| | NCAT Appeal Panel Decisions Digest Issue 1 of 2020
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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 Appeal Panel decisions were handed down between 18 December 2019 and 29 January 2020. Each case title is hyperlinked to the full decision available on NSW Caselaw.
The latest issue features summaries of recent Appeal Panel decisions, including: - Passas v Comensoli [2019] NSWCATAP 298 – on homosexual vilification contravening s 49ZT of the Anti-Discrimination Act 1977 (NSW)
- The Owners – Strata Plan No 74835 v Pullicin; The Owners – Strata Plan No 80412 v Vickery [2020] NSWCATAP 5 – on whether NCAT has jurisdiction under ss 106 and 232 of the Strata Schemes Management Act 2015 (NSW) to award damages or compensation for breach of the statutory duty to repair and maintain common property
- Parsons v Adams [2019] NSWCATAP 301 – on ascertaining the parties to a home building contract and the scope of the defence to breach of statutory warranty under s 18F of the Home Building Act 1989 (NSW)
- The Owners – Strata Plan No 91157 v Yoolee Holdings Pty Limited; Yoolee Holdings Pty Limited v The Owners – Strata Plan No 91157 [2020] NSWCATAP 6 – on construction of a by-law requiring an owners corporation to consent to certain development applications and the meaning of “harsh, oppressive or unconscionable”
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| Passas v Comensoli [2019] NSWCATAP 298
Administrative and Equal Opportunity Division
Dr R Dubler SC, Senior Member; J McAteer, Senior Member
Facts: On 15 November 2017, the results of the Australian Marriage Law Postal Survey were published, wherein 61% of those surveyed voted “Yes” to the question “Should the law be changed to allow same-sex couples to marry?” (the Yes vote).
In celebration of the Yes vote, the respondent, Mr Comensoli, displayed a large rainbow flag on the balcony of his apartment. The appellant, Ms Passas, who lived in the same building, demanded that the Respondent remove the flag, saying it was “offensive to [her] culture and religion”, and that Mr Comensoli should not have the right to marry “until [he] can breastfeed and have children” ([3], [32]).
Ms Passas was later heard saying to a police officer attending the premises that “the rainbow flag [is] as offensive as the flag of ISIS” ([32]). At the time of the incident, Ms Passas had been a Councillor in Ashfield for approximately 11 years and was Deputy Mayor of the Inner West Council ([11]).
At first instance, the Tribunal found that Ms Passas’s conduct “incite[d] hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on grounds of their homosexuality of a person or member of the group” within the meaning of s 49ZT of the Anti-Discrimination Act 1977 (NSW) (AD Act). Ms Passas was ordered to pay $2,500 to Mr Comensoli as compensation for the harm caused to him, and to publish an apology for her conduct in the Inner West Courier newspaper ([5]).
Ms Passas appealed (her major grounds of appeal are set out in the summary of reasons below).
Held (dismissing the appeal, but varying the order for an “apology” at first instance):
“Lack of evidence to support the respondent being a member of the group allegedly vilified”
(i) Ms Passas claimed that Mr Comensoli had not put forward any evidence that he was, himself, a gay person, and that this was an “essential part” of his application to the Tribunal ([16]).
(ii) In considering this ground of appeal, the Appeal Panel had regard to two provisions of the AD Act – ss 49ZF and 88 ([21]).
(iii) Section 49ZF provides ([22]):
“A reference in this Part to a person’s homosexuality includes a reference to the person’s being thought to be a homosexual person, whether he or she is in fact a homosexual person or not.”
(iv) In circumstances where the Tribunal found, as a matter of fact, that Ms Passas directed her statements to Mr Comensoli because she believed him to be a homosexual person (whether or not that was something she knew for sure), it was irrelevant, pursuant to s 49ZF, whether he was in fact a homosexual person or not ([23]).
(v) Section 88 provides:
“A vilification complaint cannot be made unless each person on whose behalf the complaint is made:
(a) has the characteristic that was the ground for the conduct that constitutes the alleged contravention, or
(b) claims to have that characteristic and there is no sufficient reason to doubt that claim.”
(vi) The Appeal Panel found there was “no doubt that [Mr Comensoli] during the Tribunal hearing claimed to have the characteristic of homosexual orientation”. It was for Ms Passas to demonstrate that there was sufficient reason to doubt this claim and, as she did not put forward any such reason, the “hurdle” to making a vilification complaint provided for by s 88 was “not engaged” ([25]-[27]).
(vii) Accordingly, this ground of appeal was dismissed ([27]).
Whether statements had the “capacity to incite hatred towards, serious contempt for, or serious ridicule of, homosexuals”
(viii) Ms Passas submitted that her words “would not and could not incite, in an ordinary, reasonable person, anger towards, serious contempt for, or severe ridicule of, a homosexual person or group of homosexual persons on the ground of the homosexuality of the person or members of the group”, and were “no more than the expression of contrary opinion” (at [30]-[31]).
