NCAT Appeal Panel Decisions Digest Issue 1 of 2022 | 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 January 2022:
Wootten v Simmons [2022] NSWCATAP 21: The Tribunal made errors of law and fact where its decisions were based on assumptions, rather than the uncontested evidence before it. Kitchener v Clements [2022] NSWCATAP 19: The Tribunal failed to grant a necessary extension of time prior to making an award for compensation, thus invalidating the decision. Barrack Point Holdings Pty Ltd v Jenkins (No 2); Jenkins v Barrack Point Holdings Pty Ltd [2022] NSWCATAP 10: The decision of the Tribunal was overturned following an incorrect award of damages. As interference by the community operator in the sale of a residence did not cause any loss to be suffered, compensation was inappropriate. The Owners – Strata Plan 2010 v Kahn [2022] NSWCATAP 9: The owners had neither standing to bring an appeal (without the approval of the strata management agent) nor was there authority to join them to the first instance proceedings. The appeal was dismissed. Rokheya Kane Pty Ltd v Lam [2022] NSWCATAP 8: The Tribunal fell into jurisdictional error by awarding damages for lost rent following the expiration of the lease. This acted beyond the scope of the enabling legislation.
Each case title is hyperlinked to the full decision available on NSW Caselaw. | | | Wootten v Simmons [2022] NSWCATAP 21 Consumer and Commercial Division - Tenancy S Thode, Senior Member; G K Burton SC, Senior Member
In sum: The Appeal Panel held that the Tribunal had made its decision based on assumptions and disregarded the uncontested evidence before it. The decision was set aside, following both errors of law and fact, and the matter was remitted to a differently constituted Tribunal.
Facts: Mr Wootten (the landlord) claimed several expenses following the termination of Mr Simmons’ lease (the tenant). Mr Wootten and Mr Simmons entered a 13-week written residential contract where the tenant was to pay separately for water usage. A notice of termination was served on Mr Simmons under s 86 of the Residential Tenancies Act 2010 (NSW) (RTA). After a two-day delay, Mr Simmons vacated the premises and the property was repossessed. Mr Wootten claimed the delay in vacating and damage to the property resulted in the prolongment of the sale of the premise. Mr Wootten claimed the following expenses: unpaid rent, unpaid water usage, replacement of a door, labour and expenses for replacing light globes, damage to tiles, and recoupment of filing fees (a total of $2472.68). Evidence supporting the claim for damages was filed by Mr Wootten. Mr Simmons filed no evidence in response.
Held (allowing the appeal):
(i) The Appeal Panel held that at first instance there were three errors of law and one error of fact which “necessitate[d] reconsideration” (at [39]). These errors were; failing to consider and accept relevant evidence, taking into account irrelevant considerations and making findings contrary to uncontested evidence. Each amounted to an error of law and a substantial miscarriage of justice.
(ii) The Tribunal made no award for the extra two days' unpaid rent. The delay in vacating the premise was not challenged by Mr Simmons at the hearing nor in submissions. The Appeal Panel held that “in the absence of any other evidence,” unchallenged material must be accepted (at [26]). The failure to consider and accept relevant evidence amounted to an error of law.
(iii) The Tribunal arbitrarily awarded an amount of $400 for damage caused to the bedroom door, based on "mere supposition” rather than the evidence (at [30]). The Appeal Panel held that the only relevant considerations regarding the damage to the door were “the documents provided by the landlord,” which indicated $750 worth of repairs and remedial work (at [30]). An error of law was made by taking into account irrelevant considerations and rejecting the uncontested evidence.
(iv) The Tribunal erred in finding that Mr Wootten had not installed water efficiency measures. In refusing to allow Mr Wootten to admit fresh evidence of a plumbing certificate (indicating the separate water usage), there was an error in the factual finding. Further, “[t]he tenant had not previously disputed the existence of water efficiency measures and had paid previous water bills without any demur” [36]. The Tribunal “ignored” the evidence before it and the Appeal Panel found this to be a denial of procedural fairness (at [37]). The Tribunal made an error of fact, where the findings did not accord with the uncontradicted evidence before it.
