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| NCAT Appeal Decisions Digest April 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 April 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: - DNM v NSW Ombudsman [2019] NSWCATAP 77, which was a review of an access application for information claimed to be “excluded information” held by the NSW Ombudsman. The Appeal Panel considered the meaning of the phrase “relates to a function” in the Government Information (Public Access) Act 2009 (GIPA Act).
- Office of Environment and Heritage v Scenic NSW Pty Ltd [2019] NSWCATAP 87, which related to an application for joinder by third party objectors to a review of an access application under the GIPA Act.
- Transport for New South Wales v Waters (No 2) [2019] NSWCATAP 96, relating to whether Mr Waters’ privacy had been breached, contrary to the Privacy and Personal Information Protection Act 1998 (PPIP Act), by Transport NSW’s collection of certain data from Mr Waters using his Gold Opal card to catch NSW public transport.
- CCM v Western Sydney University [2019] NSWCATAP 103, considering allegations of privacy breaches contrary to the PPIP Act and the exemption in s25(b) of that Act.
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| DNM v NSW Ombudsman [2019] NSWCATAP 77
Administrative and Equal Opportunity Division - GIPA and Privacy
N Hennessy, LCM Deputy President; K Ransome, Senior Member
DNM applied for information from the NSW Ombudsman under the Government Information (Public Access) Act 2009 (GIPA Act) in relation to monitoring undertaken by the Ombudsman of public interest disclosures, complaints and requests DNM made to a public sector agency ([6]). The Ombudsman found that the application was for “excluded information” under s43 of the GIPA Act being information that “relates to” the Ombudsman’s “complaint handling, investigative and reporting functions” (Sch2, cl2 of the GIPA Act) and was therefore, an invalid application ([1]-[2]).
The Tribunal at first instance held that the words “relates to a function” in the definition of “excluded information” in Sch4 of the GIPA Act should be given their usual wide meaning. The Tribunal considered that the requested information related to an excluded information function so the application was invalid ([7], [23]).
The appellant raised numerous grounds of appeal. These included some that the Appeal Panel did not have power to consider because they were not material to the issue before the Appeal Panel of whether the application was invalid ([25]). The grounds of appeal that the Appeal Panel could hear were: that the Tribunal gave inadequate reasons; the Tribunal’s direction that the Ombudsman did not have to file copies of the requested information was legally incorrect; and that the Tribunal misconstrued the definition of “excluded information” in the GIPA Act ([24]).
Held (dismissing the appeal): The Tribunal did not make any errors of law, nor are there any grounds justifying the granting of leave to appeal on other grounds ([8]).
(i) The Tribunal does not need to give detailed reasons for matters which are not central to the issues to be determined ([27] citing Bar-Mordecai v Rotman & Ors [2000] NSWCA 123 at [212]). The Tribunal gave adequate reasons because it gave detailed reasons on material issues rejecting the appellant’s arguments about the effect of non-compliance by the Ombudsman with the Tribunal’s timetable and assertions relating to the character of the Ombudsman’s legal representative ([27]).
(ii) The appellant would need leave to appeal the failure of the Tribunal to direct the Ombudsman to file certain material because it was an interlocutory decision: s80(2)(a) Civil and Administrative Tribunal Act (CAT Act). Even if leave were granted, the ground would fail as the issue was not the nature of the requested information but whether the information sought was “excluded information” ([30]).
(iii) The Tribunal at first instance asked itself an unnecessary question of whether the monitoring and reporting function in s6B(1)(e) of the Public Interest Disclosures Act 1994 (NSW) conferred one or two functions on the Ombudsman. The Tribunal should have simply asked itself the broader question of whether the information sought related to the Ombudsman’s excluded information functions ([3], [19]-[21], [35]).
The phrase “relates to” has been given a broad meaning but must be understood in the respective legislative and factual context ([36] citing O’Grady v Northern Queensland Co Ltd [1990] HCA 16; Workers’ Compensation Board of Queensland v Technical Products Pty Ltd [1998] HCA 49; French CJ and Hayne J in Travelex Ltd v Commissioner of Taxation [2010] HCA 33). A purposive approach to legislative construction is to be preferred under s33 of the Interpretation Act 1987 (NSW).
