outcome principle |
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DB Homes Australia Pty Limited v Kes [2019] NSWCATAP 221
Consumer and Commercial Division - Home Building
Decision of: Armstrong J, President; G Sarginson, Senior MemberCatchwords: APPEALS – Building and Construction – Contract – Repudiation – Adequacy of findings |
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Guo v The Owners - Strata Plan No. 70067 [2019] NSWCATAP 219
Consumer and Commercial Division - Strata
Decision of: G Curtin SC, Senior Member; S Thode, Senior MemberCatchwords: LAND LAW – strata title – common property – maintenance and repair of common property – long-standing defects and delays - functions of owners corporation – alleged breach of statutory obligation for maintenance and repair - recent compulsory appointment of strata manager by tribunal – commencement of work and planning for further work – discretion not to make orders |
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DISCLAIMER: This publication has been prepared for information purposes only. The NCAT Appeal Panel Decisions Digest should not be relied on as legal advice nor is it a substitute for reading the decisions in full. NCAT does not accept any liability to any person for the information (or the use of the information) which is provided in this publication.
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