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| | NCAT Appeal Panel Decisions February 2019 Decisions
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| | The NCAT Appeal Panel Decisions Digest provides monthly keyword summaries of decisions of the NSW Civil and Administrative Tribunal (NCAT) Internal Appeal Panel.
The following decisions were handed down during February 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: - Singh v Fobupo Pty Ltd [2019] NSWCATAP 34, which addressed a number of procedural issues including the Tribunal’s power to make stay orders and the Tribunal’s jurisdiction where there are pending proceedings under ss43(3) and Sch4 cl5(7) of the Civil and Administrative Tribunal Act 2013 (CAT Act) respectively. It also considered the relevance to the Tribunal of the Civil Procedure Act 2005 provisions on set-offs.
- The Sydney Building Company Limited v Sinac [2019] NSWCATAP 4, which considered the distinction between interlocutory and ancillary decisions for the purposes of s80(2) of the CAT Act and interpreted s18E(1)(a) of the Home Building Act 1989.
- Zonnevylle v Department of Justice [2019] NSWCATAP 44, concerning the meaning of ss111 and 112 of the Government Information (Public Access) Act 2009. The Appeal Panel also considered a party’s application under the Court Security Act 2005 to record the proceedings on his own device.
- NSW Land and Housing Corporation v Dungay [2019] NSWCATAP 48, addressing the adequacy of reasons of the first instance decision.
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| Singh v Fobupo Pty Ltd [2019] NSWCATAP 34
Consumer and Commercial Division - Commercial
M Harrowell, Principal Member
The applicant (appellant on appeal) sought an order for interim relief that the respondent be restrained from repossessing the premises the subject of a retail lease between the respondent (lessor) and applicant (lessee). In October 2018, the Tribunal ordered that the respondent be restrained from repossessing the premises on the condition that the applicant pay a specified amount of rent until a final Tribunal decision was made ([3]). In November 2018, the applicant applied to the Tribunal to maintain the injunction in his favour and to vary the terms to relieve him of the obligation to pay rent pending the final resolution of the proceedings ([6]). The Tribunal refused the November application ([7]).
The appellant appealed from the terms of the October restraining order and the refusal of the November application.
The Appeal Panel made directions including an order staying the October restraining order and amending the conditions of the orders to require the rent to be paid to a solicitor for the respondent to be held on trust ([13]). The respondent sought to have the stay lifted and the Appeal Panel’s restraining order set aside on the ground that the appellant had not complied with the conditions ([14]). The appellant asserted that despite not paying the rent, he had not breached the stay order because the respondent did not provide him with a tax invoice as required by the conditions, he had a right to a set-off and the Appeal Panel did not have jurisdiction to deal with the matter as proceedings were before the Supreme Court ([25]).
Held (dismissing the appeal): (i) Section 43(3) of the Civil and Administrative Tribunal Act 2013 (CAT Act) clearly empowers the Appeal Panel to make stay orders in respect of decisions made at first instance pending the resolution of an internal appeal ([22]).
(ii) The condition that required the respondent provide the appellant with a rent invoice was complied with. It was not necessary to determine whether or not there had been any illegal conduct in the issuing of tax invoices contrary to Australian tax legislation for the purposes of the application before the Appeal Panel ([31]-[33]).
(iii) The provisions relating to set-offs in the Civil Procedure Act 2005 do not apply to the Tribunal as it is not a “court” within the meaning of Sch1 of that Act ([41]-[46]). There is no right of set-off at common law or in equity in respect of the imposition of conditions because they do not arise from the Tribunal adjudicating the ultimate rights of the parties and cannot be enforced in and of themselves (in contrast with an order) ([49]-[50]). There is no right to set-off in respect of the conditions attaching to the stay order to relieve the appellant of his obligation to pay rent ([54], [61]).
(iv) Schedule 4 cl5(7) of the CAT Act excludes the Tribunal’s jurisdiction when court proceedings, including in the Supreme Court, are “pending” in relation to the subject matter of the claim proceedings in the Consumer and Commercial Division. The Tribunal’s jurisdiction is not excluded by reason of court proceedings challenging a Division decision, which necessarily must have been commenced subsequent to the Tribunal’s decision ([65]-[68]). Further, Sch4 cl5(7) is inapplicable to internal appeals before the Appeal Panel because it is not a “Division” of the Tribunal and does not exercise a Division function under ss4, 16(1) and 16(4) of the CAT Act ([69]-[71]).