(v) Findings made against the evidence caused a substantial miscarriage of justice. Mr Wootten’s claim for the cost of labour (as a licensed electrician) was disregarded by the Tribunal without proper explanation. Whilst it accepted the cost to replace light bulbs, it “did not consider on what basis the landlord’s own time [wa]s compensable” [31]. The Appeal Panel held that the Tribunal’s award of damages was made contrary to the evidence and caused a substantial miscarriage of justice (at [31]).
(vi) Ultimately, the appeal was allowed, the primary decision was set aside, and the matter was remitted to a differently constituted Tribunal with directions for further evidence. | Kitchener v Clements [2022] NSWCATAP 19 Consumer and Commercial Division - Tenancy The Hon Cowdroy AO QC ADJC, Principal Member, G Curtin SC Senior Member
In sum: The Appeal Panel set aside the findings of the Tribunal, where the award of compensation for personal injury and damage to goods was made without power. The Tribunal failed to grant an extension of time, thus invalidating the entire decision. The Tribunal also erred in failing to properly consider the claim to economic loss and out of pocket expenses. The matter was remitted to be heard by a differently constituted Tribunal.
Facts: Mr Clements (the respondent) leased a residential premise to Mr Kitchener and Ms Materna (the appellants). A condition report was filed noting various faults, including mould in one bedroom. Later, Mr Kitchener and Ms Materna made a complaint regarding a defective gutter and drain which caused dampness and the continued build-up of mould. Mr Clements attempted to repair the damage and instructed the appellants to clean the mould with sugar soap.
On first instance, Mr Kitchener and Ms Materna brought an application under s 190 of the Residential Tenancies Act 2013 (NSW) (RTA). The application concerned: physical and psychological injury to Ms Materna resulting from the mould, excessive rent, damage to personal belongings and a claim for economic loss and out of pocket expenses. Critically, the appellants sought leave for an extension of time to be granted, as they had exceeded the statutory limit for two of their claims. Mr Clements filed no material in opposition and took no part in the hearing. On first instance, the Tribunal made its decision without granting the necessary extension, thus invalidating the decision. Subsequently, Mr Kitchener and Ms Materna sought leave to appeal, primarily seeking an extension of time for their claims to be heard.
Held (allowing the appeal):
(i) The Appeal Panel stated that the discretionary powers of the Tribunal to allow an extension are “unfettered but must be exercised judicially” [18]. It considered four key factors; firstly, the sole income of the appellants was derived from the business located at the premise. Secondly, Ms Materna’s illness (both physical and psychological) allegedly arose from the existence of mould. Thirdly, Mr Kitchener and Ms Materna “were awaiting an expert report” which was essential evidence to their claim (at [20]). Finally, additional time was required to prepare evidence due to Ms Materna’s inability to work. Consequently, the extension was allowed.
(ii) The Appeal Panel set aside the Tribunal’s decision to award compensation for personal injury and damage to goods. Whilst the Tribunal has an inherent power to make such an order, any claim made under s 190 RTA is to be made in accord with the Residential Tenancies Regulation 2019 (NSW) (Regulation). The award of $47,063 exceeded the monetary limit prescribed by the Regulation. The Appeal Panel also noted that without the grant of an extension, “the claim for compensation arising from the presence of mould was invalid” and compensation could not be awarded (at [22](g)). The Appeal Panel set aside the decision regarding the personal injury claim and remitted it to a differently constituted Tribunal.
(iii) It was held that a claim for excessive rent under s 44 RTA “only has operation” under a current or proposed lease (at [22](b)). As such, the Tribunal had “no power” to order a reduction in rent as the claim was brought upon the termination of the lease. The Appeal Panel stated that order was both “mistaken and invalid” [22](b). The Appeal Panel quashed the decision of the Tribunal.