“The primary objective of the GIPA Act may be seen to be giving members of the public an enforceable right to access government information. But the GIPA Act has other purposes including restricting or prohibiting access when there is an overriding public interest against disclosure. In this case, that public interest against disclosure is the interest in delivering responsible and effective government” ([39]).
Whether extrinsic material can be admitted will depend on whether it is “capable of assisting in the ascertainment of the meaning of the provision” under s33 of the Interpretation Act. The Tribunal at first instance did not rely on the appellant’s extrinsic material. It is not possible for the Appeal Panel to determine whether the Tribunal erred at first instance in not relying on the appellant’s extrinsic material as the appellant did not identify this information for the Appeal Panel ([42]).
The provisions relating to “excluded information” create exceptions to the presumption in favour of disclosing government information and create a balance. Therefore, the Tribunal did not fall into error in not giving them a ‘beneficial’ interpretation ([43]). The Ombudsman’s functions, including his/her role as “watchdog”, and the way “excluded information” is defined for other agencies are other relevant aspects of the legislative context ([44]-[47]).
The appeal was dismissed as “[w]hen the Ombudsman monitors compliance with legislation by public authorities, he is gathering information to ensure that the public authority is fulfilling its functions. That information is excluded information because it is sufficiently related to Ombudsman’s “complaint handling, investigative and reporting functions”” ([52]).
The appellant’s application for costs was refused ([56]).
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| Office of Environment and Heritage v Scenic NSW Pty Ltd [2019] NSWCATAP 87
Administrative and Equal Opportunity Division - Administrative Review
N Hennessy ADCJ, Deputy President
Office of Environment and Heritage v Scenic NSW Pty Ltd [2019] NSWCATAP 87
Administrative and Equal Opportunity Division - Administrative Review
N Hennessy ADCJ, Deputy President
Scenic NSW Pty Ltd (Scenic) applied for certain information from the Office of the Environment and Heritage (the agency). The agency decided to provide Scenic with some of the information sought following consultation with Ms Kirkby and Mr Gibbs, despite their objections to the disclosure of it including a heritage report. The parties first sought an internal and then an external review. The agency decided to defer giving access to Scenic to the information until the Information Commissioner had conducted his/her external review (the deferral decision) ([1]-[2]). Scenic applied to the Tribunal to review the deferral decision. At first instance, the Tribunal held it had jurisdiction to review the deferral decision and directed the agency to reconsider it ([3]).
The agency appealed the Tribunal’s decision. Ms Kirkby and Mr Gibbs applied to be joined as parties to that appeal ([1], [4]).
The grounds of appeal were that the Tribunal erred in holding it had jurisdiction to review the deferral decision; and that the Tribunal denied the parties procedural fairness by not limiting itself to the jurisdictional question, because it also directed the agency to reconsider its decision ([4]). A review of the internal review decision is also on foot ([5]).
Held (dismissing the application for joinder): Relevant to the Tribunal’s exercise of the discretion under s44 of the CAT Act to join a party to the proceedings are “the nature and extent of the review being undertaken, the position or interest of the party to be joined and the circumstances of the case” ([8]). The decision to join a person as a party turns on the facts of the particular case. There is no automatic right to appear and be heard ([10]).
Ms Kirkby and Mr Gibbs could have been aggrieved by the review in the Tribunal of the deferral decision. Thus, they would have been entitled to appear and be heard in those proceedings in accordance with s104(3) of the GIPA Act ([15]). If Ms Kirkby and Mr Gibbs had participated in the first instance proceedings they would not have had the right to appeal the Tribunal’s decision. However, they would have had the right to appear and be heard on appeal ([16]). The Tribunal was satisfied that Ms Kirkby and Mr Gibbs were not aware of the first instance proceedings until they received notice of the decision ([17]).