(v) The circumstances in which there might be a federal matter in proceedings before the Tribunal were canvassed in Murphy v Trustees of Catholic Aged Care Sydney [2018] NSWCATAP 275. The appellant’s contention that the invoices were not provided in accordance with Australian tax law and, therefore, there was a federal matter is unfounded. The condition about the invoicing requirements was fulfilled. This does not raise a claim or a defence arising under federal law ([76]-[79]).
Stay lifted and order restraining the respondent from repossessing the premises dissolved because the appellant failed to comply with the stay conditions ([85]).
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| The Sydney Building Company Limited v Sinac [2019] NSWCATAP 43
Consumer and Commercial Division - Home Building
A P Coleman SC, Senior Member; J Lucy, Senior Member
The appellant carried out home building works for the respondent. The respondent claimed that the appellant breached statutory warranties under the Home Building Act 1989 (HB Act) due to allegedly defective work. The Tribunal held that it had jurisdiction to hear the claim (the Jurisdictional Decision). Subsequently, the Tribunal determined the substantive claim in the respondent’s favour (the Substantive Decision).
The appellant raised 10 grounds of appeal. The 3 questions of law were that: the Jurisdictional Decision was erroneous; the Tribunal’s finding about the water ingress was without evidence to support it, or against the weight of evidence; and the Tribunal’s reasons were inadequate.
Held (dismissing appeal): (i) If the Jurisdictional Decision was an interlocutory (rather than an ancillary) decision leave to appeal was required under s80(2) of the CAT Act. The parties agreed that a decision refusing to summarily dismiss an application on an alleged absence of jurisdiction is an interlocutory one, consistent with the statement of Basten JA in AOQ v Minister for Finance and Services (2016) 93 NSWLR 46 so the Tribunal did not need to consider it any further ([13]). As the interlocutory decision is one which affects the final result of the proceedings, the appellant was entitled to appeal from it. As such, no leave is required ([14] citing Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22 at 483). In the event that leave is required, the Appeal Panel would grant it because the application of the limitation period in s18E of the HB Act raises an important question of principle and requires the proper construction of the statutory provisions ([15]).
Section 18E(1)(a) of the HB Act is to be read subject to s3B of that Act. The word “work” in s18E(1)(a) refers to “residential building work”. In the phrase “the completion of the work to which it relates” the word “it” refers to the breach of a statutory warranty and “work” refers to the specific work relating to the claimed breach ([41]-[43]). The effect of the introduction of s3B of the HB Act altered the operation of s18E(1)(a) so that the time for commencing proceedings runs from the date the work to which the claim relates was complete within the meaning of the contract, which may provide for various completion dates for discrete tasks ([48]). The Tribunal’s decision that it had jurisdiction was not erroneous ([53]).
(ii) There was evidence before the Tribunal on which it could make the finding that the water ingress was caused by the appellant’s defective work ([54]).
(iii) Having regard to the principles in Collins v Urban [2014] NSWCATAP 17 and Taylor v Joye [2018] NSWCATAP 309 the Tribunal in this instance fulfilled its obligation to give reasons by setting out and discussing the parties’ evidence, stating its findings and conclusions with sufficient reasons ([59]-[61]).
(iv) Leave to appeal on errors of fact refused ([66]). |
| Zonnevylle v Department of Justice [2019] NSWCATAP 44
Administrative and Equal Opportunity Division - GIPA and Privacy
Hennessy LCM, Deputy President; Cowdroy QC ADCJ, Principal Member
Mr Zonnevylle applied to the Department of Justice (Department) for certain information under the Government Information (Public Access) Act 2009 (GIPA Act). The Department notified Mr Zonnevylle that his application was valid, but after the 5 day statutory notification period. Mr Zonnevylle did not pay a deposit on the total processing charge as requested and so the Department refused to deal further with his application ([1]).
In an interlocutory decision, the Tribunal refused Mr Zonnevylle’s application for summonses requesting that four people produce documents and give evidence ([2]). At the final hearing, the Tribunal upheld the Department’s decision to refuse to deal further with the application in the absence of the payment of the deposit ([3]).
