NCAT Appeal Panel Decisions Digest Issue 1 of 2025 |
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 2025: |
YJO v YJP [2025] NSWCATAP 7: The Appeal Panel refused leave and dismissed an appeal in circumstances where NCAT misstated the statutory test for determining guardianship pursuant to s 17(1) of the Guardianship Act 1987 (NSW). NCAT had considered the correct legal question posed by s 17(1)(c) and ultimately concluded that the applicant was not appropriate to appoint as guardian with respect to certain decisions. The Appeal Panel found that the misstatement was not material to the decision, dismissing the appeal.
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Lim v The Owners – Strata Plan No 51159 [2025] NSWCATAP 14: Despite finding that the parties had ample opportunity to express their views at first instance, the Appeal Panel determined that there was no clear distinction concerning whether the Member was conducting a mediation or a hearing, which was procedurally unfair. Nevertheless, the Appeal Panel dismissed the appeal in consideration of the guiding principle to determine the “just, quick and cheap” resolution of the real issues, noting that there was no practical utility in reconsidering the application in circumstances where the appellants’ own expert evidence was not supportive of their case.
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Yeh v Bazdaric Homes Pty Ltd; Bazdaric Homes Pty Ltd v Yeh [2025] NSWCATAP 17: Due to a builder’s error, homeowners were required to undertake considerable expenses, and they refused to pay the builder’s final invoices. The “ruling principle” was applied, whereby if a party has suffered loss due to a breach of contract, the damages recoverable must place that party, as far as money can do it, in the same position as if that contract had been performed. If the course taken to rectify the breach was not reasonable, the ruling principle may be displaced. The Appeal Panel allowed the appeal, noting that NCAT had erred in displacing the principle in consideration of only two factors concerning reasonableness. NCAT had also erred at first instance by finding that there was no loss to the homeowners because their son had incurred the costs which were incurred on behalf of his parents under power of attorney.
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Each case title is hyperlinked to the full decision available on NSW Caselaw. |
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1. Will the misstatement of a statutory test give rise to an appeal as of right in circumstances where the correct legal test has already been applied? |
YJO v YJP [2025] NSWCATAP 7 A Britton, Deputy President; J Moir, Senior Member (Legal); and Dr B McPhee, Senior Member (Professional)
In sum: In the first instance decision, NCAT misstated the statutory test for the appointment of a guardian pursuant to s 17(1) of the Guardianship Act. Nonetheless, NCAT proceeded to consider the correct legal question posed by s 17(1)(c), ultimately concluding that the proposed guardian was not able to exercise the access function. The Appeal Panel found that the misstatement regarding s 17 was not material to the decision, dismissing this ground of appeal.
Facts: A forty-five-year-old man (the Son) was assaulted resulting in a brain injury and his mother (the Mother) was initially appointed as his guardian. The Son had moved to Sydney several years prior to the injury. NCAT was told that he had become comfortable living as a gay man and had developed a supportive group of friends. In the decision to renew the guardianship order, the Mother was appointed as guardian concerning medical decisions and the NSW Public Guardian was given authority to determine the access that the Son had to other people, such as his friends. A key consideration in the access decision was that the Son had told his representative that the Mother was not accepting of his lifestyle but they were otherwise close. The Son’s friends had been visiting him and were reportedly having a positive effect on his recovery, however, despite the Son’s desire to have the friends in his life, the Mother had made clear to NCAT that she would ban the friends from visiting and that she felt they were responsible for the assault.
At first instance, NCAT stated that it was tasked with determining “who is best placed to make access decisions”, which was a misstatement of the statutory test in s 17. NCAT went on to apply the correct statutory test and determined that it was not satisfied that the Mother was able to exercise the access function within the meaning of s 17(1)(c) or with regard to the principles outlined in s 4 of the Guardianship Act. It considered that Mother was unable to make objective and dispassionate decisions on behalf of the Son regarding access, which had the potential to be unduly restrictive on the Son’s life and be damaging for their relationship. In the appeal, the Mother argued that NCAT had made an error on a question of law by incorrectly applying the statutory test and that she had changed her view and would allow the friends to visit the Son. The Mother contended that her perspective change was “fresh new evidence” to warrant the grant of leave to appeal. Paradoxically, the Mother had recently emailed one of the friends and accused him of being a ‘devil’, ‘[e]vil’ and a ‘psychopath’.