(ix) The Tribunal relied on two statements in reaching its decision – first, that the Respondent should remove the rainbow flag because it was “offensive to [the Appellant’s] culture and religion”, and second, that the Respondent should not have the right to marry “until [he] could breastfeed and have children” (at [34]).
(x) The Appeal Panel observed a “difficulty” with the Tribunal’s finding that the first statement was “objectively offensive, expressed to incite or stimulate hostility”. The Appeal Panel referred to the statement in Burns v Sunol [2015] NSWCATAD 62 at [31] that expressions of “disagreement, or indeed […] disgust, with marriage between people of the same sex” do “not reach the threshold inciting hatred or serious contempt for such people on the ground of homosexuality”. Nonetheless, the Appeal Panel accepted that the Tribunal “took into account all of the circumstances of the way in which the statement was expressed and the manner in which it was expressed in coming to its overall conclusion” (at [34]-[41]).
(xi) Conversely, the Appeal Panel found that the second statement “could reasonably be regarded as using derogatory ridicule to belittle homosexual men”. It was reasonably open to the Tribunal to conclude that “[t]he objective understanding of this statement is that a person who can’t breastfeed or have children should not be afforded an equal right to marry the person of their choosing”, and further, to find that “[t]he statement seeks to legitimise serious contempt or severe ridicule of the homosexual men by identifying matters from which they are biologically excluded as a means of justifying their inequality at law” (at [43]).
(xii) Accordingly, this ground of appeal was also dismissed ([44]).
Whether onus of proof reversed
(xiii) Ms Passas submitted that the Tribunal reversed the onus of proof, which should have rested with Mr Comensoli, pointing to the following extract from the first instance decision ([46]):
“The Tribunal finds that, on the balance of probabilities, the Respondent did make the statement attributed to her by the Applicant. The Tribunal therefore accepts the Applicant’s evidence of the statements made by the Respondent to him and heard by him, the Respondent’s conduct towards him and his flatmate Ms Di Natale, and that the Respondent’s statements and conduct were made in the manner expressed by the Applicant and Ms Di Natale.”
(xiv) Ms Passas submitted it was inappropriate for the Tribunal, having found that one statement was made, to then accept in toto the remainder of Mr Comensoli’s evidence regarding his exchanges with her ([47]).
(xv) However, the Appeal Panel found that Ms Passas had focused unduly on this excerpt from the decision. Having regard to the totality of the Tribunal’s reasons, it was clear the Tribunal had been mindful that it was Mr Comensoli’s task to discharge the onus of proof, and further, was satisfied it had been discharged ([50]).
(xvi) The Tribunal accepted Mr Comensoli’s evidence, not merely because it was satisfied about one statement, but because of its view of the credibility of Mr Comensoli and Ms Di Natale (Mr Comensoli’s housemate) as witnesses, over the less credible and less satisfying evidence of Ms Passas (who had a poor recollection of events and was defensive and deflective in response to questioning). Accordingly, this ground of appeal was also dismissed ([49]-[51]).
Whether the statements came within an exception under the AD Act
(xvii) Ms Passas submitted that the Tribunal erred in not finding that the statements came within the exception provided in s 49ZT(2)(c) of the AD Act, namely, that the statements were “a public act, done reasonably and in good faith and in the public interest, including discussion or debate about and expositions on any act or matter” ([52]).
(xviii) However, Ms Passas made no submissions at first instance that this exception applied, although she was legally represented. It was not available to her to try and advance this exception for the first time on appeal ([57]-[58]).
Penalty imposed
(xix) In relation to the penalty imposed by the Tribunal, Ms Passas submitted that the Tribunal had erred in taking into account her role as an elected local councillor and deputy mayor, as well as the fact that the alleged vilification took place on the day of the Yes vote ([58]). She also argued the penalty was “manifestly excessive”, and in particular, that the wording of the apology was flawed and unfair ([100]).
(xx) The Appeal Panel found it was essentially a finding of fact that, viewed objectively, the effect Ms Passas’s conduct was likely to have on its audience was amplified by her position and status. This finding was reasonably open to the Tribunal. In the Appeal Panel’s view, it was not erroneous, but rather made “logical sense”, for the Tribunal to conclude that a person’s position would have an effect on how their remarks are received, and in turn be relevant to the question of penalty and harm caused to the recipient ([66]-[67]).