Ms Kirkby and Mr Gibbs could be aggrieved by a decision of the Appeal Panel on a review of the deferral decision and therefore, have the right to appear and be heard pursuant to s104(3) of the GIPA Act. It is therefore, not “proper” or “necessary” for them to be joined as parties to the appeal under s44 of the CAT Act. The joinder application is dismissed ([20]).
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| Transport for New South Wales v Waters (No 2) [2019] NSWCATAP 96
Administrative and Equal Opportunity Division - GIPA and Privacy
N Hennessy ADCJ, Deputy President; R Seiden SC, Principal Member; J Lucy, Senior Member
Mr Waters holds a Gold Opal card (a card for seniors and pensioners), which allows him to travel on the Opal public transport network for no more than $2.50 a day. The card readers collect data including time, date and location, each time anyone with an Opal card taps on and taps off. For persons whose Opal card is registered, such as Mr Waters, the card reader also collects the Opal Card number. This means that by noting the Opal card number and searching the databases for information provided when the card was registered, a particular customer’s travel movements can be identified ([2]).
Mr Waters claims that Transport for NSW has unlawfully collected his personal information in breach of s8(1)(b) of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) from his use of an Opal card to travel on public transport ([1], [3]). At first instance, the Tribunal held that Transport for NSW had breached s8(1) of the PPIP Act ([5]). The Appeal Panel’s first decision was to allow the appeal, set aside the Tribunal’s decision and order that the appeal be dealt with by way of a new hearing ([5]).
A customer applying for a Gold Opal card provides information including their name, address and date of birth (the “Registration Data”), which is recorded in two databases ([7]). The information the subject of Mr Waters’ complaint (the “Travel Data”) is recorded in the Transaction Database and includes: opal card number, date/time of transaction, location, mode of transport, type of Opal card used, journey cost and transaction sequence number ([8], [10]). A customer’s identity can be identified from his or her Travel Data by connecting it with the Registration Data that matches the Opal card number ([10]). Registration is mandatory for Gold Opal card holders but not for holders of other types of Opal cards ([12]). Data collected from unregistered Opal cards (the “Raw Travel Data”) cannot be linked to the Registration Data because the latter is non-existent for unregistered cards ([12]).
The following issues arose for determination in the re-hearing of the appeal ([13]): - What is the personal information the subject of the live dispute?
- When is that personal information collected?
- What is the purpose of its collection?
- Is that purpose lawful and directly related to a function or activity of the appellant?
- Is the collection of that personal information reasonably necessary for the identified purpose?
- (If different to (1)) What is the purpose of the collection of the Travel Data (acknowledging that it is personal information)?
- Is that purpose a lawful purpose that is directly related to a function or activity of the appellant?
- Is the collection of the Travel Data reasonably necessary for the purpose identified in answer to the previous question?
Held (allowing the appeal):
(i) It is uncontested that Travel Data is personal information within the meaning of s4 of the PPIP Act.
“The word “collection” is to be “understood as referring to circumstances where the agency is, or has, engaged in the gathering together of information about an individual”: PN v Department of Education and Training (GD) [2010] NSWADTAP 59 at [25]. These provisions “are not concerned with internal movements of personal information within agencies”: ZR v NSW Department of Education and Training [2009] NSWADTAP 69 at [64]” ([19]).
Personal information cannot be “collected” from an individual at a time that is later than when he/she provides the information to the agency or when it is received by the agency. Where the agency subsequently deals with the information this is not a second collection ([21]). The Travel Data is personal information at the time it is collected by the card reader because by considering the Registration Database Mr Waters’ identity can “reasonably be ascertained” ([22]).
(ii) Section 8(1)(a) of the PPIP Act requires personal information to be collected for a lawful purpose ([23]). Transport for NSW’s submissions that its purpose in collecting Travel Data was “to calculate and charge each customer with the correct fare, to make payments to transport operators and otherwise to manage the ticketing system” were accepted ([27]).
(iii) The identified purposes are lawful purposes and are directly related to a function of Transport for NSW as required under s8(1)(a) of the PPIP Act ([29]).