Held (refusing leave to appeal and dismissing the application): (i) The Appeal Panel held that at first instance, the statutory test outlined in s 17(1)(c) of the Guardianship Act was incorrectly stated by NCAT. Nonetheless, NCAT proceeded to consider the proper legal question posed by s 17(1)(c) and appropriately concluded that the Mother was not a suitable person to exercise the access function. The Appeal Panel found that the misstatement was not material to the decision, dismissing this ground of appeal.
(ii) With regard to the fresh evidence, the Mother’s inflexible view on the friends visiting the Son was a concern that informed NCAT’s original conclusion to appoint the NSW Public Guardian. The Appeal Panel was not persuaded that if the Mother’s fresh evidence had been put to NCAT at first instance, that there would have been a different result, nor were they persuaded that her change in opinion warranted the use of the discretion to grant leave to appeal. |
2. In circumstances where there has been an error on a question of law, is an Appeal Panel obliged to return a matter for reconsideration, despite there being no practical utility in doing so? |
Lim v The Owners – Strata Plan No 51159 [2025] NSWCATAP 14 K Ransome, Principal Member and D Ziegler, Senior Member
In sum: At first instance, the parties had ample opportunity to express their views, however the hearing operated without distinction between mediation and hearing. The Appeal Panel found that this was procedurally unfair. Nevertheless, the appeal was dismissed in consideration of the guiding principle to determine the “just, quick and cheap” resolution of the real issues, noting that there was no practical utility for reconsideration in circumstances where the appellants’ own expert evidence was not supportive of their case.
Facts: The appellants (the Lims) purchased an apartment some 30 years ago and installed a screen door on the common property entrance to the building. During an annual fire safety inspection, the screen door was found to be non-compliant and the respondent (the Owners Corporation), removed the screen door to comply with the requirements of the fire certification. The Lims applied to NCAT to have the door reinstalled. At the hearing, the Member asked questions and explored various options with the parties to resolve the issue. When the matter did not resolve, the Member proposed that the Lims should withdraw their application if the Owners Corporation could provide an expert report that the screen door was non-compliant, to which the Owners Corporation agreed and the Lims did not. The Lims then asked if the matter was adjourned until receipt of the expert report and the Member told them that the application had been withdrawn, although this did not form part of the orders. The orders required the Owners Corporation to produce an expert report to inform the parties of whether the screen door would be deemed compliant with adjustments, or if the door must be removed to comply. The expert evidence from both sides conveyed that the door was not compliant, and that reinstallation was not open to the Owners Corporation in keeping with their obligations under s 106 of the Strata Schemes Management Act 2015 (NSW) (SSMA). The Lims appealed the first instance decision on the basis that they had not been afforded procedural fairness at the hearing.
Held (refusing the appeal and dismissing the application): (i) The Appeal Panel considered that each party was given ample opportunity to express their views, however, the way the hearing proceeded was confusing and no distinction was made between whether the Member was acting as a conciliator/mediator or hearing the application. It was apparent that the Lims were unaware that by agreeing to the orders proposed by the Member, the matter would be finalised. Their question about an adjournment strongly supports this.
(ii) Although there was no formal order, the Member said on more than one occasion that the application had been withdrawn, even though the Lims did not state they were withdrawing the application. The appeal ground concerning procedural fairness was made out.
(iii) Due to the procedural fairness errors at first instance, the Appeal Panel noted that in normal circumstances, the appeal would be allowed, and the matter would be sent to the Tribunal for reconsideration. However, the screen door was the responsibility of the Owners Corporation and both experts agreed that the screen door could not be reinstated pursuant to the duties outlined in s 106 of the SSMA. The Appeal Panel held there was no practical utility in redetermining the matter in facilitation of the guiding principle set out in s 36(2) of the Civil and Administrative Tribunal Act 2013 (NSW). |
3. When is the “ruling principle” displaced in the assessment of damages? |
Yeh v Bazdaric Homes Pty Ltd; Bazdaric Homes Pty Ltd v Yeh [2025] NSWCATAP 17 S Westgarth, Deputy President, and D Goldstein, Senior Member
In sum: Loss and damages at common law are assessed by applying the “ruling principle”, whereby if a party has suffered a loss as a result of breach of contract, the damages recoverable should put that party in the same place as if the contract had been performed. This principle can be displaced by the respondent if a reasonable course to rectify the breach was not taken as outlined in Bellgrove v Eldridge [1954] HCA 36. To displace the principle in this case, the builder would need to demonstrate that the works for which the damages claim is made, had failed mitigate the loss or had breached the principles outlined in Bellgrove v Eldridge. The fact that the payments were made by the son pursuant to a power of attorney does not indicate that there is no loss on behalf of the homeowners.
