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| NCAT Appeal Decisions Digest December 2016 Decisions
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The NCAT Appeal Decisions Digest provides monthly keyword summaries of decisions of the NSW Civil and Administrative Tribunal (NCAT) Internal Appeal Panel.
The following NCAT Appeal Panel decisions were handed down during the month of December 2016. Each case title is hyperlinked to the full decision available on NSW Caselaw. |
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| The following case summaries are of significant decisions handed down by the NCAT Appeal Panel during December 2016.
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| Bull v NSW Land and Housing Corporation [2016] NSWCATAP 266
Consumer & Commercial Division - Social Housing
Judgment of: M Harrowell, Principal Member; A Boxall, Senior Member
Summary: The Appeal Panel considered whether any party bears the onus of proof where the rules of evidence do not apply. This appeal concerned a termination order made pursuant to the Residential Tenancies Act 2010. A further issue was whether the Briginshaw principle applied equally to judicial and administrative decision-makers [14] in circumstances where the Tribunal is “invited to make findings which amounted to establishing serious criminality” [16]. The Appeal Panel concluded that the party seeking relief still bore the onus of proof even though the rules of evidence do not apply. In dismissing the appeal, the Appeal panel, citing an unreported decision of the (then) Residential Tenancies Tribunal [45], observed that:
[49] [I]n residential tenancy proceedings in the Tribunal, usually there is a legal burden upon the party seeking relief to prove its case which is not removed merely because the rules of evidence do not apply. Further, where the dispute involves civil proceedings, as is the present case, this is the ordinary standard of proof, namely the balance of probabilities: see Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 at [2]; 67 ALJR 170.
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Keyword summaries for NCAT Appeal Panel decisions made during December 2016.
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Cleary v Pavier (No 2) [2016] NSWCATAP 262
Consumer & Commercial Division - Home Building
Judgment of: Dr J Renwick SC, Senior Member; T Simon, Senior Member Catchwords: COSTS – Appeal Panel – Home Building – no questions of law – application for costs - dismissed |
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ZCD v ZCE [2016] NSWCATAP 265
Guardianship Division - Guardianship
Judgment of: C Fougere, Principal Member; A Boxall, Senior Member; A Lowe, General Member Catchwords: APPEAL – appellant appointed as enduring guardian for second respondent– guardianship order made appointing Public Guardian with access and services functions – no adverse findings in relation to appellant – failure to provide adequate reasons for inclusion of services function in guardianship order and appointment of Public Guardian in relation to services function – appeal upheld – application to be reconsidered with further evidence |
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Bull v NSW Land and Housing Corporation [2016] NSWCATAP 266
Consumer & Commercial Division - Social Housing
Judgment of: M Harrowell, Principal Member; A Boxall, Senior Member Catchwords: Onus of proof - where rules of evidence do not apply. Question of law - determination of facts by a reasoning process marred by a patent error, illogicality or perversity, no evidence, error in relation to jurisdictional fact, failure to afford procedural fairness. Leave to appeal - substantial miscarriage of justice |
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Golding v Salloum [2016] NSWCATAP 267
Consumer & Commercial Division - Motor Vehicles
Judgment of: M Craig QC, Principal Member; D Goldstein, Senior Member Catchwords: APPEAL – sale of motor vehicle by motor vehicle dealer – vehicle defective – refund of purchase price ordered by Tribunal – whether there was evidence upon which to determine the purchase price – question of law – evidence available to the Tribunal to determine the purchase price – no error of law – whether leave to appeal to lead additional evidence should be granted – no substantial miscarriage of justice established – leave to appeal refused |
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Li v Zhang & Ors [2016] NSWCATAP 268
Consumer & Commercial Division - Tenancy
Judgment of: L Pearson, Principal Member; D Robertson, Senior MemberCatchwords: APPEAL: Set aside decision – Whether error on question of law – Adequacy of reasons – Whether decision under appeal should be confirmed |
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Pineiro and Kennett v Valenzuela [2016] NSWCATAP 269
Consumer & Commercial Division - Tenancy
Judgment of: K Rosser, Principal Member; L P Robberds QC, Senior MemberCatchwords: Appeal - Landlord and tenant – Residential Tenancies Act - 90 day termination notice – notice alleged to be retaliatory – order that residential tenancy agreement terminated – notice alleged not to be signed by agent – agent alleged not to exist – denial of procedural fairness based on how the Tribunal hearing was conducted – decision said to be unreasonable – application made to set aside the decision – evidence not before Appeal Panel as to what occurred at the Tribunal hearing |
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Commissioner for Fair Trading v Younan [2016] NSWCATAP 270
Occupational Division - Administrative Review
Judgment of: P R Callaghan SC, Principal Member; J D Harris SC, Senior Member Catchwords: APPEAL – Civil and Administrative Tribunal – administrative review – disciplinary action under Home Building Act – operation of transitional provisions concerning statutory amendments – sufficiency of rectification order – statutory construction – question of law |
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Johnson v Lukeman [2016] NSWCATAP 272
Consumer & Commercial Division - Home Building
Judgment of: R Seiden SC, Principal Member; T Simon, Senior MemberCatchwords: APPEAL – Civil and Administrative Tribunal (NSW) – procedural fairness - refusal to adjourn proceedings –adequacy of preparation time – adequacy of reasons APPEAL – Civil and Administrative Tribunal (NSW) – expert evidence – adequacy of reasons – whether report provided no evidence or unreasonable to rely upon APPEAL – Civil and Administrative Tribunal (NSW) – s 48MA of the Home Building Act – relevant consideration |
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Saqa v Kahshro [2016] NSWCATAP 273
Consumer & Commercial Division - Tenancy
Judgment of: M Harrowell, Principal Member; R Hamilton SC, Senior Member Catchwords: Rent- order for return of overpayment. Leave to appeal- no error disclosed, leave refused |
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