It was unnecessary to consider the submissions that depend on there being a separate collection given the Appeal Panel’s finding that there is only one collection ([31]).
(iv) The Appeal Panel concluded:
“[34] Collection of the information must be reasonably necessary for the appellant’s ticketing purpose. The legal character of that information within s4(1) of the Privacy Act is relevant only insofar as it means that s8(1) must be applied at all.
[35] We agree with the appellant that the issue is whether the collection of the particular information that constitutes “personal information” is reasonably necessary for the lawful purpose for which it has been collected. Section 8(1)(b) does not require us to answer the question of whether the collection of information as personal information is reasonably necessary. Mr Waters’ submission focuses on the consequences of collection, not on whether the collection is reasonably necessary for the ticketing purpose.
[36] We find that the collection of the Travel Data is for the ticketing purpose (calculation and collection of the correct fare) and is reasonably necessary for that purpose” ([34]-[36]) (emphasis in original).
Transport for NSW’s decision on internal review is affirmed.
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| CCM v Western Sydney University [2019] NSWCATAP 103
Administrative and Equal Opportunity Division - GIPA and Privacy
L Pearson, Principal Member; D Goldstein, Senior Member
During 2014 and 2015 Western Sydney University (WSU) sent a number of emails to a third party in response to a claim under the Fair Work Act that contained some personal information of CCM (a former WSU employee). In 2015, CCM made three applications for external review under s55 of the Privacy and Personal Information Protection Act 1998 (PPIP Act) in relation to this conduct of WSU that she alleged breached her privacy. Two other individuals BSZ and BXK sought external review of WSU’s conduct from the same facts. These were referred to as “privacy claims 1, 2, and 3” ([2]-[4]).
WSU applied to the Tribunal for procedural orders that the applications of the three applicants (including privacy claims 1, 2 and 3) be managed concurrently and heard one after another so that WSU’s evidence could be used in each ([6]). WSU filed in the Tribunal and served on the parties statements and written submissions in support of the procedural application, which were the subject of “privacy claim 5” ([7]). WSU sent a number of emails under cover of a letter following the making of those procedural orders, which were the subject of “privacy claim 6” ([10]). WSU decided to file in the Tribunal documents CCM had provided to the Australian Human Rights Commission (AHRC). WSU had refused to conduct an internal review application made by CCM claiming that the request had been filed out of time. This material was the subject of “privacy claim 7” ([13]).
At first instance, the Tribunal held in relation to privacy claim 5 that WSU was not required to comply with ss18 or 19 of the PPIP Act and that the disclosure was permitted under s38 and 70(c) of the CAT Act being for the purpose of any legal proceeding, namely the procedural application made by WSU ([19]). At first instance, the Tribunal held in relation to privacy claim 6 that the information sought was not personal information as it came within s4(3)(e) of the PPIP Act being information in investigation reports. Further, disclosure of CCM’s personal information contained in statements, submissions and some emails was permitted under s70(c) of the CAT Act and therefore exempt under s25(b) of the PPIP Act ([23]-[24]). In relation to privacy claim 7, WSU had refused to conduct an internal review as the request had been lodged out of time. At first instance, the Tribunal dismissed this claim on the basis that the Tribunal did not have jurisdiction under s55 of the PPIP Act as there was not any “findings” or “action taken” by WSU which could be reviewed under s53(7) of the PPIP Act ([30]).
CCM appeals the Tribunal’s external review decisions on the following grounds: - the Member did not consider all the evidence provided so failed to provide adequate reasons;
- the Member erred in narrowly reviewing the internal review requests;
- the evidence before the Member would permit the Tribunal to make a finding of breach and to not make such a finding was unreasonable;
- the applicant was denied natural justice; and
- the Tribunal had jurisdiction to hear the matters ([33]).