(iv) The Tribunal was "silent" on the issue of Ms Materna’s claim for economic loss and out-of-pocket expenses (at [22](h)). The significant deterioration of her health allegedly arose from a “hypersensitivity to mould,” deeming her unable to work (at [10]). Additional time was required to obtain evidence to support this claim (such as the expert report). The proceedings were remitted to a differently constituted Tribunal to be dealt with according to law. | Barrack Point Holdings Pty Ltd v Jenkins (No 2); Jenkins v Barrack Point Holdings Pty Ltd [2022] NSWCATAP 10 Consumer and Commercial Division - Residential Communities M Harrowell, Deputy President; J Currie, Senior Member
In sum: The Appeal Panel considered three key issues: when the benefit of home ownership was conferred per s 4 Residential (Land Lease) Communities Act 2013 (NSW) (RC Act); whether the community operator caused an interference with the sale of a residence and whether compensation was payable. It overturned the decision of the Tribunal to award compensation to Mr Jenkins and ordered costs to be paid to the community operator.
Facts: Barrack Point Holdings Pty Ltd was the operator of a residential community (the operator). Mr Lee Jenkins (Jenkins) was the executor and sole beneficiary of his late father’s estate. A residential site agreement with the operator formed part of the benefit from the validly executed will (the residence). Mr Jenkins approached the operator to advertise the sale of the residence, which was not sold until after probate was granted. Mr Jenkins alleged that the operator interfered with the sale of the residence as it insisted Mr Jenkins obtain probate to facilitate the sale.
On first instance, compensation was granted to Mr Jenkins. The Tribunal found that the operator had interfered with the sale of the residence and written reasons were provided. Subsequently, Mr Jenkins filed a section 63 application, requesting that the dates for compensation be extended to the correct date (being the conferral of the benefit on 4 March 2019). This was refused as an appeal had been lodged by the operator. Mr Jenkins filed a cross-appeal concerning errors of fact and law, the incorrect calculation of damages and he sought to include costs.
Held (allowing the appeal from the operator, dismissing the appeal from Mr Jenkins):
(i) Home Ownership: The Appeal Panel held that home ownership was conferred on Mr Jenkins “upon the death of the testator” who had a “validly executed will” [29]. Consequently, the benefit of the estate was not dependent on the grant of probate. Therefore, Mr Jenkins was a “homeowner” as defined by s 4 RC Act and was entitled to “exercise the rights so conferred” at the time he received the benefit, being 4 March 2019 (at [30]).
(ii) Interference: The Tribunal’s decision regarding two claims of interference by the operator was upheld. The first claim concerned the incorrect statements made by the operator which indicated to Mr Jenkins that he could not exercise his rights of ownership without the decree of probate. Correspondence between the parties was tendered as evidence. The Appeal Panel held that the statements made by the operator “could constitute interference” with the sale of the residence (at [45]). Secondly, the Appeal Panel held that the operator’s refusal to advertise the property for sale prior to the award for probate amounted to interference per s 107 RC Act (at [45]).
(iii) Compensation: Mr Jenkins made a claim for compensation, arising from the interference of the operator. Mr Jenkins sought compensation for the rent he paid under the site agreement until probate was granted and the residence was sold (at [66]). It was held that the operator’s conduct, “although constituting interference did not relevantly cause the damage in question to be suffered” [75]. The Appeal Panel overturned the decision of the Tribunal to award Mr Jenkins compensation, stating it was an “error” [66].
(iv) Ultimately, the Appeal Panel set aside the orders and dismissed the appeal. Procedural directions were made, ordering Mr Jenkins to pay the operator $1,760 for costs thrown away due to the adjournment, to be paid upon finalisation of the appeal. | The Owners – Strata Plan 2010 v Kahn [2022] NSWCATAP 9 Consumer and Commercial Division - Strata A Suthers, Principal Member; D Robertson, Senior Member
In sum: A managing strata agent, who was validly appointed at first instance, gave no authority for an appeal to be commenced on behalf of the Owners Corporation. Subsequently, the Appeal Panel dismissed an application for individual lot owners to be joined to the first instance decision. It was determined there was no authority for the action; the appeal was not validly brought.