(xxi) The Tribunal has a wide discretion when it comes to the terms of an apology which it can order. However, the Appeal Panel accepted that the wording of the apology required by the Tribunal included matters of contested evidence, and could be misleading, in that it would require Ms Passas to publicly state that she had engaged in conduct which she continues to deny. Further, the proposition that what she said amounted to “abuse” added a “gloss upon the final determination” which could be regarded as “beyond the role of the Tribunal, which strictly upheld homosexual vilification as opposed to mere abuse” ([109]).
(xxii) Accordingly, the Appeal Panel ordered that the apology be altered, so that, instead of conceding that she “publicly yelled abuse” at Mr Comensoli, Ms Passas would be required to state that ([110]):
“[NCAT] has determined that […] I made statements which are in breach of the homosexual vilification provisions of the [AD Act], which made it unlawful for any person, by a public act, to incite hatred towards, serious contempt for, or serious ridicule of a person or group of persons on the ground of homosexuality. I offer my apologies for that behaviour.”
(xxiii) Otherwise, the Appeal Panel declined to interfere with the monetary penalty imposed, finding $2,500 “remain[ed] a reasonable sum to be awarded on compensation” for the remarks made ([112]).
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| The Owners – Strata Plan No 74835 v Pullicin; The Owners – Strata Plan No 80412 v Vickery [2020] NSWCATAP 5
Consumer and Commercial Division - Community Schemes
Armstrong J, President; Hennessy ADCJ, Deputy President; T Simon, Principal Member
Facts: The Appeal Panel heard two appeals together, dealing with the same question – namely, whether the Tribunal, by virtue of the order-making power in s 232(1)(e), has jurisdiction to order an award of damages under s 106(5) of the Strata Schemes Management Act (SSMA).
Prior to these appeals, there were two conflicting Appeal Panel decisions on this issue. - In The Owners Strata Plan No 30621 v Shum [2018] NSWCATAP 15 (Shum), the Appeal Panel found that the Tribunal did have jurisdiction to award damages under s 106(5).
- In contrast, the Appeal Panel in Shih v The Owners – Strata Plan No 87879 [2019] NSWCATAP 263 (Shih) found that the Tribunal did not have jurisdiction to award damages, but expressed a tentative view that the Tribunal might have jurisdiction to order payment of compensation for the same loss, stemming from its ability to make orders to “settle a complaint or dispute” under s 232(1).
This divergence of opinion prompted the President to convene a three person Appeal Panel, including two judicial members, when the issue next arose, to provide members with guidance on the issue.
In this concurrent hearing, the respondents to both appeals owned apartments which had been affected by ongoing water damage from bad weather events. Both respondents succeeded at first instance in obtaining work orders and money orders, requiring the appellant owners corporations to rectify the damage and pay compensation for lost rent.
Both appeals included grounds challenging the Tribunal’s jurisdiction in respect of the money orders made. Although both appellants put forward other grounds of appeal relating to the money orders, it was not necessary for the Appeal Panel to decide on these once it had dealt with the jurisdiction question. The work orders were not challenged ([4]).
Held (allowing both appeals):
(i) The Appeal Panel found that the Tribunal does not have power to order damages under s 106(5) for failure to comply with the duties in ss 106(1) and (2) of the SSMA.
(ii) That conclusion was based on the following propositions (set out at [8]):
- The Tribunal has the jurisdiction and order making powers imposed or conferred on the Tribunal by the NCAT Act or other legislation.
- The inclusion of s 106(5) in the SSMA has put beyond doubt the existence of a private cause of action in damages for breach of the statutory duty in s 106(1) in a court of competent jurisdiction.
- Subsection 106(5) of the SSMA does not confer or impose any jurisdiction or order making powers on the Tribunal, nor does it confer or impose jurisdiction on the Tribunal to exercise any other functions in connection with the conduct or resolution of proceedings.
- Subsection 232(1)(e) of the SSMA confers jurisdiction on the Tribunal to entertain complaints or disputes between a lot owner and an owners corporation about a failure to perform a “function”, which includes a failure to comply with the duty in s 106(1) to maintain and repair common property.
- The word “about” in s 232(1) relates to the complaint or dispute, not the orders the Tribunal has power to make.
- Subsections 106(3) to (7) govern applications to courts of competent jurisdiction for breach of the statutory duty in s 106(1). Section 232 and relevant provisions of the NCAT Act govern applications to the Tribunal for failure to perform the duty in s 106(1).
- The order making power in s 232 is expressed as being “to make an order to settle a complaint or dispute about” a failure to comply with the duty in s 106(1) to maintain and repair property.
- The words “to settle” do not mean that the Tribunal is restricted to making consent orders under s 232.
- Having decided that s 232 is not confined to consent orders, the literal or grammatical meaning of the words “to settle” is “to resolve”. These are general words that do not, either expressly or impliedly, confer or impose power on the Tribunal to make an order for damages under s 106(5).