The Appeal Panel held that CCM’s grounds of appeal raised the following issues: - whether the Member erred in her identification of the scope of the internal review request in privacy claims 5 and 6;
- whether the Member erred in her application of s25(b) of the PPIP Act in privacy claims 5 and 6;
- whether the Member erred in her conclusion that the Tribunal had no jurisdiction to hear and determine privacy claim 7;
- whether the Member provided adequate reasons; and
- whether there was a denial of procedural fairness.
Held (dismissing the appeal): (i) In respect of privacy claim 5, the Member did not err in identifying the disclosure of CCM’s personal information to the Tribunal and of BSZ and BXK as the conduct in issue in the application and the engagement of the disclosure information protection principles in s18 of the PPIP Act ([52]). In respect of privacy claim 6, the Member did not err in identifying the disclosure of CCM’s personal information, and complaints about TRIM files and access to investigation reports as the conduct in issue ([53]). “An external review application cannot exceed the scope of the internal review application unless the parties otherwise agree: CYL v YZA [2017] NSWCATAP 105 at [43]” ([54]). The Member did not err in stating the principle to be applied and considered how the conduct in question should be characterised. CCM has not established an error on a question of law ([55]).
(ii) The words in the exemption in s25(b) of the PPIP Act “otherwise permitted (or is necessarily implied or reasonably contemplated)” should be construed broadly. “[I]n deciding whether or not s25 is applicable the Tribunal is not required to go so far as to make a microscopic comparison of an alternative law to which an agency refers in justification” ([63]). The phrase “an Act or any other law” in s25(b) can be read as referring to legislation or the common law in force in New South Wales. The Appeal Panel noted the divergent views on whether “law” in s25 encompasses laws of other jurisdictions and favoured the view that it did not, but held it was not necessary to determine the issue for the purpose of these proceedings ([65]-[66]).
The Member did not err in concluding that WSU was exempt from compliance with s18 of the PPIP Act because WSU’s disclosures made in the process of their application for procedural orders were necessarily implied or reasonably contemplated by the legislation enabling the Tribunal to manage its own procedure, namely s38 of the CAT Act ([73]). It would appear that s70 of the CAT Act applies only to persons such as Tribunal staff or members who exercise functions under the CAT Act but, it was not necessary to determine this in these proceedings ([74]). “[T]he Tribunal must adopt a practical approach, in undertaking a broad inquiry of what is reasonably contemplated by the Act or law referred to in s25(b)”. It was clearly open to the Member to find that disclosure of personal information in a party’s statements or submissions provided in accordance with orders of the Tribunal made under s38 of the CAT Act came within s25(b) of the PPIP Act ([77]). The Member did not err in law in applying s25(b) to privacy claims 5 and 6 ([84]).
(iii) It was open to the Member to determine that the date on which CCM first became aware of the conduct the subject of the internal review, and thus the date from which the time for lodging an internal review ran was 19 April 2016 ([87]). The decision of WSU not to exercise its discretion under s53(3)(d) of the PPIP Act to extend the time within which CCM could lodge the internal review application is not reviewable by the Tribunal: BQ v Commissioner of Police, NSW Police Service [2002] NSWADT 64. As such, the Member did not err in concluding that the Tribunal had no jurisdiction to review privacy claim 7 ([88]). The Appeal Panel noted that “any inadvertent disclosure of information by the holding of material on a Tribunal file not otherwise made public would be excluded by operation of s6(1) of the PPIP Act…” ([89]).
(iv) While the Member’s reasons were narrower than the broad range of matters raised by CCM they were “comprehensive in relation to the central issues to be determined”. The Member’s reasons were adequate and there was no error on a question of law ([91]).
(v) CCM requested and was permitted to appear at the hearing by telephone. CCM could request a break at any time, had the relevant material before her to refer to as the hearing progressed and had a document summarising the alleged PPIP Act breaches. CCM was self-represented but, had previously conducted matters in the Tribunal. In these circumstances, CCM was not at any disadvantage despite not being legally represented when WSU was. There was no denial of procedural fairness ([92]-[93]).