The appellant requested the Tribunal refer what he alleged were “questions of law” to the Supreme Court, rather than determine the appeal ([15]). A number of issues Mr Zonnevylle sought to appeal did not fall within the Appeal Panel’s internal appeal jurisdiction ([16]-[23]).
Held (dismissing appeal): (i) The time for bringing the appeal was extended. It would be unfair to deny Mr Zonnevylle the opportunity to appeal from the summons in the circumstances ([34]-[36]).
(ii) Leave to appeal granted in relation to the question of whether the Tribunal misconstrued ss111 or 112 of the GIPA Act because it involves issues of principle that might have general application ([42]-[43]).
The Tribunal did not misconstrue s111 of the GIPA Act in holding that the power is analogous to that in s112. The Tribunal’s power to inquire into an agency’s conduct only extends to conduct that is connected to the administrative review proceedings ([52]). The Tribunal did not misconstrue s112 of the GIPA Act as having four elements and in holding that the Tribunal does not have power to inquire into the officer’s conduct that is separate from, or additional to, the administrative review proceedings ([49]-[51]). The Tribunal has specific powers under ss111 and 112 of the GIPA Act, but it may not inquire into whether a person may have committed an offence under the GIPA Act or initiate prosecutions ([58]).
(iii) Leave to appeal the Tribunal’s interlocutory decision to refuse to allow Mr Zonnevylle to record the proceedings on his own device not granted ([68]).
(iv) Leave to appeal from the Tribunal’s decision to refuse to recuse herself on the basis of apprehended bias refused as the appellant did not satisfy the test in Ebner v The Official Trustee in Bankruptcy [2000] HCA 63 (Ebner) ([71]-[78]).
A decision that an access application is valid is distinct from the determination of the application. It does not automatically mean that the applicant will be given access to the information sought ([83]). While s51 imposes a limit of 5 working days to inform an applicant whether their application is valid, a decision made after that time is also valid ([83], [85]).
(v) None of the applicant’s questions are questions of law arising in the proceedings. No questions to be referred to the Supreme Court under s54 of the CAT Act ([102]).
(vi) The offence of an individual recording the proceedings on their own device (unless authorised by a judicial officer) under the Court Security Act 2005 applies to NCAT ([104]). Mr Zonnevylle’s application to record the proceedings on his own device refused as there was nothing to suggest that any fundamental principle, such as open justice, would be promoted by allowing his application ([110]).
(vii) No basis exists upon which the Appeal Panel members should disqualify themselves for apprehended bias applying the test in Ebner ([111]).
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| NSW Land and Housing Corporation v Dungay [2019] NSWCATAP 48
Consumer and Commercial Division - Social Housing
L Pearson, Principal Member; D Goldstein, Senior Member
The NSW Land & Housing Corporation (the Landlord) and Ms Dungay (the Tenant) were parties to a residential tenancy agreement from 2014. From 2017, the Tenant requested repairs to the premises and consent orders were made. Subsequently, the Tenant applied to the Tribunal for further orders in relation to repairs and compensation ([2]-[3]). The Tribunal ordered that the Landlord pay the tenant $1,000 as compensation and to undertake certain repairs ([4]).
The appeal was brought on the ground that the Tribunal’s reasons were inadequate ([9]).
Held (dismissing the appeal): The Tribunal’s reasons were adequate ([41]). Section 62(3) of the CAT Act sets out the general requirements for the Tribunal in providing reasons. The content and level of detail required in reasons varies depending on the nature of the decision maker’s jurisdiction and the subject matter of the decision ([37] citing Wainohu v New South Wales (2011) 243 CLR 181). “The administration of justice in this regard requires a pragmatic and functional approach to the obligations imposed upon decision makers at first instance” ([37] citing Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33). The reasons must be adequate to enable a party to exercise an appeal right and include the essential ground(s) on which the decision was reached ([37] citing Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247). The decision maker is required to refer to the relevant evidence that is critical to the decision in his or her reasons, but there is no need to traverse it in detail ([37]).