Facts: Mr Kahn fell into dispute with the other owners of the lot (the other owners) in his apartment block. The dispute concerned the management of the strata scheme and the refusal to allow Mr Kahn the benefit of an exclusive use by-law over part of the common property. At first instance, Mr Kahn proposed the appointment of a strata management agent. The other owners agreed, however sought to impose a condition preventing the agent from granting any ‘exclusive use’ by-laws over the common property. The Tribunal appointed managing strata agent with full powers of the Owners Corporation. No conditions were imposed.
The other owners lodged a Notice of Appeal, purportedly in the name of the Owners Corporation. They argued that procedural fairness had been denied where the Tribunal appointed the managing agent proposed by Mr Kahn. They also argued the Tribunal failed to engage with the issue of excluding the right to make a by-law granting exclusive use. Mr Kahn questioned the validity of the appeal, noting it was brought without authority from the managing agent.
Held (dismissing the appeal):
(i) The central issue on appeal was whether the other lot owners had standing to bring the appeal.
(ii) Firstly, the other owners lacked authority to lodge an appeal. This option was not available to persons who were not parties to the initial proceedings. The Owners Corporation (though its appointed manager) did not authorise the appeal.
(iii) Secondly, the owners sought to be joined as individual parties to the first instance proceedings. Under r 29 Civil and Administrative Tribunal Rules 2014, the lot owners had “no apparent standing” where a managing agent had been appointed (at [11]). Consequently, they sought to be joined as individual parties to the first instance proceedings so they would have standing to bring the appeal. It was argued that the Tribunal was empowered to join them as parties where the Tribunal considered it appropriate under s 44(1) NCAT Act.
The Appeal Panel held there was a “fundamental flaw” in this argument as s 44 (1) provides that a person may be joined to a proceeding if the Tribunal considers that person should be joined as a party, however that was not applicable here as section 44 does not extend to internal appeal matters.
Further, s 81(2) of the NCAT Act outlines the Appeal Panel’s power to exercise the functions conferred on the Tribunal at first instance. Those powers are “limited to situations where it is confirming, affirming or making a decision in substitution for, the decision under appeal” [32]. As the Tribunal was not exercising those specific powers, there was no valid appeal.
(iv) Thirdly, the other owners argued that the Appeal Panel had the power to conduct an appeal as a new hearing, pursuant to s 80(3)(a) NCAT Act. The Appeal Panel held that the power under s 80(3)(a) is predicated on the existence of a valid appeal. As the “appeal was irregularly commenced” it was “effectively a nullity” [33]. The owners argued that it was open to the Appeal Panel to determine its own procedure to hear the appeal, pursuant to s 38 NCAT Act. The Appeal Panel held that s 38 only operated to allow the Tribunal to determine its own process where there is otherwise a gap in the procedure set out in the NCAT Act or Rules. Section 81 of the NCAT Act “covers the field” in this regard, setting out who may appeal (at [44]). Consequently, there was no scope to initiate an irregular appeal.
(v) Ultimately, the other owners failed to establish any standing to bring the appeal. The Appeal Panel held that, if it was wrong on that issue, it would still refuse the appeal for the following reasons; there was no utility, there is an avenue to seek relief in the Supreme Court (where there is settled law on the issue), and the lot owners attempted to resolve the “real issues” on appeal, rather than at the first instance hearing (at [37]). | Rokheya Kane Pty Ltd v Lam [2022] NSWCATAP 8 Consumer and Commercial Division - Commercial G Curtin SC, Senior member; A Boxall, Senior Member
In sum: The Appeal Panel dismissed all grounds of appeal raised by Rokheya Kane Pty Ltd and raised the issue of jurisdictional error. The Appeal Panel held that no cause of action was established under s 72 of the Retail Leases Act 1994 (NSW) (RLA) nor was there a relevant power to make an award of damages for the loss of rent. As such, the Tribunal fell into jurisdictional error by awarding “damages for lost rent” for a period which post-dated the end of the lease.