(vi) Section 49 of the CAT Act recognises the governing rule for the Tribunal is that “subject to moderation as appropriate, the Tribunal sits in the open, its proceedings are public and its reasons for decision are given publicly”. The Tribunal can in appropriate cases make orders to significantly restrict access to Tribunal reasons under s64 of the CAT Act. In reading ss49 and 64 of the CAT Act, s64 should be accorded primacy ([101]-[102]). Despite the sensitivity of the matters to CCM, the circumstances did not warrant the making of any order to restrict publication other than the usual order for anonymisation of the name of the applicant and other persons referred to ([103]).
Appeal dismissed.
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Tom v Jenkins [2019] NSWCATAP 74
Consumer and Commercial Division - Home Building
Decision of: F Corsaro SC, Senior Member; D Charles, Senior Member
Catchwords: APPEALS – builder’s claim against engineer for indemnity in respect of builder’s liability to home owners for defective residential building work – builder’s claim based on allegations of negligence and misleading conduct - extension of time required to appeal – lack of procedural fairness – statutory interpretation of s48K of the Home Building Act – lack of jurisdiction for the Tribunal to determine the builder’s claim – appeal dismissed
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Webster v Tom [2019] NSWCATAP 75
Consumer and Commercial Division - Home Building
Decision of: F Corsaro SC, Senior Member; D Charles, Senior Member
Catchwords: APPEALS – home building claim against builder – allegation of home owners as to a misclassification of building site by an engineer not joined as a party by the owners – terms of builder’s engagement – agreed scope of works for builder - no error of law – competing expert evidence on ongoing cracking and the construction of piers - whether the Tribunal’s findings were not fair and equitable or against the weight of evidence – whether new evidence was reasonably available - no other grounds for leave to appeal – appeal dismissed
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Thomas v Commissioner of Police, NSW Police Force (No 2) [2019] NSWCATAP 76
Administrative and Equal Opportunity Division - Administrative Review
Decision of: N Hennessy ADCJ, Deputy President; K Ransome, Senior Member
Catchwords: APPEAL – firearms prohibition order – whether appeal should be accepted out of time – whether Tribunal erred by providing inadequate reasons – whether leave should be granted to appeal on grounds other than questions of law
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ZIV v ZIZ [2019] NSWCATAP 78
Guardianship Division
Decision of: A Britton, Principal Member; J Kearney, Senior Member; F Given, General Member
Catchwords: COSTS — whether “special circumstances” within the meaning of s60 of the Civil and Administrative Tribunal Act 2013 (NSW) is established
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Scarano v Palm Pools and Spas Pty Ltd [2019] NSWCATAP 79
Consumer and Commercial Division - Home Building
Decision of: S Higgins, Senior Member; Dr J Lucy, Senior Member
Catchwords: HOME BUILDING – Whether the Tribunal erred in failing to find that an agreed damages clause is a penalty clause – Whether the appellant should be granted leave to raise a ground on appeal which was not argued before the Tribunal –– Whether the Tribunal should have considered the appellant’s claim under the Australian Consumer Law instead of the Contracts Review Act
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Rathod v Liu [2019] NSWCATAP 80
Consumer and Commercial Division - Tenancy
Decision of: T Simon, Principal Member (acting); S Higgins, Senior Member
Catchwords: LEASES AND TENANCIES – residential lease – adequacy of reasons – failure to make an essential finding of fact – termination - abandonment
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ZKK v ZKL [2019] NSWCATAP 81
Guardianship Division
Decision of: A Britton, Principal Member; A Suthers, Principal Member; F Given, General Member
Catchwords: ADMINISTRATIVE LAW — adequacy of reasons
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Wynne Avenue Property Pty Ltd v MJHQ Pty Ltd (No 2) [2019] NSWCATAP 82
Consumer and Commercial Division - Commercial
Decision of: The Hon F Marks Principal Member; J McAteer Senior Member
Catchwords: COSTS – application for costs by appellant successful on appeal – principles – “special circumstances” – held resistance of appeal by respondent insufficient to characterise proceedings as involving special circumstances – application for costs dismissed.