- The context, the consequences and the purpose of the legislation do not affect this conclusion.
- The SSMA does not, expressly or impliedly, impose or confer power on the Tribunal to make orders by way of compensation for failure to comply with the duty in s 106(1).
(iii) This Appeal Panel also said that it did not agree with the tentative view expressed by the Appeal Panel in Shih that the Tribunal “might arguably have power to award compensation [if not damages] for past losses by reason of its wide powers to make orders under section 232” (at [69]-[72]).
(iv) It was “not necessary for [this Appeal Panel] to determine comprehensively the scope of the order making power in s 232”, however its view was that “the Tribunal is limited to making orders which it otherwise has power to make under specific or general order making powers in the [SSMA], or the NCAT Act. The word “settle”, like the word “resolve” or “resolution”, does not confer order making powers” (at [73]).
(v) The Appeal Panel noted, as a result of its decision in this matter ([9]):
“There are now three partially inconsistent Appeal Panel decisions about the same issue. None takes precedence. However, the current Appeal Panel is constituted by three members including two presidential members who are judicial officers. We agree with the observation of Bell J in Director of Liquor Licensing v Kordister Pty Ltd [2011] VSC 207 at [107] in relation to the Victorian Civil and Administrative Tribunal, that “... where there is a properly considered decision on point, especially on a legal question and by a presidential member, considerations of consistency and predictability of decision-making and maintaining public confidence in the legal process come into play”.”
Note: This decision is currently under appeal. The appeal lies in the Court of Appeal of NSW. |
| Parsons v Adams [2019] NSWCATAP 301
Consumer and Commercial Division - Home Building
A Britton, Principal Member; G Sarginson, Senior Member
Facts: In 2017, Ms Adams (the respondent homeowner) engaged Mr Parsons (the appellant contractor) to construct a concrete slab upon which to erect an outdoor “alfresco room” or gazebo. Two months after the slab was poured, Ms Adams noticed that parts of it had started to lift, creating a “trip hazard”. Ms Adams obtained expert advice from a structural engineer who advised her that the slab was defective ([1]).
In November 2018, an inspector from the Department of Finance, Services and Innovation issued Mr Parsons a “rectification order” under s 48E of the Home Building Act 1989 (NSW) (HB Act). Mr Parsons did not comply with that order. Ms Adams applied to NCAT seeking compensation for the cost of rectifying the allegedly defective work in the amount of $22,000. The Tribunal ordered Mr Parsons to pay Ms Adams $18,726 for the cost of demolishing and replacing the slab ([2]-[3]).
Mr Parsons appealed. However, neither of the grounds set out in the Notice of Appeal expressly identified a question of law. Based on Mr Parsons’ oral submissions, the Appeal Panel reframed the grounds of appeal as follows ([8]):
- That the Tribunal misapplied the principles which govern the task of ascertaining the parties to a contract, in determining whether Mr Parsons was party to the contract with Ms Adams.
- That the Tribunal failed to consider, or to properly consider, the defence advanced by Mr Parsons, namely that he was not liable for the defective work because he had relied on plans provided by Ms Adams and advice given by her certifier.
Held (dismissing the appeal):
Ground 1: the identity of the parties question
(i) Mr Parsons contended there was no basis for the Tribunal to conclude that he was a party to the contract with Ms Adams. Rather, he argued the parties were Ms Adams and D & J Parsons Pty Ltd (of which Mr Parsons is the director), and that he was not personally liable for the defective work. This argument was not raised at first instance ([10]).
(ii) The quotation given to Ms Adams by Mr Parsons was a partial record of the terms of the contract, but did not expressly state who the parties to the contract were. The quotation recorded the fee and a brief description of the work. The letterhead referred to “D & J Parsons Pty Ltd, trading as Denis the Concreter”, however, the contractor licence number displayed was registered in Mr Parsons’s name. D & J Parsons did not have its own licence ([17]-[18]).
(iii) On one hand, the Appeal Panel reasoned, the reference to the company in the letterhead tended to suggest that the company was the contracting party. On the other hand, the reference to the contractor licence number tended to suggest that the licence holder, Mr Parsons, was the contracting party ([19]).
(iv) Given this ambiguity, it was permissible to have regard to the surrounding circumstances and the subject matter of the contract: Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA; (1982) 149 CLR 337 at 352; Kapeller v BH Australia Constructions Pty Ltd [2019] NSWCATAP 40 at [18].
(v) Particularly significant in this case was the regulatory framework which governed Mr Parsons’ work, and the parties’ understanding of that framework. Section 4 of the HB Act makes it an offence for a person to do residential building work except as or on behalf of an individual, partnership or corporation that holds a contractor licence authorising it to do that work ([20]-[21]).