Facts: Rokheya Kane Pty Ltd (Rokheya) signed a commercial lease with Mr Lam as the lessor, which commenced on 23 September 2014. The lease contained an option to renew for five years, which had to be exercised three to six months prior to the expiration of the lease. On 1 April 2015, Rokheya was declared bankrupt, and Mr Diagne (Director of Rokheya) was de-registered. Consequently, all the property of Rockheya properly vested with the Australian Securities and Investments Commission (ASIC).
On 1 May 2019, Mr Diagne wrote a letter to Mr Lam, where he purported to exercise the option to renew the lease for an additional five years. Mr Diagne stated that he acted in his capacity as a Director of Rokheya. On 24 September 2019, Mr Lam “terminated” the lease on the grounds of non-payment. Critically, the lease had expired two days prior and did not exist at the time of the action. An appeal was commenced by Rokheya, after “damages for lost rent” were awarded to Mr Lam, as the premise remained unoccupied since the cessation of the lease.
Held (allowing the appeal):
(i) The Appeal Panel held that the grounds of appeal proffered by Rokheya had “no substance and must be dismissed” [4]. The Appeal Panel raised two potential jurisdictional errors made by the Tribunal. Firstly, whether the option to renew could be exercised and secondly, whether there was any power to make an award of damages for lost rent.
(ii) Option to renew: On first instance, the Tribunal found that the option to renew had not been properly exercised. This decision was upheld by the Appeal Panel for four separate reasons. Firstly, Rokheya did not exist at the time the lease was to be extended because it remained deregistered. Secondly, Mr Diagne “was not and could not be” acting as a director or on behalf of the company in any capacity (at [43]). Thirdly, upon proper construction of the letter from Mr Diagne to Mr Lam, all that was expressed was an “intention to renew at some future time,” rather than a proper exercise of the option to renew (at [42]). Fourthly, prior to the expiration of the lease, Rokheya was in breach for non-payment of rent. As Rokheya was in breach of the lease, it was unable to exercise the option to renew according to the terms of the lease (at [43]). Finally, all the property and interests of Rokheya had vested in ASIC. Consequently, ASIC was the only entity capable of exercising the option to renew “at that point in time” [42].
(iii) Damages: The Appeal Panel held that the award of damages was “erroneous,” overturning the decision of the Tribunal (at [55]). It held that whilst the Tribunal had the jurisdiction to hear the matter, this was distinct from the power to award the requested damages. Section 72 RLA (the empowering legislation) only permits an award of damages where there is cause of action which gives rise to an order for one party to pay another. The Appeal Panel held that no “cause of action existed” nor was there a relevant power to award damages specifically for a “loss of rent” under s 72 RLA (at [88]). Consequently, there was an “absence of jurisdictional fact” upon which the award of damages was contingent on. Ultimately this amounted to a jurisdictional error (at [90]).