Facts: There was a dispute between homeowners and a builder concerning residential building work with several defects. The main defect was that the planned gravity sewerage system could not be connected due to the builder’s failure to carry out his obligation under the contract to ensure the correct heights were on the plans. The homeowners arranged for the extra works required to install a gravity system at considerable expense (the works), which delayed the completion of the project. The builder lodged an application with NCAT concerning two unpaid invoices and the homeowners filed a subsequent application seeking to recover the costs of the works and other defects. The builder contended that the installation of a cheaper ‘pump system’ would have fulfilled the contractual obligation at a cheaper, yet unspecified, cost and that the invoices were due when he issued them as the project had reached practical completion. The homeowners argued that they were entitled to withhold payment of the amounts outstanding. The experts for both parties agreed on the reasonable costs of the works, however the actual cost was substantially higher. At first instance, NCAT found that a pump system was the reasonable course in applying principles of Bellgrove v Eldridge because it was cheaper and quicker than the works, although NCAT did not consider the homeowners’ reasoning for their preferred gravity system, including lower ongoing costs and maintenance requirements. In any event, the son had incurred the cost of the works and on this basis, NCAT at first instance found that there was no loss to the homeowners, and they could not recover the costs of the works. The homeowners were ordered to pay the outstanding invoices in full, with interest accrued from the due date.
Held (allowing the appeal and ordering the homeowners to pay the builder the adjusted amounts): (i) It was an uncontested fact that the son as attorney for the homeowners had signed contracts on behalf of his parents. The Appeal Panel found that NCAT had erroneously taken into account irrelevant considerations as a consequence of the son acting under the power of attorney (although under his own name) and that the homeowners had indeed suffered loss by incurring the cost of the new sewer system.
(ii) The Appeal Panel was not satisfied that the actual cost of the works was reasonable and ordered that the appropriate figure was the cost agreed by the experts for both parties.
(iii) The Appeal Panel also held that the homeowners should have liquidated damages for the delay in having their sewerage connection, despite insisting on their preferred system. As a result of this reasoning, NCAT’s original finding that the homeowners were entitled to withhold the owed amounts from the builder, and the inclusion of the cost of the works that had previously been excluded, the principal amount owed to the builder was significantly reduced and consequently, the interest payable. |
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Lu v The Owners - Strata Plan No 66347 [2025] NSWCATAP 2 Appeal from the Consumer and Commercial Division - Strata Schemes Decision of: G Blake AM SC, Principal Member Catchwords: COSTS – costs application by the respondent – principles – withdrawal of appeal by the appellant - no hearing on the merits – costs application dismissed |
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YKD v YKE [2025] NSWCATAP 4 Appeal from the Guardianship Division Decision of: Coleman SC ADCJ, Principal Member; C Mulvey, Senior Member; M Bolt, General Member Catchwords: APPEAL – No error of law – no new evidence – re-agitation of the same issues GUARDIANSHIP – whether application misconceived – summary dismissal at interlocutory hearing – s 55(1)(b) of the Civil and Administrative Tribunal Act (NSW) 2013 |
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YJO v YJP [2025] NSWCATAP 7 Appeal from the Guardianship Division Decision of: A Britton, Deputy President; J Moir, Senior Member (Legal); Dr B McPhee, Senior Member (Professional) Catchwords: APPEAL — NCAT — decision to renew and vary initial guardianship order — decision to add access function to initial guardianship order — decision to give Public Guardian an access function GUARDIANSHIP — appointment of guardian —criteria for appointment of guardian — whether Tribunal misstated test for appointment of guardian in s 17(1)(c) of the Guardianship Act 1987 (NSW) — whether Tribunal misapplied s 17(1)(c) of the Guardianship Act — whether error made by Tribunal material PROCEDURAL FAIRNESS — apprehended bias — principles LEAVE TO APPEAL — principles governing under s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) WORDS AND PHRASES — meaning of phrase “able to exercise the functions conferred or imposed by the proposed guardianship order” in s 17(1)(c) of the Guardianship Act 1987 (NSW) |