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ZKY v ZKX [2019] NSWCATAP 83
Guardianship Division
Decision of: M Schyvens, Deputy President; K Ransome, Senior Member; L Stewart, General Member
Catchwords: APPEAL – Guardianship Division – Financial Management – appeal from decision appointing NSW Trustee and Guardian as financial manager – denial of procedural fairness – failure to afford opportunity to be heard on matter – factual error unreasonably arrived at and clearly mistaken – fundamental misunderstanding of evidence given at hearing – consideration of conflict of interest between subject person and proposed manager
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Murphy v Trustees Catholic Aged Care Sydney [2019] NSWCATAP 84
Consumer and Commercial Division - Retirement Villages
Decision of: R Titterton, Principal Member; A Suthers, Senior Member
Catchwords: COSTS - whether a hearing should be dispensed with – which costs rule applies – whether costs should be awarded on the indemnity basis whether a gross sum costs order should be made
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The Owners - Strata Plan No 6097 v Placanica [2019] NSWCATAP 85
Consumer and Commercial Division - Strata
Decision of: S Westgarth, Deputy President; A Boxall, Senior Member
Catchwords: Appeals - jurisdictional error – proceedings for the imposition of a civil penalty – appeals to the Tribunal or to a Court
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Butler v Gibson [2019] NSWCATAP 86
Consumer and Commercial Division - Commercial
Decision of: F Corsaro SC, Senior Member; K Ransome, Senior Member
Catchwords: DIVIDING FENCE - Procedural fairness - denial of access ---whether error of law established – whether leave to appeal justified – whether decision just and equitable – whether decision contrary to the weight of the evidence – failure to weigh evidence
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El Ali v Antoniou [2019] NSWCATAP 88
Consumer and Commercial Division - Tenancy
Decision of: M Harrowell, Principal Member; J Kearney, Senior Member
Catchwords: PRACTICE AND PROCEDURE – conditional orders – failure to comply with consent orders and conditions agreed therein – power to extend the time for compliance with a condition
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| The Sydney Building Company Limited v Sinac (No 2) [2019] NSWCATAP 89 Consumer and Commercial Division - Home Building
Decision of: A P Coleman SC, Senior Member; J Lucy, Senior Member
Catchwords: COSTS: no question of principle
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Feedback Deli Pty Ltd v The Owners – Strata Plan No 36613 (No 2) [2019] NSWCATAP 90
Consumer and Commercial Division - Strata
Decision of: R C Titterton, Principal Member; A Boxall, Senior Member
Catchwords: Further order pursuant to s63 of the Civil and Administrative Tribunal Act 2013 (NSW)
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Feedback Deli Pty Ltd v The Owners – Strata Plan No 36613 [2019] NSWCATAP 91
Consumer and Commercial Division - Strata
Decision of: R Titterton, Principal Member; A Boxall, Senior Member
Catchwords: COSTS – special circumstances
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Eager v North Sydney Retirement Trust (No. 2) [2019] NSWCATAP 92
Consumer and Commercial Division - Retirement Villages
Decision of: P Durack SC, Senior Member; A Boxall, Senior Member
Catchwords: COSTS - costs of appeal – appeal as whole not misconceived – partial success on appeal – dismissal of some claims as misconceived upheld on appeal - impact on costs at first instance -application of requirement for special circumstances
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Endre v The Owners - Strata Plan No. 17771 [2019] NSWCATAP 93
Consumer and Commercial Division - Strata
Decision of: M Harrowell, Principal Member; J McAteer, Senior Member
Catchwords: STRATA SCHEMES – s126 Strata Schemes Management Act 2015 – Work approval order – limitations on making order – meaning of unreasonably refuse – relevant considerations – individual objectors personal views not determinative
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An v Hwang [2019] NSWCATAP 94
Consumer and Commercial Division - General
Decision of: L Pearson, Principal Member; S Frost, Senior Member
Catchwords: APPEAL – Jurisdiction of Tribunal – Matter between residents of different States – Tribunal not a ‘court of a State’ – Tribunal lacked jurisdiction to hear and determine the matter at first instance
