| | | | | NCAT Appeal Panel Decisions Digest Issue 1 of 2021
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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.
This issue features summaries of the following Appeal Panel decisions handed down in December 2020 and January 2021: - Liu v Van Rhoon [2020] NSWCATAP 287 – in which the Appeal Panel dismissed an appeal by a landlord against a decision made in the Consumer and Commercial Division to dismiss his application for termination of a fixed term residential tenancy agreement. The application was dismissed as the tenant had already vacated the premises, thereby terminating the lease.
- ZPP v ZPO [2020] NSWCATAP 288 – in which the Appeal Panel dismissed the appeal of ZPP against a decision of the Guardianship Division, which removed him from office as an attorney for his father, ZPO, leaving in place ZPO’s eldest son and ZPO’s daughter-in-law as attorneys for ZPO. ZPP alleged in his appeal that there had been a denial of procedural fairness by the Tribunal’s refusal to grant ZPP’s request to adjourn the hearing, and by the limitations placed on the participation of ZPP’s McKenzie friend, due to the COVID-19 pandemic.
- Macey’s Group Pty Ltd v Owners – Strata Plan No 33591 [2021] NSWCATAP 7 – in which the Appeal Panel allowed the appeal of Macey’s Group Pty Ltd, the owner of a lot in a strata scheme, which had the benefit of two special by-laws relating to common property that the respondent owners corporation sought to repeal.
- Anagnostou v Leo [2020] NSWCATAP 272 – in which the Appeal Panel allowed the appeal of a landlord whose application had been dismissed by the Tribunal because she was residing in Victoria at the time the application was filed. The Tribunal said the landlord sought to “invoke federal jurisdiction of the kind referred to in ss 75 and 76 of the Commonwealth Constitution”. However the Appeal Panel found the Tribunal was in error in finding the appellant was a resident of Victoria, when she lived there temporarily for work, and remained over the course of the COVID-19 pandemic.
- Baas v JB Hi Fi Group Pty Ltd and Apple Pty Ltd [2021] NSWCATAP 10 – in which the Appeal Panel allowed the appeal of Mr Greg Baas, who purchased a MacBook Air laptop from the first respondent, and sought to reject the product under the Australian Consumer Law (NSW) due to various defects. The Appeal Panel found the Tribunal had not given sufficient reasoning for its finding that the rejection period ended two years after the date of purchase.
In addition to matters from the Appeal Panel, this edition contains cases decided in the Tribunal’s enforcement jurisdiction:
- Fontainas v Gennacker Pty Ltd t/as Homestead Holiday Flats [2021] NSWCATEN 1 – in which the Tribunal in its enforcement jurisdiction made an order referring the matter to the Supreme Court for consideration of whether the respondent had committed contempt of the Tribunal, by its failure to comply with orders made by the Tribunal in June 2019.
- Dodge v Hacienda Caravan Park Pty Ltd [2021] NSWCATEN 2 – in which the Tribunal in its enforcement jurisdiction made an order referring the matter to the Supreme Court for consideration of whether the respondent committed contempt of the Tribunal by its failure to comply with orders made by the Tribunal in January 2018.
Each case title is hyperlinked to the full decision available on NSW Caselaw. |
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| S Thode, Senior Member; M Gracie, Senior Member
In sum: The Appeal Panel dismissed an appeal by a landlord against a decision made in the Consumer and Commercial Division to dismiss his application for termination of a fixed term residential tenancy agreement. The application was dismissed as the tenant had already vacated the premises, thereby terminating the lease.
Facts: In September 2019, Mr William Liu (Mr Liu) and Ms Kerry van Rhoon (Ms van Rhoon) entered into a fixed term residential tenancy agreement as landlord and tenant, respectively. Mr Liu, the landlord appellant, served a written notice of termination under the Residential Tenancies Act 2010 (NSW) (RT Act) in January 2020 requiring the tenant to give vacant possession of the premises on 30 April 2020 ([4]).
On or about 15 April Ms van Rhoon was notified by email of the lease expiry date of 30 April, and informed that “the landlord will allow you to overstay for 21 days to 21 May 2020,” with the possibility of reduced rent. Mr Liu applied to the Tribunal on 8 May 2020 seeking a termination order at the end of the fixed term, pursuant to s 84 of the RT Act, which stipulates the conditions for a termination notice ([4]-[6]).
The tenant vacated the premises on or about 8 October 2020, due to the landlord, a developer, destroying the premises using heavy machinery whilst the tenant was in occupation, until the premises were rendered uninhabitable and became dangerous for the tenant to occupy ([23]).