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Duplex Australia Pty Limited v Hathaway No 2 [2025] NSWCATAP 11 Appeal from the Consumer and Commercial Division - Home Building Decision of: P H Molony, Senior Member; D G Fairlie, Senior Member Catchwords: Costs – claim determined in Commercial and Consumer Division for an amount in excess of $30,000 – application of rule 38 Civil and Administrative Tribunal Rules 2014 (NSW) and rule 38A on internal appeal – whether rules 38 and 38A inconsistent with s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) – no inconsistency |
Jav Automotive Pty Ltd v Livermoore [2025] NSWCATAP 12 Appeal from the Consumer and Commercial Division Decision of: R C Titterton OAM, Senior Member; D Goldstein, Senior Member Catchwords: APPEALS — whether Tribunal decision not fair and equitable — whether Tribunal decision against the weight of the evidence |
Bele-Verdy v The North Coast Community Housing Company Ltd [2025] NSWCATAP 13 Appeal from the Consumer and Commercial Division - Social Housing Decision of: D Robertson, Principal Member; A Boxall, Senior Member Catchwords: LEASES AND TENANCIES - Residential Tenancies Act 2010 (NSW) – Application for issue of warrant determined in the absence of the appellant – The outcome would not have been different if the appellant had been present – Any breach of procedural fairness was not material |
Lim v The Owners – Strata Plan No 51159 [2025] NSWCATAP 14 Appeal from the Consumer and Commercial Division Decision of: K Ransome, Principal Member; D Ziegler, Senior Member Catchwords: APPEAL – strata scheme – removal of screen door to lot by owners corporation – fire safety requirements – whether owners corporation entitled to remove door - conduct of hearing before Tribunal – whether denial of procedural fairness – whether reasons inadequate – constructive failure to exercise jurisdiction |
Boscolo v New South Wales Land and Housing Corporation [2025] NSWCATAP 15 Appeal from the Consumer and Commercial Division Decision of: S Higgins, Senior Member; L Andelman, Senior Member Catchwords: LEASES AND TENANCIES – social housing residential tenancy agreement (tenancy agreement) – termination for breach of tenancy agreement – failure to keep residential premises in a reasonable state of cleanliness – hoarding – clauses 14 and 43(1) of the tenancy agreement – whether hoarding clause is void APPEALS – adjournment of hearing – denial of procedural fairness |
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Yeh v Bazdaric Homes Pty Ltd; Bazdaric Homes Pty Ltd v Yeh [2025] NSWCATAP 17 Appeal from the Consumer and Commercial Division Decision of: S Westgarth, Deputy President; D Goldstein, Senior Member Catchwords: Appeal – building and construction dispute – assessment of damages due following breach by builder to comply with its contractual obligations – whether the homeowners had proven loss – whether the builder had displaced the “ruling principle” by evidence that the homeowners had failed to mitigate or had acted in breach of the principles described in Bellgrove v Eldridge. |
McWilliam v Chee [2025] NSWCATAP 18 Appeal from the Consumer and Commercial Division Decision of: K Ransome, Principal Member; D Robertson, Principal Member Catchwords: APPEAL – refusal of adjournment – whether denial of procedural fairness – whether utility in allowing appeal |
Yu v Hawat [2025] NSWCATAP 20 Appeal from the Consumer and Commercial Division Decision of: K Ransome, Principal Member; D Robertson, Principal Member Catchwords: LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – Reduction in rent by reason of the reduction or withdrawal by the landlord of goods, services or facilities provided with the premises – Liability of tenant for blockage to kitchen sink due to accumulation of fat and oil – No error in conclusion that landlord had not proved that the tenant was responsible. |
Singh v Ellis [2025] NSWCATAP 21 Appeal from the Consumer and Commercial Division - Residential Tenancy Decision of: G Burton SC, Senior Member; P Molony, Senior Member Catchwords: LANDLORD and TENANT – RESIDENTIAL TENANCY – rental bond claim by landlord – alleged denial of procedural fairness – change of landlord communication details – validity and service of termination notice – vacant possession and return of keys – Residential Tenancies Act 2010 (NSW) ss 27, 53(1)(e), 97, 113, 223 – Interpretation Act 1987 (NSW) s 3 and Sch 4 “document”, s 76 |
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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. |