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| | | Mo v ABC Homes NSW Pty Ltd [2019] NSWCATAP 16
Consumer and Commercial Division - Home Building
Decision of: S Westgarth, Deputy President; J McAteer, Senior Member Catchwords: CONTRACT INTERPRETATION – Fresh evidence on appeal |
| The Owners-Strata Plan No 14593 v Soares [2019] NSWCATAP 35
Consumer and Commercial Division - Strata
Decision of: The Hon F Marks, Principal Member; D Charles, Senior Member Catchwords: STRATA – family interest with majority control of strata scheme – responsibilities, obligations and duties of an owners corporation in respect of common property – variation of orders made at first instance – order for maintenance and repair of common property adjacent to the minority interest’s lots – order for contractor (not connected with majority interest) to clean common property |
| Busic v Tokoragi [2019] NSWCATAP 36
Consumer and Commercial Division - Commercial
Decision of: Hennessy LCM, Deputy President; S Frost, Senior MemberCatchwords: CONTRACTS – guarantee – where corporate lessee went into liquidation owing rent - where a director of the corporation was named as a guarantor in the lease and signed the lease in her capacity as a director – whether signing the lease in that capacity meant that she was a guarantor – meaning of guarantee clauses in standard lease |
| Murphy v Trustees of Catholic Aged Care Sydney [2019] NSWCATAP 37
Consumer and Commercial Division - Residential Villages
Decision of: R Titterton, Principal Member; A Suthers, Senior Member Catchwords: APPEAL – whether the Tribunal erred in interpreting ss120C and 128 of the Retirement Villages Act 1999 (NSW) – no question of law and appeal dismissed – application for leave to appeal dismissed |
| Hamed v Borg [2019] NSWCATAP 38
Consumer and Commercial Division - Home Building
Decision of: G K Burton SC, Senior Member; Dr J Lucy, Senior MemberCatchwords: APPEAL – Home Building – Where parties contracted for construction of granny flat – Where builder installed water tank on pavers - Where tank fell over causing damage – Whether Tribunal’s decision that builder not responsible for collapse of tank was legally unreasonable – Whether decision was against the weight of evidence due to the Tribunal’s failure to give a plumber’s report any weight - Whether Tribunal failed to have regard to relevant considerations or critical evidence when failing to consider plans –Whether appellant should be permitted to raise a new ground of appeal at the hearing |
| DKB v Commissioner of Police NSW Police Force [2019] NSWCATAP 39
Administrative and Equal Opportunity Division - Privacy
Decision of: S Westgarth, Deputy President; J McAteer, Senior Member Catchwords: ADMINISTRATIVE LAW- Privacy – exemption – educative and administrative – exemption by other law – no error of law |
| Kapeller v BH Australia Constructions Pty Ltd [2019] NSWCATAP 40
Consumer and Commercial Division - Home Building
Decision of: S Westgarth, Deputy President; Prof G Walker, Senior Member Catchwords: Appeal – contract – identity of contracting builder – Home Building Act 1989 – error of law |
| Wynne Avenue Property Pty Ltd v MJHQ Pty Ltd [2019] NSWCATAP 41
Consumer and Commercial Division - Commercial
Decision of: The Hon F Marks Principal Member; J McAteer Senior MemberCatchwords: APPEAL-retail lease-demolition notice-held a genuine proposal to demolish under s35 Retail Leases Act 1994 (NSW)-appeal upheld Retail leases-industry practice under s78 Retail Leases Act-held necessary to adduce evidence |
| Bulloch v Linden Building Services Pty Ltd t/as Linden Constructions [2019] NSWCATAP 42
Consumer and Commercial Division - Home Building
Decision of: K Ransome, Senior Member; R Hamilton SC, Senior MemberCatchwords: APPEAL – costs – substantive proceedings settled before hearing – discretion to order costs – whether one party was almost certain to have succeeded if heard |
| Singh v Khan [2019] NSWCATAP 45
Consumer and Commercial Division - Commercial
Decision of: L P Robberds QC, Senior Member; D A C Robertson, Senior MemberCatchwords: COSTS |
| McMillan v Cone [2019] NSWCATAP 46
Consumer and Commercial Division - Motor Vehicles
Decision of: Dr R Dubler SC, Senior Member; K Ransome, Senior MemberCatchwords: APPEAL - failure to afford procedural fairness – appellant not provided with notification of the new date of the hearing |
| D&K Developments Pty Ltd v Tchetchenian [2019] NSWCATAP 47
Consumer and Commercial Division - Home Building
Decision of: M Harrowell, Principal Member; D Fairlie, Senior Member Catchwords: ADMINISTRATIVE LAW – denial of procedural fairness – directions for service of submissions on costs application – no submissions filed – no steps taken to comply with directions or seek an extension of time |
| | 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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