(iv) The Appeal Panel set aside the award for damages and upheld the decision of the Tribunal ordering Rokheya to pay Mr Lam the sum of $35,706.54 for rent arrears. | | | | Williams v Wentworth [2022] NSWCATAP 22
Consumer and Commercial Division - Tenancy Decision of: S Wesgrath, Deputy President; P H Molony, Senior Member Catchwords: APPEAL-identity of and correct name of tenant-alleged failure to serve documents on the tenant-no evidence concerning impact of COVID on tenant-extending time because of concession made by landlord and the resulting need to reduce the amount ordered to be paid. | Wootten v Simmons [2022] NSWCATAP 21
Consumer and Commercial Division - Tenancy Decision of: S Thode, Senior Member; G K Burton, Senior Member Catchwords: RESIDENTIAL TENANCY – claims on bond – errors of law - inadequate reference to uncontradicted evidence – leave to appeal errors of fact against the weight of evidence – decision not fair and equitable | ZJA v ZJB [2022] NSWCATAP 20 Guardianship Division Decision of: C P Fougere, Principal Member; P Molony, Senior Member and , S Taylor, General Member Catchwords: APPEAL - Guardianship Division – appellant sought leave to appeal decision to reappoint Public Guardian as son’s guardian – evidence permitted Tribunal to conclude that appellant could not adequately exercise functions of the guardianship order - no basis for leave to appeal - appeal dismissed. | Kitchener v Clements [2022] NSWCATAP 19 Consumer and Commercial Division - Tenancy Decision of: The Hon Cowdroy AO QC ADJC, Principal Member, G Curtin SC Senior Member Catchwords: APPEALS – Residential Tenancies Act 2010 – claim for compensation by tenants for psychological and physical injury, and damage to property arising out of presence of mould in premises – claim for reduction in rent – claims by tenants made outside of the statutory time limits – tenants requesting extension of time in which to bring claims – Tribunal decision made without extending time in which to bring the claims – decision thereby invalid – proceedings remitted for fresh hearing | Huang t/as Auchland & Co v Zhang [2022] NSWCATAP 18 Consumer and Commercial Division - Consumer Claim Decision of: G Blank, Senior Member; J McAteer, Senior Member Catchwords: APPEAL – consumer contract – conveyancing services – breach of contract– no issue of principle | | Screations Pty Ltd v Fraser [2022] NSWCATAP 16 Consumer and Commercial Division - Tenancy Decision of: K Ransome, Senior member; L Wilson Senior Member Catchwords: APPEAL – residential tenancy – claim for damage to goods, inability to fully utilise premises and non-economic loss - decision said to be not fair and equitable and against the weight of the evidence – no substantial miscarriage of justice – leave to appeal refused | Mehr v Lau [2022] NSWCATAP 15 Consumer and Commercial Division - Commercial Decision of: G Curtin, Senior Member, G Saginson, Senior Member Catchwords: ADMINISTRATIVE LAW — particular administrative bodies — NSW Civil and Administrative Tribunal – renewal of proceedings – restriction on renewal if the order not complied with “is or has been the subject of an internal appeal” – restriction does not apply to an order varied on an earlier appeal | Bauer v Farm Cove Investments Pty Ltd [2022] NSWCATAP 14 Consumer and Commercial Division - Residential Communities Decision of: P Durack SC, Senior Member; E Bishop, Senior Member Catchwords: LEASES and TENANCIES- termination of site agreement pursuant to s 122 of the Residential (Land Lease) Communities Act 2013 (NSW)-site agreement made under repealed legislation and continued under new legislation - power under new legislation to terminate occupancy by the “home owner”-residence was a caravan-question raised as to who owned the caravan. ESTOPPEL- issue and Anshun estoppel-orders made in previous Tribunal proceedings on the basis the appellant was the “home owner”-whether appellant estopped from contending in current proceedings that her husband was the “home owner”. APPEALS-- question of law-whether Tribunal erred by failing to consider and address question as to who was the “home owner”- in any event, the appellant was estopped from making this contention. | Forbes v Spratt [2022] NSWCATPAP 13 Consumer and Commercial Division - Tenancy Decision of: G Blake AM SC, Senior Member; M Gracie, Senior Member Catchwords: COSTS – costs of appeal – appeal withdrawn by appellant