Held (dismissing the appeal):
(i) The appellant’s submission that the Tribunal made an error of law in finding that the 15 April email converted the fixed term agreement into a periodic agreement, was successful. The notice of termination served pursuant to s 84 of the RT Act was valid: the landlord had served the notice at a time before the end of the fixed term; the notice specified a termination date on or after the fixed term, being 30 April 2020, and this being a date not earlier than 30 days after the date on which the notice was given, on 30 January 2020 ([17], [27], [30]).
(ii) The Tribunal has a duty to terminate a residential tenancy agreement if the necessary conditions under s 84 for termination are met. The words “the Tribunal must” can be contrasted with other provisions in Pt 5 of the RT Act, which confer a discretion on the Tribunal to terminate a residential tenancy agreement on particular grounds, by the words “the Tribunal may” ([31]).
(iii) Neither party advanced an argument that the parties had entered into a new periodic agreement, or that the notice of termination was invalid. The Tribunal had no discretion to refuse the making of a termination order, and it was not open to the Tribunal, on the facts presented by the parties, to find that a new residential tenancy agreement had been created. The fact that the parties agreed to extend the end of the fixed term does not itself render the s 84 notice of termination invalid, and the parties may extend any date for termination for up to 30 days after the end of the fixed term. There is no evidence to support a finding that a periodic agreement had been created, and an error of law is established ([32]-[34]).
(iv) As the tenancy agreement had already terminated, the Appeal Panel could no longer make orders for the termination of the tenancy, this issue now being irrelevant ([35]).
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| C P Fougere, Principal Member; J Kearney, Senior Member; F Given, General Member
In sum: The Appeal Panel dismissed the appeal of ZPP against a decision of the Guardianship Division, which removed him from office as an attorney for his father, ZPO, leaving in place ZPO’s eldest son and ZPO’s daughter-in-law as attorneys for ZPO. ZPP alleged in his appeal that there had been a denial of procedural fairness by the Tribunal’s refusal to grant ZPP’s request to adjourn the hearing, and by the limitations placed on the participation of ZPP’s McKenzie friend, due to the COVID-19 pandemic.
Facts: In December 2010 ZPO appointed his eldest son, his daughter-in-law and the appellant as his attorneys, pursuant to an enduring power of attorney. ZPO also appointed other family members as enduring guardians ([6]).
The appellant’s application to review the appointments was initially dismissed, but following a hearing in March 2020 the Guardianship Division removed ZPP from office as an attorney. The appellant appealed, alleging: the Tribunal denied him procedural fairness by refusing to adjourn the March 2020 hearing and placing limitations on the participation of his McKenzie friend; the Tribunal was in error when it decided not to review the making of the enduring power of attorney because it should have accepted the appellant’s evidence at the hearing that it was a fraudulent document; and the Tribunal did not have all the documents provided by the parties printed in front of them at the hearing ([8]-[11], [15], [20]).
Held (dismissing the appeal):
(i) The Tribunal was obliged to comply with the rules of natural justice, as per s 38(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), one aspect of which is conducting the hearing in a procedurally fair manner. Further, the Tribunal was required by s 38(5)(c) to “…take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard, or otherwise have their submissions considered, in the proceedings. Failure to grant a reasonable request for an adjournment can constitute procedural unfairness. However the Tribunal was under no obligation to ensure that the appellant took “the best advantage of the opportunity to which he is entitled”: Sullivan v Department of Transport (1978) 20 ALR 323 at [343] ([31], [35], [43]).
(ii) The appellant did, in fact, have a McKenzie friend to support him at the hearing, as well as a substitute McKenzie friend to support him when the first McKenzie friend became unavailable. The circumstances in which the proceedings were conducted, namely by telephone, were necessitated by the COVID-19 pandemic. The fact that the McKenzie friend was unable to provide support to the appellant in person, but had to do so by telephone, was outside the Tribunal’s control. The Tribunal also noted that whilst it is preferable for parties to attend hearings in person, it is not unusual for hearings to be conducted by telephone ([45]).
(iii) Regarding the appellant’s allegation that the enduring power of attorney is a fraudulent document, and that the Tribunal failed to give sufficient weight to the appellant’s evidence in this regard, the Appeal Panel found that other than the appellant’s assertion, there was no evidence presented to support this submission. A party seeking to adduce fresh evidence in an appeal may only do so with the leave of the Appeal Panel. As the appellant did not seek leave, the Tribunal was not able to consider the evidence the appellant later sought to submit ([47]-[52]).
(iv) The appellant also submitted that the Tribunal did not have the relevant material before it on the day of the hearing; however the appellant did not provide a sound recording or transcript in support of this submission. The Appeal Panel concluded that there was no question or principle or policy raised, or manifest error in the decision or decision-making process in this respect, which merits a grant of leave to appeal ([56]-[59]).