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Builtex Constructions Pty Ltd v He [2019] NSWCATAP 95
Consumer and Commercial Division - Home Building
Decision of: K Rosser, Principal Member; R Perrignon, Senior Member
Catchwords: APPEAL – construction of building contract – whether notice of dispute given in accordance with the contract – whether notice of default given in accordance with the contract – whether contract validly terminated – exercise of costs discretion – leave to appeal
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The Owners – Strata Plan No. 80412 v Vickery (No 2) [2019] NSWCATAP 97
Consumer and Commercial Division - Strata
Decision of: M Harrowell, Principal Member; K Rosser, Principal Member
Catchwords: COSTS – rr38 and 38A Civil and Administrative Tribunal Rules 2014 – discretion – party unsuccessful on application for leave to appeal – usual order – successful party entitled to costs
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Cusack v Valsamis [2019] NSWCATAP 98
Consumer and Commercial Division - Tenancy
Decision of: D Cowdroy QC ADCJ, Deputy President; D A C Robertson, Senior Member
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Azad t/as GT Western Autos v Schaaf [2019] NSWCATAP 99
Consumer and Commercial Division - Motor Vehicles
Decision of: D Cowdroy QC ADCJ, Deputy President; D A C Robertson, Senior Member
Catchwords: CONSUMER LAW – consumer guarantees – major defect – rejection of goods – appropriate orders where goods subject to third party financing
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Wassef v Panagiotopoulos [2019] NSWCATAP 101
Consumer and Commercial Division - Home Building
Decision of: K Rosser, Principal Member; J Lucy, Senior Member
Catchwords: APPEAL – Interlocutory decision - Leave to appeal – no issue of principle
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Biskupic v Allen [2019] NSWCATAP 102
Consumer and Commercial Division - Tenancy
Decision of: L Robberds QC, Senior Member; D Goldstein, Senior Member
Catchwords: RESIDENTIAL TENANCIES – Claim for excessive rent pursuant to s44(1)(b) of the Residential Tenancies Act 2010
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Kapeller v BH Australia Constructions Pty Ltd [2019] NSWCATAP 104
Consumer and Commercial Division - Home Building
Decision of: S Westgarth, Deputy President; Prof G Walker, Senior Member
Catchwords: Costs – costs to follow the event
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Strata 778 Pty Ltd v Enright [2019] NSWCATAP 106
Consumer and Commercial Division - Commercial
Decision of: T Simon, Principal Member; G Sarginson, Senior Member
Catchwords: COSTS – retail lease – adequacy of reasons – special circumstances – procedural fairness
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McGinn v Shoebridge [2019] NSWCATAP 107
Consumer and Commercial Division - Strata
Decision of: F Corsaro SC, Senior Member; J Kearney, Senior Member
Catchwords: APPEALS – no question of law – leave to appeal refused – no question of principle
STRATA TITLES - claimed irregularities in conduct of strata scheme – meetings – poll vote or secret ballot
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Anderson v The Owners - Strata Plan No. 61034 (No 2) [2019] NSWCATAP 108
Consumer and Commercial Division - Strata
Decision of: Dr R Dubler SC, Senior Member; J McAteer, Senior Member
Catchwords: COSTS – special circumstances – indemnity costs - lump sum costs order
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Reisner v Bridge Housing Limited [2019] NSWCATAP 109
Consumer and Commercial Division - Social Housing
Decision of: S Westgarth, Deputy President; M Harrowell, Principal Member
Catchwords: LEASES AND TENANCIES – Housing Act 2001 – Residential Tenancies Act 2010 – Concurrent Lease – Right of concurrent lessee to enforce residential tenancy agreement in Tribunal proceedings
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News v Cotes and Laptev [2019] NSWCATAP 110
Consumer and Commercial Division - Commercial
Decision of: G K Burton SC, Senior Member; J S Currie, Senior Member
Catchwords: iRetail tenancy - implied terms - adequacy of reasons on term implied that parties reasonably co-operate in performance of the contract - re-determination of those matters - no different conclusion on the evidence
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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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