(vi) In this case, the evidence demonstrated that both parties had a general, if imperfect understanding of the requirement that residential building work be carried out by a licensed contractor. In particular, Ms Adams had asked Mr Parsons, before entering the contract, whether he “had insurance, a contractor’s licence”, which Mr Parsons assured her he did. Mr Parsons never expressly told her that it was his company, not himself, that he believed was contracting to do the work ([17], [22]).
(vii) In the Appeal Panel’s view, “a reasonable observer of the communications which led to the entering of the subject contract, who was aware of the background facts known to the parties, would conclude that the parties intended that the contract would be with whomever was the holder of the contractor licence” ([23]).
Ground 2: the liability question
(viii) While not expressly stated in the Tribunal’s reasons, the Appeal Panel found that a “fair reading” of the first instance decision indicated that the Tribunal found Mr Parsons to have breached the statutory warranties in ss 18B(1)(a) and (f) of the HB Act – being warranties that residential building work “will be done with due care and skill” and “will be reasonably fit for the particular purpose for which the work is required” ([29]).
(ix) Mr Parsons submitted that he was not liable for the defective work done on the slab because he relied on advice given to him by a private certifier, and on plans provided to him by Ms Adams ([25]).
(x) In considering Mr Parsons’ defence, the Tribunal appeared to have taken him as relying on s 18F of the HB Act. That section provides a defence to a contractor licence-holder in proceedings for breach of a statutory warranty where the defendant licence holder can prove that the “deficiencies” in the work arose from either ([30]-[31]):
(a) instructions given by the person for whom the work was contracted to be done contrary to the advice of the defendant or person who did the work, being advice given in writing before the work was done; or
(b) reasonable reliance by the defendant on instructions given by a person who is a relevant professional acting for the person for whom the work was contracted to be done and who is independent of the defendant, being instructions given in writing before the work was done or confirmed in writing after the work was done.
(xi) The Appeal Panel found the Tribunal did not err in finding that neither of the defences in s 18F were available to Mr Parsons ([35]).
(xii) First, the defence in s 18F(1)(a) was not available, because the defective work did not arise from instructions given by Ms Adams. Rather, it was Mr Parsons’ own evidence at the Tribunal that Ms Adams did not provide him with any plans or engineering specifications for the slab, prompting Mr Parsons to contact Spanline (who was contracted with Ms Adams to install the gazebo roof) and the private certifier himself to obtain engineering specifications ([26], [33]).
(xiii) Second, the defence in s 18F(1)(b) was also not available. Even if it was accepted that, as Mr Parsons claimed, the private certifier had inspected the work and given “verbal approval” before the concrete was poured, there was no evidence (nor any suggestion) that the certifier gave those instructions in writing, or confirmed them in writing after the work was done ([34]).
(xiv) In considering whether any other defence might have been available to Mr Parsons, the Appeal Panel cited the view expressed by Howie J, and subsequently cited in a number of Appeal Panel decisions, that the legislative intention behind the HB Act was that the only defence available for contravention of the s 18B warranties would be the defence provided by s 18F: The Craftsmen Restoration and Renovations v Thomas Boland, Thomas Boland v The Craftsmen Restoration and Renovations [2008] NSWSC 660. Although the version of s 18F considered in that case has been subsequently amended, the Appeal Panel here noted that this did not affect the “interrelationship” of that section with s 18B ([37]). |
| The Owners – Strata Plan No 91157 v Yoolee Holdings Pty Limited; Yoolee Holdings Pty Limited v The Owners – Strata Plan No 91157 [2020] NSWCATAP 6
Consumer and Commercial Division - Strata
Cole DCJ, Deputy President; G Curtin SC, Senior Member
Facts: Yoolee Holdings Pty Limited (Yoolee) is the owner of a number of retail and commercial lots in a strata scheme administered by The Owners – Strata Plan No 91157 (the owners corporation), located at Milsons Point ([1]).
Yoolee wanted to develop its lots for use as a private college. Under relevant state and council regulations, Yoolee was required to (a) lodge a development application with North Sydney Council (the Council) for “change of use” and “physical works” affecting its lots and the common property; and (b) obtain the owners corporation’s written consent to that development application. However, the owners corporation refused to give its consent, and indicated an intention to resist the development ([2], [7], [19]-[20]).
Key provisions:
- Regulation 49(1) in the Environmental Planning and Assessment Regulation 2000 (NSW) provides that a development application may be made either “by the owner” or “with the consent in writing of the owner” of the land to which it relates. Under the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), an “owner” includes, for land that is the subject of a strata scheme, the owners corporation for that scheme ([9]-[10]).
- When the Council initially approved the “mixed use development” for the strata scheme, it imposed Condition I8, requiring that a “separate development application for the fitout and use of… non-residential tenancies… be submitted to and approved by Council prior to that fitout or use commencing” ([43]).