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| M Harrowell, Deputy President; J Kearney, Senior Member
In sum: The Appeal Panel allowed the appeal of Macey’s Group Pty Ltd, the owner of a lot in a strata scheme, which had the benefit of two special by-laws relating to common property that the respondent owners corporation sought to repeal.
Facts: The respondent (the Owners Corporation) sought to rescind two special by-laws in the strata scheme it managed that benefited the respondent, Macey’s Group Pty Ltd (Macey’s), as the owner of Lot 40. Special By-Law 8 granted Lot 40 the use of “24 car and/or trailer parking spaces”, and Special By-Law 11 permitted the owner of Lot 40 to operate on that lot and upon designated common property “such lawful business activities as may be permitted by the local council”. Macey’s also owns a marina business, operated on adjoining land owned by the Crown, for which it holds a lease originally entered into by the appellant’s predecessor in title ([2]-[4]).
The Owners Corporation sought Macey’s consent for the rescindment of Special By-Law 8, and mediation was conducted pursuant to Pt 12 Div 2 of Strata Schemes Management Act 2015 (NSW) (SSMA). Item 2 of an agreement dated May 2018 related to a purported agreement by which the appellant is said to have agreed to an extraordinary general meeting being held to rescind Special By-Law 8, on condition that a “special commercial lease agreement” would be entered into between Macey’s and the Owners Corporation. A special resolution was passed to rescind Special By-Law 8 at an extraordinary general meeting, and in the same motion the Owners Corporation entered into a commercial lease agreement that granted Macey’s access to the 24 parking spaces, in exchange for weekly contributions. However, as recorded in the meeting minutes, Macey’s did not consent to these arrangements, and until the consent form was signed the Owners Corporation could not register the change ([7]-[9]).
The Owners Corporation applied to the Tribunal for an order under s 230(1) of the SSMA, to give effect to the alleged agreement arising out of the mediation session. During the hearing, the Owners Corporation was permitted to amend its claim to also seek an order under s 149(1)(b) of the SSMA, which permits the Tribunal to make an order prescribing a change to a by-law, including its repeal, where an owner of a lot has “unreasonably refused to consent to the terms of […] the proposed amendment or repeal of a common property rights by-law”. The Tribunal found the mediation agreement was void for uncertainty, in relation to the s 230 application (a finding challenged by neither party on appeal). However, the Tribunal made an order under s 149 repealing Special By-Law 8, on condition of the grant of the registered lease to Macey’s ([14]-[15], [24]).
Held (allowing the appeal):
(i) When altering or rescinding a by-law, the Tribunal is required to balance the rights and reasonable expectations of the beneficiary of the by-law and the competing interests of all lot owners, to determine whether the relevant refusal was unreasonable. Reasonableness must be assessed by reference to circumstances known prior to the passing of the relevant resolution. Whether consent is unreasonably withheld needs to be determined in the context of what, if any, compensation is being offered to the party losing the special rights, and the reasonable expectations that party may have concerning the enforceability of such compensation ([54]-[55]).
(ii) Although the issue was not raised on appeal, it is noted that the Tribunal, in analysing the nature of the appellant’s alleged consent at mediation, had regard to the appellant failing to call evidence of what occurred at the mediation. This is contrary to s 223(1) of the SSMA, which makes “evidence of anything said or of any admission made in a mediation session” inadmissible in Tribunal proceedings, unless consent is provided under s 223(3) ([58]-[59]).
(iii) It was not open to the Tribunal to conclude consent had been unreasonably refused, as, in finding “implied written consent” to the repeal of Special By-Law 8, the Tribunal then had no authority to make an order under s 149(1)(b), as there had been no refusal. Further, the Appeal Panel did not accept that there was “implied written consent”. After finding the mediation agreement to be void for uncertainty, any consent, express or implied, to repeal the by-law could have no continuing operation, as the consideration for the appellant’s consent to repeal Special By-Law 8 failed. To construe the consent differently is to make good an unenforceable agreement by way of rectification, or to impose on the parties an arrangement to which they have not agreed ([65]-[67]).
(iv) In ordering the repeal of the parking by-law, the Tribunal sought to impose on the parties, under s 58, a requirement that they enter a lease on terms which the Tribunal thought appropriate. However the appellant could not be said to have unreasonably refused to consent on the basis it should accept a lease:
a. On terms different to those contained in the mediation agreement;
b. Which had not been offered, let alone approved, by the Owners Corporation; and
c. About which it had no knowledge at the time the resolution to repeal Special By-Law 8 was passed ([61]-[62], [68]).