without a hearing on the merits – principles applicable to costs where no hearing on the merits – withdrawal effectively a surrender | Jiang v Kassis [2022] NSWCATAP 12 Consumer and Commercial Division - Home Building Decision of: The Hon Cowdroy AO QC ADCJ, Principal member; G Curtin SC, Senior Member Catchwords: APPEALS – order made by Tribunal unexplained – reasons failing to state the basis upon which the order for payment of monies was made – monetary calculations not conforming to the Tribunal’s order | The Owners Strata Plan No 74698 v Jacinda Investments Pty LTD (No 2) [2022] NSWCATAP 11 Consumer and Commercial Division - Strata Decision of: M Harrowell, Deputy President; J Kearney, Senior Member Catchwords: PRACTICE AND PROCEDURE – Application for costs – applicability of r 38 of the Civil and Administrative Tribunal Rules where challenge to an award for damages is withdrawn but appeal continues in respect of other relief – partial success in appeal – allowance in respect of successful challenge concerning transfer of common property | | The Owners – Strata Plan 2010 v Kahn [2022] NSWCATAP 9 Consumer and Commercial Division - Strata Decision of: A Suthers, Principal Member; D Robertson, Senior Member Catchwords: APPEALS - Standing of lot owners to bring appeal on behalf of Owners Corporation where strata manager appointed by Tribunal with plenary powers LAND LAW – Strata Title – Strata managing agent – Compulsory appointment of strata managing agent – Strata managing agent appointed with plenary powers | Rokheya Kane Pty Ltd v Lam [2022] NSWCATAP 8 Consumer and Commercial Division - Commercial Decision of: G Curtin SC, Senior member; A Boxall, Senior Member Catchwords: ADMINISTRATIVE LAW — particular administrative bodies — NSW Civil and Administrative Tribunal – jurisdictional error – power to order a party to pay money to a person specified in the order, whether by way of debt, damages or restitution, under the Retail Leases Act – power dependent upon the existence of a cause of action giving rise to a claim for debt, damages or restitution – the absence of a cause of action amounts to the absence of a jurisdictional fact needed to exercise the power | B & W Windows (Residential) Pty Ltd v Sabilia; (No 2) [2022] NSWCATAP 7 Consumer and Commercial Division - Home Building Decision of: K Rosser, Principal Member; D Robertson, Senior Member Catchwords: COSTS – Offers of settlement made inclusive of costs – Whether effective Calderbank offers – Appellant successful on some but not all issues – Whether costs should be apportioned by reference to the parties’ relative success | | DVT v Commissioner of Police (No 2) [2022] NSWCATAP 5 Administrative and Equal Opportunity Division Decision of: S Wesgrath, Deputy President; M Harrowell, Deputy President Catchwords: COSTS – Special Circumstances – no special circumstances warranting an award of costs PRACTICE AND PROCEDURE – application for an order to prohibit the publication of solicitors charge rates provided in evidence in support of an application for costs – principle of open justice | DVT v Commissioner of Police [2022] NSWCATAP 4 Administrative and Equal Opportunity Division Decision of: S Wesgrath, Deputy President; M Harrowell, Deputy President Catchwords: COSTS – Special Circumstances – no special circumstances warranting an award of costs PRACTICE AND PROCEDURE – application for an order to prohibit the publication of solicitors charge rates provided in evidence in support of an application for costs – principle of open justice | ZUY V NSW Trustee and Guardian [2022] NSWCATAP 3 Guardianship Division Decision of: C P Fougere, Principal Member; D Charles, Senior Member and M Oxenham, General Member Catchwords: APPEAL – Appeal from orders made by Guardianship Division – decision to confirm financial management order – appellant held genuine belief that despite evidence to the contrary he was not present at 2005 hearing when order was first made and unsafe conclusions reached – no basis for leave to appeal - appeal dismissed. | Li v Bonestroo [2022] NSWCATAP 2 Consumer and Commercial Division - Tenancy Decision of: L Wilson, Senior member, D Goldstein, Senior Member Catchwords: RESIDENTIAL TENANCIES – Break lease fee – Amount of compensation – s.187 Residential Tenancies Act 2010 | | | 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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