- By-law 37.1 was included in the by-laws when the strata plan was first registered, providing ([32]):
“An Owner or Occupier of a Retail Lot or a Commercial Lot may only use the Retail or Commercial Lot for any purpose, and during the hours, approved by a Government Agency. The Owners Corporation must without delay give its consent to the lodgement of an application to a Government Agency (as owner for the purpose of the [EPA] Act) for a particular use, or for specified hours, if requested by an Owner or Occupier of the Retail Lot or Commercial Lot.”
- By-law 8.3 contains various rules about fire safety. It was amended at an Extraordinary General Meeting to impose additional restrictions prohibiting lot-owners from “creat[ing] or permit[ting] any fire safety risk … that… may affect the Building”, and from “allow[ing] anything to be done that… may increase the fire safety requirements applicable to the Building” ([72]).
There were two actions before the Tribunal at first instance and on appeal – the “DA proceedings”, concerning the scope of by-law 37.1, and the “by-law proceedings”, concerning the validity of the amendments to by-law 8.3 ([2]-[5]).
In the DA proceedings, the Tribunal held that by-law 37.1 required the owners corporation to consent to the lodgement of Yoolee’s development application, and made an order directing the owners corporation to do so ([13]-[14]). In the by-law proceedings, the Tribunal found the amendments to by-law 8.3 were “harsh, unconscionable or oppressive” within the meaning of s 139 of the SSMA, and made an order declaring them invalid under s 150 ([75]-[77]).
The owners corporation appealed against both findings, arguing that the Tribunal erred in its construction of by-law 37.1, failed to take into account the considerations mandated in s 232(6) of the SSMA, and failed to apply the correct test as to whether by-law 8.3 was “harsh, unconscionable or oppressive” ([27]-[29], [78]).
Held (allowing the appeal):
The DA proceedings
Scope of by-law 37.1 – whether owners corporation required to consent to Yoolee’s development application
(i) The starting point for interpretation of any by-law is its language, interpreted in its statutory context. In this case, since by-law 37.1 concerns processes provided for by the EPA Act, the Appeal Panel found it reasonable to interpret by-law 37.1 on the basis that it was drafted with an understanding of those processes, and with knowledge of the meaning of words used in that Act ([31], [37]).
(ii) The requirement by-law 37.1 imposes on the owners corporation is imposed in the context of the requirement in Regulation 49(1) that a development application be accompanied by the written consent of “the owner of that land”, and with the knowledge that “owner”, in that context, includes the owners corporation ([38]).
(iii) By-law 37.1, in its terms, refers only to an application for a “particular use, or for specified hours” of a retail or commercial lot. It does not expressly refer to an application for any other kind of development in relation to a retail or commercial lot (such as the carrying out of works), nor does it refer to any kind of development with respect to common property ([40]).
(iv) Condition I8 is an “express acknowledgement that the consent given to the redevelopment of the building” by the Council when the strata scheme was registered “did not include consent for any particular use of the non-residential tenancies within the building, and that the Council would require a development application for the fitout and use of such tenancies” ([44]).
(v) However, the Appeal Panel “reject[ed] the idea that inferences which might be drawn from [C]ondition I8 about the obligations that the Council intended to impose on the individual non-residential lot owners necessarily influences the interpretation of by-law 37.1” ([45]).
(vi) There was “no warrant, and no evidentiary basis” for the Tribunal’s finding that by-law 37.1 should be construed as “advice to the world” that the owners corporation would not “apply its veto power” under Regulation 49, and would not “stand in the way of any application for development consent arising from… Condition I8”. This was certainly not, as the Tribunal found, a “necessary inference” from the existence of Condition I8 ([45]-[46]).
(vii) The Appeal Panel also rejected the finding that by-law 37.1 extends to development applications involving “physical works” in circumstances where “the proposed physical works arise wholly from the proposed use”. Rather, the EPA Act treats the “use of land” and the “carrying out of a work” as separate kinds of development, each of which may require consent under the Act ([47]).
(viii) Plainly, in its terms, by-law 37.1 relates only to the “use” of the retail and commercial lots, and does not relate to any physical works, including any “fitout” ([48], [50]).
(ix) There is no indication that by-law 37.1 was intended to deal with proposals for physical works, change of “use” of common property, or change of the mix of uses in the building, and no basis on which to infer that it deals with those things in the absence of express reference to them ([52]).
(x) The Appeal Panel rejected the argument that by-law 37.1 “should be construed beneficially with respect to [Yoolee]”, as the by-laws are “not remedial legislation”, they are not ambiguous, and the “meaning argued for by Yoolee would strain the language of by-law 37.1” ([49]).