(v) The Appeal Panel does not agree with the Tribunal’s finding that Special By-Law 8 is for the commercial benefit of the marina, a business outside the scheme on Crown land. The right is attached to Lot 40, and survives whether or not the owner of Lot 40 operates the marina business ([70]-[72]).
(vi) The lease proposed by the Tribunal is itself void for uncertainty. The period of the proposed lease was “a term coincident with the duration (including any exercise of option, renewal or new grant) of the Crown lease to the respondent in respect of the jetty, wharf, boat ramp and surrounding area adjacent to the scheme”. The Crown lease is for a term of 20 years, and continues until 2027 with no option to renew. The grant of any new lease, which might be made by the Crown, is for a presently indeterminate period. Consequently, the period of the lease proposed by the Tribunal is uncertain and the condition is, in any event, incapable of compliance. Such a lease is not a substitute for the rights conferred by Special By-Law 8, which benefits the owner of Lot 40 indefinitely, unless it is repealed, whereas a lease can only be for a definite period of time ([73]-[74]).
(vii) The Tribunal was required to consider the interests of all owners in the use and enjoyment of their lots and common property, and the rights and reasonable expectations of the appellant. The other lot owners would not be benefited by the repeal of the parking by-law, as the appellant would be granted exclusive possession by the proposed lease ([77]).
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| S Westgarth, Deputy President
In sum: The Appeal Panel allowed the appeal of a landlord whose application had been dismissed by the Tribunal because she was residing in Victoria at the time the application was filed. The Tribunal said the landlord sought to “invoke federal jurisdiction of the kind referred to in ss 75 and 76 of the Commonwealth Constitution”. However the Appeal Panel found the Tribunal was in error in finding the appellant was a resident of Victoria, when she lived there temporarily for work, and remained over the course of the COVID-19 pandemic.
Facts: The appellant landlord lodged an application under the Residential Tenancies Act 2010 (NSW) at the Tribunal. The appellant had moved to Victoria temporarily for work, but continued to reside there despite losing her job due to the COVID-19 pandemic. The Tribunal decided that it did not have jurisdiction over the matter because it concerned two persons “living in different States”. The landlord appealed ([1]-[2]).
Held (allowing the appeal):
(i) While it is established in Burns v Corbett [2018] HCA 15 and Attorney General of NSW v Gatsby [2010] NSWCA 254 that the Tribunal does not have power to determine disputes between residents of different States of the Commonwealth of Australia, these cases do not deal with what the expression “residents of different States” means ([9]-[12]).
(ii) Based on various jurisprudence, Leeming J stated extrajudicially that a resident is a person who resides permanently in a State. In Australasian Temperance & General Mutual Life Assurance Society v Howe (1922) 31 CLR 290, “resident” was taken to be a noun substantive, and as such retained its original literal meaning, as opposed to the adjectival form which is often extended. In this context, the word refers to a person who resides permanently in a place. Isaacs J, dissenting, agreed that residence in this context involves determining the person’s “State membership”, involving the identification with one State to the exclusion from similar identification with any other State. Similarly in R v Oregan; Ex Parte Oregan (1957) 97 CLR 323, it was found that a person was a resident of Victoria because she had made her home there, obtained employment there, and formed the intention to reside there permanently ([12]-[16]).
(iii) There was uncontested evidence by the appellant that she moved to Victoria temporarily and intended to return to NSW in late 2020, having lived and worked in NSW for more than 30 years. This evidence did not establish that the appellant had a permanent place of residence in Victoria, but rather that she was a permanent resident of NSW ([18]).
(iv) The decision of the Tribunal was in error in determining that the Tribunal had no jurisdiction because the appellant “was still residing in Victoria” at the time the application was filed, and because it concerned two persons “living in different States”. The permanent place of residence of both parties was NSW. The appeal was upheld ([19]-[20]).
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| A Suthers, Principal Member; S Thode, Senior Member
In sum: The Appeal Panel allowed the appeal of Mr Greg Baas (Mr Baas), who purchased a MacBook Air laptop from the first respondent, and sought to reject the product under the Australian Consumer Law (NSW) (ACL) due to various defects. The Appeal Panel found the Tribunal had not given sufficient reasoning for its finding that the rejection period ended two years after the date of purchase.
Facts: The appellant, Mr Baas, purchased a MacBook Air laptop from the respondent, JB Hi Fi Group Pty Ltd (JB) in December 2015 for $1,375, with a contractual warranty by the manufacturer for two years. By early 2019 the appellant experienced issues with the trackpad and the screen “freezing”. JB referred the appellant to the manufacturer, Apple Pty Ltd (Apple), the second respondent, who completed some repair work, but this did not remedy the problems. The appellant sought further repairs from JB and Apple, and in January 2020 he received final confirmation that Apple would not conduct further unpaid repairs, as the laptop was out of warranty ([1]-[2], [4]).