“Collateral question” of whether consent required under Regulation 49(1)
(xi) Yoolee also argued that it did not require the owners corporation’s consent as a precondition to lodging the development application because the development “related to works wholly within the boundaries of the lot property” ([54]).
(xii) The Appeal Panel found it could not determine this question as a “collateral issue” in the appeal, because ([58]):
- At the time of the appeal, there was no relevant administrative decision by the Council which could be the subject of a collateral challenge ([59]).
- Yoolee was not seeking to attack the validity of Regulation 49(1), but rather arguing for a particular interpretation of it, with a view to imposing that interpretation on the Council in the future (i.e. at the time of lodgement). Such a question of interpretation is not encompassed within the category of issues which can be decided by way of a collateral challenge ([60]-[61]).
- The question calls for an answer that would be “advisory” to the Council, who was not a party in the proceedings and had not been heard ([62]).
- Given the basis of Yoolee’s initial application to the Tribunal was that it needed the owners corporation’s consent, acceptance of Yoolee’s current argument would render the application “otiose” ([63]).
Whether Tribunal failed to take into account considerations mandated by s 232(6), SSMA
(xiii) Section 232(6) of the SSMA requires that, in determining whether to make an order in disputes about consent to development applications, the Tribunal must consider the interests of all lot owners in a strata scheme ([66]).
(xiv) In this case, the Tribunal did not take these considerations into account because, on its interpretation of by-law 37.1, the owners corporation had no discretion as to whether or not to give its consent, and therefore the considerations did not arise. On the Appeal Panel’s view of by-law 37.1, however, the considerations did arise, and had to be taken into account ([67]-[68]).
(xv) Accordingly, the Appeal Panel set aside the order directing the owners corporation to consent to Yoolee’s development application, and remitted the matter to the Consumer and Commercial Division for reconsideration ([69]).
The by-law proceedings
Whether additional fire safety requirements in by-law 8.3 “harsh, unconscionable or oppressive”
(xvi) The Appeal Panel disagreed with the Tribunal’s characterisation of the term “unconscionable” as simply meaning “unreasonably excessive”. Rather, a by-law may be “unconscionable” if it is “contrary to conscience, in the sense of being unethical or unjust” ([81]).
(xvii) The Appeal Panel accepted that a by-law which discriminates against a minority group of lot owners may be “oppressive”, but noted the meaning in the context of the SSMA is not confined to such circumstances. The definition set out at first instance is applicable – that is, an “oppressive” by-law is one that is “burdensome”, “tyrannical”, “creat[ing] greater burdens than are necessary to achieve the apparent purpose”, and “more extreme than is reasonably required” ([75], [82]-[83]).
(xviii) The Appeal Panel found the Tribunal misdirected itself by considering whether the amendments to by-law 8.3 were harsh, unconscionable or oppressive “only in the context of the making of a development application” ([76], [84]).
(xix) This led the Tribunal to take into account irrelevant considerations (such as whether there would be a greater fire risk associated with a development application for a restaurant than for an office), and failing to take into account relevant considerations ([86]).
(xx) Although the Tribunal considered the meaning of “harsh, unconscionable or oppressive”, it failed to consider adequately whether the amended by-law could be described by any of those words ([84]).
(xxi) Accordingly, the Appeal Panel set aside the order invalidating by-law 8.3 and remitted the question to the Consumer and Commercial Division for reconsideration “having regard to this decision” ([84]). |
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| | | | Administrative and Equal Opportunity Division
Decision of: Dr R Dubler SC, Senior Member; J McAteer, Senior Member
Catchwords: HUMAN RIGHTS – Discrimination – Homosexual Vilification – Whether public statements relating to same sex marriage amount to homosexual vilification
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| Consumer and Commercial Division - Residential Communities
Decision of: Dr R Dubler SC, Senior Member; L Wilson, Senior Member
Catchwords: APPEALS – residential parks – electricity charges – recovery of amounts paid by homeowners for electricity that exceeded the amount the operator was permitted to charge – proper construction of s.77 of the Residential (Land Lease) Communities Act 2013 (NSW)
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| Decision of: A Suthers, Principal Member
Catchwords: APPEAL – stay – stay of the orders of the Tribunal the subject of the appeal
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| Decision of: A Britton, Principal Member; G Sarginson, Senior Member
Catchwords: BUILDING AND CONSTRUCTION — liability of contractor for breach of statutory warranty under s 18B of the Home Building Act 1989 (NSW) — scope of s 18F defence to a contravention of a statutory warranty under s 18B of the Home Building Act CONTRACT — ascertaining parties to contract
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| Administrative and Equal Opportunity Division
Decision of: K Ransome, Senior Member; G Sarginson, Senior Member
Catchwords: APPEAL – whether leave should be given to appeal two interlocutory decisions – no issue of principle
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| Consumer and Commercial Division - Home Building
Decision of: AR Boxall, Senior Member
Catchwords: Appeal – application for costs – applicable principles in appeals from decisions of the Consumer and Commercial Division – costs order made.