The appellant brought proceedings in the Consumer and Commercial Division, seeking a replacement laptop, minor damages and costs. In June 2020 the Tribunal ordered JB to repair the laptop, Apple to pay the applicant $70 compensation for travel expenses, and each party to pay their own costs. The Tribunal found that the laptop lacked the necessary element of durability, to the extent that it constituted a “major failure” under the ACL. The Tribunal rejected the applicant’s claim for refund or replacement of the laptop, as the rejection period, as defined in the ACL, had passed by the time the appellant says he sought to exercise a right of rejection ([6]-[7]).
Held (allowing the appeal):
(i) The relevant conditions for the application of the ACL are met, i.e.: the appellant was a consumer who acquired the laptop for less than the relevant prescribed monetary amount; JB was a supplier; Apple was a manufacturer; the claim was for the supply of goods in NSW and was brought within time. As such, there is a guarantee under s 54 of the ACL that the goods supplied were of acceptable quality. As the guarantee was not met, the appellant had a qualified right under s 259 to reject the goods and demand a refund, but only within the “rejection period”, and if the exceptions to the consumer’s right to reject the goods do not apply. Sections 272-273 allow the consumer to seek damages from the manufacturer, where the goods are not of acceptable quality ([20]-[21]).
(ii) Not every fault or combination of faults which represents a breach of the guarantee of acceptable quality constitutes a major failure under s 260(a) of the ACL. The test is objective. Relevant considerations include the availability and cost of repairs relative to purchase price and the nature of the fault(s). The test in s 260(a) is whether a reasonable consumer, with knowledge of the faults and what would be needed in terms of time, costs and degree of difficulty to fix them, would have bought the goods or made a different decision ([28]).
(iii) The rejection period is not a fixed term by the ACL, but is rather established by a definition and matters to be taken into account. Suppliers, such as JB, and manufacturers, such as Apple, have set out a time limit that they consider to be reasonable, being two years, but that limit does not bind the Tribunal. There is an evaluative and discretionary aspect to the determination of the rejection period, in that the Tribunal must weigh the various mandatory considerations in s 262(2) in order to reach a conclusion as to the proper assessment of the rejection period in each particular case ([45], [50]).
(iv) Failure by the Tribunal to expose its reasons for the way it applied the factors relevant to its considerations is an error on a question of law. The Tribunal did not give sufficient reasoning for its finding that the rejection period expired after two years. The appellant submitted that the latent defects in the laptop, which the Tribunal accepted constituted a major failure, did not become fully apparent until January 2019. The Tribunal did not give sufficient reasons for finding that it would be reasonable to expect such defects to become apparent at an earlier date. The Appeal Panel remitted the matter to a differently constituted Tribunal to determine whether the appellant rejected the laptop, whether the rejection period had expired at that time, and what orders should be made as a consequence of those findings ([51], [56]-[58], [61], [70]).
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| Enforcement (Penalties and Contempt)
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In sum: The Tribunal in its enforcement jurisdiction made an order referring the matter to the Supreme Court for consideration of whether the respondent had committed contempt of the Tribunal, by its failure to comply with orders made by the Tribunal in June 2019.
Facts: In June 2019 the Tribunal ordered, in Order 1, the respondent, Gennacker Pty Ltd t/a Homestead Holiday Flats (Gennacker), to provide the applicant, Mr Jacques Fontainas (Mr Fontainas), with a signed standard form site agreement. The respondent has since failed to do so, supplying only a “sample agreement,” which it would only enter into subject to designated pre-conditions also being satisfied, and subject to the applicant agreeing to all of the thirty eight additional terms ([3], [37], [40]).
Held (referring to the Supreme Court):
(i) By failing to provide a signed agreement of any kind to the applicant, and providing only a “sample agreement” with extensive additional terms, the respondent prima facie breached Order 1. Further, the respondent’s assertion that it would not provide any form of site agreement without compliance with its stated pre-conditions does not constitute compliance with Order 1 ([40]).
(ii) The respondent continued to attempt to establish in its pre-conditions to the “sample agreement” matters which were the subject of argument in proceedings before the Tribunal, contrary to the findings of the Tribunal ([42]).
(iii) The respondent bears the onus of demonstrating that there was a reasonable excuse for its failure to comply with Order 1. However the respondent merely made assertions, regarding statutory and other breaches applying to the site and its structures, that would have been more appropriately made before the Tribunal in the first instance, and which were not corroborated by any evidentiary material ([54]).