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| Decision of: S Westgarth, Deputy President
Catchwords: COSTS — whether special circumstances warranting an award of costs are established
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| | Decision of: D Charles, Senior Member; A Boxall, Senior Member
Catchwords: APPEAL – home building – claim for variations on quantum meruit basis – leave to appeal refused – no error of law – leave to appeal declined
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| Decision of: T Simon, Principal Member; A Boxall, Senior Member
Catchwords: APPEAL – Residential tenancy, social housing, termination, discretion, s91, 154D, unlawful use of the premises
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| Decision of: K Rosser, Principal Member; P Molony, Senior Member
Catchwords: APPEAL – Whether respondent correctly named – whether question of law – leave to appeal
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| Decision of: S Westgarth, Deputy President; P H Molony, Senior Member
Catchwords: LANDLORD AND TENANT – residential tenancy agreement – agreement to reduce rent – appeal on a question of law
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| Consumer and Commercial Division - Strata
Decision of: Armstrong J, President; Hennessy ADCJ, Deputy President; T Simon, Principal Member
Catchwords: STRATA TITLE – appeal from order of Tribunal awarding damages for breach of statutory duty – whether s 232 of the Strata Schemes Management Act 2015 confers order making power on the Tribunal to order damages under s 106(5) STATUTORY INTERPRETATION – meaning of phrase “make an order to settle a complaint or dispute about any of the following” in s 232 of the Strata Schemes Management Act 2015
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| Decision of: Cole DCJ, Deputy President; G Curtin SC, Senior Member
Catchwords: LAND LAW – Strata title – Owners corporation – By-laws
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| Occupational Division
Decision of: Dr R Dubler SC, Senior Member; Dr J Lucy, Senior Member
Catchwords: APPEAL – Civil and Administrative Tribunal (NSW) – Home Building – Review of decision to refuse application for contractor licence – Whether Tribunal denied appellant procedural fairness – Whether Tribunal biased – Whether Tribunal had regard to an irrelevant consideration – Whether the Tribunal’s decision was legally unreasonable
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| Decision of: A Suthers, Principal Member
Catchwords: PRACTICE AND PROCEDURE – bias – whether appeal hearing should be dispensed with and appeal determined 'on the papers' without an oral hearing PRACTICE AND PROCEDURE – allegation of bias – application for recusal of member conducting call-over
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| Consumer and Commercial Division - Home Building
Decision of: S Westgarth, Deputy President; P H Molony, Senior Member
Catchwords: CONTRACTS — Construction and interpretation — Parol evidence rule — evidence of subsequent conduct inadmissible in the interpretation of a contract wholly in writing — Termination — Breach of term — Remedies — Damages — After repudiation – Quantum Meruit – Contract price providing a ceiling on amount recoverable
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| Consumer and Commercial Division - Strata
Decision of: L Pearson, Principal Member; J McAteer, Senior Member
Catchwords: APPEAL – costs – transfer of proceedings to Local Court – whether Tribunal erred in exercise of costs discretion
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| Consumer and Commercial Division - Commercial
Decision of: M Harrowell, Principal Member; D Robertson, Senior Member
Catchwords: LEASES AND TENANCIES – Retail Leases Act 1994 (NSW) – whether a retail tenancy existed over premises – director of tenant remaining in possession to knowledge of landlord after deregistration of tenant – oral agreement for tenancy – whether tenant entitled to withhold rent unless provided with a tax invoice – no condition in tenancy agreement permitting tenant to withhold rent – claim for damages by tenant following termination
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| Consumer and Commercial Division - Residential Communities
Decision of: S Westgarth, Deputy President; D Robertson, Senior Member
Catchwords: LEASES AND TENANCIES – Residential (Land Lease) Communities Act 2013 (NSW) – jurisdiction of Tribunal – agreement between park operator and resident satisfied the definition of site agreement in s 4 of the Act – extension of time for bringing of objection to increase in site fees – s 41 of the Civil and Administrative Tribunal Act 2014 (NSW) permits the Tribunal to extend the time for bringing an objection to an increase in site fees.
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| Guardianship Division
Decision of: A D Suthers, Principal Member; C Fougere, Principal Member; M E Bolt, General Member
Catchwords: APPEALS – appeal against multiple decisions of the Guardianship Division – Appellant deceased – order dispensing with a hearing – application for leave to appeal out of time
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| Consumer and Commercial Division - Strata
Decision of: S Westgarth, Deputy President; G Sarginson, Senior Member
Catchwords: Costs – costs on appeal – special circumstances
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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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