(iv) The respondent’s conduct was capable of amounting to contempt. Referral to the Supreme Court required consideration of two matters. First, “the public interest in the administration of justice requires compliance with all orders and undertakings, whether or not compliance also serves individual or private interests”: AMIEU v Mudginberri Station Pty Ltd [1986] HCA 46. Second, the personal circumstances of the applicant, who had been precluded from enjoying the property he acquired in 2015. The applicant was the beneficiary of Order 1, yet had no ability to enforce it. The fixing of an appropriate penalty appeared to be the only course of action available to the appellant to enforce rights which had been afforded to him by an order of the Tribunal. Therefore, the matter was referred to the Supreme Court ([62]-[64]).
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| In sum: The Tribunal in its enforcement jurisdiction made an order referring the matter to the Supreme Court for consideration of whether the respondent committed contempt of the Tribunal by its failure to comply with orders made by the Tribunal in January 2018.
Facts: In 2010 the applicant, Mr David Dodge (Mr Dodge), purchased a demountable home located in a park owned by the respondent, Hacienda Caravan Park Pty Ltd (Hacienda). The applicant sought a residential site agreement, as was held by the previous owners of the home, however was presented with an occupation agreement by Hacienda. The occupation agreement would have limited occupancy to 180 days per year, with no more than 28 consecutive days occupancy without Hacienda’s permission. Mr Dodge refused to sign this agreement, and lived with his spouse on the site permanently and paid rent, which was accepted by Hacienda. Hacienda did not ask Mr Dodge to leave the park. Mr Dodge participated with other residents in proceedings against Hacienda at the former Consumer Trade and Tenancy Tribunal, regarding rent increases, where the Tribunal’s jurisdiction was predicated on them being “residents” under a “residential tenancy agreement” ([12]).
Following changes to NSW legislation, the applicant sought an order under s 26(4) of the Residential (Land Lease) Communities Act 2013 (NSW) (RLLC Act) compelling the respondent to enter into a written site agreement in the standard form. The Tribunal made orders, which were upheld on appeal at the Supreme Court, that the respondent prepare a written site agreement with a commencement date set as the date of the orders in January 2018, fees set at the current amount and method of fee increases set at that which was applied at the time of the most recent increase ([3], [14], [18]).
Held (referring to the Supreme Court):
(i) Any contempt following the making of the Tribunal’s orders could arguably be reasonably excused in the short term due to the respondent’s appeal ([24]).
(ii) The respondent’s submission that it could not comply with the orders because the terms of the orders rendered it impossible for the respondent to comply with its duty under s 21 of the RLLC Act to provide a disclosure statement 14 days prior to entering into a site agreement was rejected. Arguably, the orders of the Tribunal would override the statutory requirement because of the wide powers granted to the Tribunal by ss 156 and 157 for settling disputes between parties. Further, this matter should have been raised at least before the Appeal Panel or the Supreme Court, and the respondent was not permitted to raise it in the Enforcement Division ([41]-[42]).
(iii) The respondent’s assertion that it would not provide any form of site agreement without fulfilment of the preconditions did not constitute compliance with the Tribunal’s orders. These arguments also should have been raised in proceedings before the Tribunal at first instance, before the Appeal Panel and before the Supreme Court. The respondent was represented by counsel and solicitors, and had at all material times the ability to seek legal advice on these issues. Prima facie the respondent’s conduct would justify referral to the Supreme Court ([46]-[48]).
(iv) The respondent’s submission that it could not comply with the order to provide a site agreement until the applicant had satisfied a number of conditions, including providing details of all structures on the site, is rejected. The respondent’s letter listing these matters merely noted the necessity to ensure that the structures were compliant with State regulations, but did not assert that they were not compliant in any manner. There was no reasonable excuse for the respondent’s non-compliance with the Tribunal’s orders. The respondent at all times was aware of the terms of the orders but persisted in insisting that it was entitled to disobey them, because of a mistaken belief that its statutory obligations otherwise allowed it to take an alternative course of action. There was no casual, accidental or unintentional excuse for the respondent’s wilful and persistent disobedience of the Tribunal’s orders. Therefore the respondent’s behaviour was capable of amounting to contempt of the Tribunal, and was referred to the Supreme Court for determination ([63], [69], [71]-[74]).
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| | | Decision of: S Westgarth, Deputy President; D Robertson, Senior Member
Catchwords: COSTS – No issue of principle
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| Decision of: The Hon F Marks, Principal Member; K Ransome, Senior Member
Catchwords: STRATA TITLE- appeals from orders of Tribunal requiring appellants to remove work carried out by them on common property without authority and to pay legal costs of body corporate - finding that work was carried out on common property upheld-adverse costs order upheld- appeals dismissed
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| Decision of: K Ransome, Senior Member; M Gracie, Senior Member
Catchwords: APPEAL — no question of law - leave to appeal from decision of Consumer and Commercial Division of NCAT - leave to appeal refused
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| Guardianship Division
Decision of: J S Currie, Senior Member; P Durack SC, Senior Member; M Bolt, General Member
Catchwords: APPEAL - financial management application-procedural fairness-conduct of the hearing -reasonable opportunity to be heard - apprehended bias-application of law concerning incapability of managing affairs-no error of law-no plain error of fact
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| Decision of: Dr R Dubler SC, Senior Member; J McAteer, Senior Member
Catchwords: EXTENTION OF TIME – whether the Appeal Panel should grant an extension of time within which to appeal
LEAVE TO APPEAL – whether to grant leave to appeal
NEW EVIDENCE – whether to permit new evidence on appeal
RESIDENTIAL TENANCY – whether the Tribunal erred in finding that s 91(1)(a) of the Residential Tenancies Act was satisfied and in ordering the termination of the tenancy
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| Consumer and Commercial Division - Tenancy
Decision of: S Thode, Principal Member; M Gracie, Senior Member
Catchwords: APPEAL - no question of law - leave to appeal from decision of Consumer and Commercial Division of NCAT - leave to appeal refused
RESIDENTIAL TENANCY - termination of residential tenancy agreement - loss of employment or income - non-payment of rent - whether a result of the impact of the COVID-19 pandemic - no evidence - s228B Residential Tenancies Act 2010 (NSW)
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| Decision of: A Britton, Principal Member; M Gracie, Senior Member
Catchwords: COSTS — operation of r 38A of the Civil and Administrative Tribunal Rules 2014 — whether “the amount … in dispute” in the appeal exceeded $30,000
APPEAL— whether Appeal Panel has the power to award costs in relation to proceedings at first instance in circumstances where the Tribunal did not make a decision in relation to costs
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| Decision of: S Westgarth, Deputy President; M Gracie, Senior Member
Catchwords: APPEAL — NCAT — fresh evidence - question of law - statutory construction - appeal from decision of Consumer and Commercial Division of NCAT
COMMUNITY SCHEME - Residential (Land Lease) Communities Act 2013 (NSW) - residential and tourist sites - age restriction rule for residents - home owner - occupant - whether rule fair and reasonable and clearly expressed - age restrictions for additional occupants - whether rule inconsistent with another Act - anti-discrimination - age discrimination - whether operator under a site agreement provides goods and services - community rules - statutory and other instruments - application of community rule to tourists
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| Consumer and Commercial Division - Motor Vehicles
Decision of: S Westgarth, Deputy President; The Hon F Marks, Principal Member
Catchwords: APPEAL- motor vehicle repair – failure to identify the contract between the parties- failures to give adequate reasons – appeal upheld – proceedings remitted for reconsideration before the Tribunal differently constituted
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| Decision of: Dr R Dubler SC, Senior Member; J McAteer, Senior Member
Catchwords: RESIDENTIAL TENANCY – whether the Tribunal erred in finding that an application for compensation for damage to the premises cannot arise while the tenancy remains on foot.
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| Decision of: S Thode, Senior Member; M Gracie, Senior Member
Catchwords: APPEAL – LAND LAW - Residential Tenancy -– termination of residential tenancy agreement - notice of termination invalid - error of law - premises subsequently vacated
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| Guardianship Division
Decision of: C P Fougere, Principal Member; J Kearney, Senior Member; F Given, General Member
Catchwords: APPEAL – Civil and Administrative Tribunal (NSW) – Guardianship Division – internal appeal – question of law – whether the appellant was denied procedural fairness – hearing rule – whether refusal to grant an adjournment was a failure to afford procedural fairness – McKenzie friend – whether hearing conducted by telephone denied subject person the benefit of McKenzie friend – leave to appeal on other grounds – whether Tribunal erred in not finding power of attorney was a fraudulent document – whether Tribunal had relevant documents before it - no question or principle or policy raised – no manifest error in the decision or decision making process – leave refused – appeal dismissed.
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| Decision of: L Pearson, Principal Member; D Robertson, Senior Member
Catchwords: COSTS – Calderbank offers – whether offer provided better result than ultimate outcome – whether unreasonable to reject – significance of absence of agreement to pay costs – significance of entitlement to renew proceedings if rectification work not completed
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| Consumer and Commercial Division - Home Building
Decision of: T Simon, Principal Member; P H Molony, Senior Member
Catchwords: COSTS---Rule 38A Civil and Administrative Tribunal Rules 2014---Amount claimed or in dispute in appeal proceedings---Whether special circumstances must be established
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| Decision of: A Britton, Principal Member; A Boxhall, Senior Member
Catchwords: APPEAL — NCAT — leave to appeal from decision of Consumer and Commercial Division of NCAT — assessment of whether decision is “against the weight of evidence” where Appeal Panel is not provided with all of the material that was before the Tribunal
COSTS — whether special circumstances warranting an award for costs are established —- whether discretion to award costs should be exercised
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| Decision of: Dr R Dubler, Senior Member; L Wilson, Senior Member
Catchwords: BUILDING AND CONSTRUCTION – whether the owners terminated the building contract by accepting the repudiation of the builder – whether the Tribunal erred in holding that the building contract remains on-foot – what order should be made for damages
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| Decision of: G Blake AM SC, Senior Member; Dr J Lucy, Senior Member
Catchwords: APPEALS – Nature of new hearing
LEASES AND TENANCIES – Whether agreement to rent a commercial warehouse is a lease or a licence – Where studios in warehouse rented to occupants with right to use facilities and common areas – Where each rental agreement is stated to be a commercial agreement with no permission granted to live in the premises – Where landlord provides beds and occupants in fact live in the premises to the landlord’s knowledge - Whether the agreement between the landlord and each of the occupants is a sham – Whether the agreements are properly characterised as residential tenancy agreements under the Residential Tenancies Act 2010 (NSW) or occupancy agreements under the Boarding Houses Act 2012 (NSW) - Whether the Tribunal has jurisdiction to determine dispute between the landlord and each of the occupants – Whether the occupants are entitled to the return of their rental bond or security deposit when the landlord is evicted from the premises
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| Consumer and Commercial Division - Home Building
Decision of: M Harrowell, Deputy President; T Simon, Principal Member
Catchwords: BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – major defect – assessment of damages
COSTS – Award based on issues
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| Consumer and Commercial Division - Strata
Decision of: M Harrowell, Deputy President; J Kearney, Senior Member
Catchwords: STRATA TITLES LAW – Repeal of by-law – enforcement of settlement agreement reached at mediation under Part 12 Division 2 of the Strata Schemes Management Act 2015 – resolution to repeal by-law in consequence of settlement agreement – refusal by lot owner to consent to the repeal – power of Tribunal to make an order under s 149 of the Strata Schemes Management Act 2015 – whether refusal was unreasonable
ADMINISTRATIVE LAW – power of the Tribunal under s 58 of the Civil and Administrative Tribunal Act to impose conditions
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| Administrative and Equal Opportunity Division Decision of: S Westgarth, Deputy President; S Frost, Senior Member
Catchwords: APPEAL – Appeal against a decision refusing an extension of time to lodge an application for review – leave to appeal required – leave refused
PRACTICE AND PROCEDURE – bias – actual bias – apprehended bias – principles
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| Consumer and Commercial Division - Consumer Claim
Decision of: A Suthers, Principal Member; S Thode, Senior Member
Catchwords: APPEAL – Australian Consumer Law – assessment of “rejection period” – adequacy of reasons
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| Consumer and Commercial Division - Motor Vehicles
Decision of: Dr R Dubler SC, Senior Member; R C Titterton OAM, Senior Member
Catchwords: CONSUMER LAW – Australian Consumer Law – whether motor vehicle was not of acceptable quality pursuant to the consumer guarantee provided for under s 54 of the Australian Consumer Law
APPEALS – where point not taken at first instance
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| Consumer and Commercial Division - Tenancy
Decision of: P Durack, Senior Member; Dr J Lucy, Senior Member
Catchwords: LANDLORD AND TENANT – residential tenancy – failure to pay rent – termination – claim by tenants that financial situation adversely affected by COVID-19 pandemic
APPEALS – error of law – apprehended bias
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| Administrative and Equal Opportunity Division
Decision of: Dr R Dubler SC, Senior Member; Dr J Lucy, Senior Member
Catchwords: APPEALS – access to information – whether Tribunal erred by receiving evidence and submissions in the absence of the applicant – whether Tribunal denied appellant procedural fairness by withholding names of confidential witnesses
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| Consumer and Commercial Division - Tenancy
Decision of: M Harrowell, Deputy President
Catchwords: PRACTICE AND PROCEDURE – reinstatement of proceedings – multiple reinstatement applications – utility of reinstating proceedings – Extension of time to lodge reinstatement application – Residential tenancy proceedings – termination order challenged – tenant affected by COVID-19 pandemic
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| Consumer and Commercial Division - Strata
Decision of: K Rosser, Principal Member; M Gracie, Senior Member
Catchwords: COSTS – Amount in dispute – Rule 38 – Rule 38A.
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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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