| |
|
| | NCAT Appeal Panel Decisions Digest Issue 10 of 2020
|
| 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 November 2020: - Wojciechowska v Commissioner for Police [2020] NSWCATAP 239 – in which the Appeal Panel dismissed an appeal and the application for a stay by the appellant, who sought to challenge the order of the Tribunal at a case conference to list the matter for a hearing by telephone. The matter dealt with the application of NCAT’s COVID-19 Changes to Procedures, and the appellant’s submissions requesting an ‘in person’ hearing were found to be unsuccessful.
- Rurik v Travers [2020] NSWCATAP 242 – in which the Appeal Panel allowed the appeal of Rurik, who occupied a boarding house owned by the corporate respondent, Travers, because the Tribunal made an error of law in saying that s 16(1) of the Civil Liability Act 2002 (NSW) was applicable to the appellant’s damages claim. The appeal was allowed and remitted to a differently constituted Tribunal for a new hearing.
- LSH Auto (Sydney) Pty Ltd v Sherman [2020] NSWCATAP 246 – in which the Appeal Panel allowed an appeal by way of a new hearing by LSH Auto (Sydney) Pty Ltd, a car dealer that sold a new luxury vehicle to the respondent, Mr Sherman, with which he experienced faults rendering the car not safe. The Appeal Panel found the Tribunal had not properly considered the question of whether the vehicle was “unsafe” under the Australian Consumer Law, but found alternative avenues for upholding the Tribunal’s orders.
- Maygood Australia Pty Ltd v The Owners – Strata Plan No 85338 [2020] NSWCATAP 237 – in which the Appeal Panel allowed in part the appeal of Maygood Australia Pty Ltd, the developer of a building that would become Strata Plan No 85338, owned by the respondent, which was found to have several defects, including “drummy” tiles.
- Rosenthal v The Owners – Strata Plan No 20211 [2020] NSWCATAP 251 – in which the Appeal Panel allowed an appeal by the appellants, the Rosenthals, seeking to have set aside orders by the Tribunal that neither party had requested. The appellant was a lot owner, whose property was damaged as a consequence of the respondent owners corporation’s failure to maintain the common property.
Each case title is hyperlinked to the full decision available on NSW Caselaw.
|
| |
| Administrative and Equal Opportunity Division
S Westgarth, Deputy President; L Pearson, Principal Member
In sum: The Appeal Panel dismissed an appeal and the application for a stay by the appellant, who sought to challenge the order of the Tribunal at a case conference to list the matter for a hearing by telephone.
Facts: In November 2019 the respondent, the Commissioner for Police, refused a request for access to information under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) made by the appellant. In May 2020 the appellant applied to the Tribunal for administrative review of this decision ([3]).
At a second case conference in July 2020, orders were made for the parties to file and serve their evidence and submissions before the hearing in October 2020. The appellant requested written reasons, but the Registrar refused in August 2020, as the July directions did not fall within the parameters of s 62 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) ([4]-[7]).
In August 2020 the appellant lodged an internal appeal application and an application for stay of the original decision pending appeal. The appellant challenged order 5 from July 2020, which ordered the matter be listed for telephone hearing on 20th October 2020. The appellant said that order 5 is not an interlocutory decision, because there was no properly constituted Tribunal, and the order was not made under the NCAT Act or other legislation. The appellant said that if leave is required, it is appropriate to grant it because the appellant was ambushed by order 5, she is not responsible for COVID-19 and so should not have to bear its consequences, and the matter is not so urgent as to deprive her of the opportunity to appear in person. The appellant said the only reason for the pressing of the hearing by phone is that it is in the interests of the respondent if the appellant cannot cross examine the witness effectively ([8], [10]).
Held (dismissing the appeal and the application for a stay):
Whether order 5 was made within the scope of the Tribunal’s case management powers - YES
(i) The appellant submits that Order 5 was a “decision” for the purposes of s 5 of the NCAT Act, not an interlocutory decision as defined in s 4, and as there was no hearing the appellant submits that s 50, which requires hearings for all proceedings, bar limited exceptions, was not complied with ([27], [33]-[34]).
(ii) The COVID-19 pandemic has affected the Tribunal’s management of hearings in 2020; all stages of hearings have been conducted by phone, audio visual link or on the papers since 30 March 2020. The President confirmed this would continue until December 2020, with face to face hearings only available subject to prior approval by the President. The appellant contends that a telephone hearing breaches the open justice principle and s 49 of the NCAT Act, which requires hearings to be open to the public unless the Tribunal orders otherwise ([36], [42]).
(iii) The appellant submitted that to the extent that the Tribunal’s COVID-19 Changes to Procedures can be viewed as “procedural rules,” their content does not support Order 5 because no urgency had been demonstrated, and there was no consent of both parties for a hearing by telephone. To the extent that they forbid in person hearings, the changes are not authorised under the NCAT Act because of the obligations of procedural fairness under s 38 ([37]).
(iv) The listing of the hearing as via telephone was within the procedural powers conferred on the Tribunal by s 38(1). It was consistent with the way in which the Tribunal has had to manage its workload in accordance with the COVID-19 restrictions on movement and gatherings of people; and was consistent with the mandate in s 36(1) and (4) that the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings. In listing the matter for hearing by telephone, Order 5 did not affect the operation of s 49 of the NCAT Act, which provides that a hearing of the Tribunal is to be open to the public unless the Tribunal orders otherwise.
Whether there was a denial of procedural fairness – NO
(v) The appellant contends that Order 5 was made with no notice that it was proposed, as she had grounds to believe, based on the June case conference, that the issue of the mode of hearing had been settled in favour of waiting for when a hearing in person could be conducted ([47]).
(vi) There is no dispute that s 38(5) and the general law rules of procedural fairness require the Tribunal to ensure each party has had a reasonable opportunity to appear and put their case before the Tribunal and have their submissions considered. The transcript of the case conference confirms that the appellant was heard on every issue relevant to the further progress of her review applications and the directions to be made. The fact that the Tribunal did not make directions in accordance with the appellant’s expressed opinion did not mean that the appellant was deprived of an opportunity to be heard on those issues ([53]-[54]).
(vii) In contending that Order 5 was affected by bias, the appellant points to the lack of notice; an attempt to hide the order where the telephone connection was not good and where she is not a native speaker of English; non compliance with ss 50 and 38 of the NCAT Act; failure to ask why the appellant was objecting; inconsistency with a prior decision that another GIPA application not be heard by telephone; failure to address the appellant’s request for a summons including a document filed shortly before the case conference began; and the Senior Member’s prior association with the Crown Solicitor’ Office, which is representing the respondent. The appellant further contends that the Senior Member reintroduced the topic of the order without any request from a party and in doing so engaged in the proceeding as if he were a party ([48]).
(viii) An apprehension of bias will exist if a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the issues in dispute. The use of the word “might” in both limbs of the test connotes the concept of a real chance or a realistic possibility, falling short of a probability. An allegation of actual bias must be distinctly made and clearly proved and a finding of actual bias, in the sense that the decision-maker’s mind is closed to persuasion, is not made lightly ([55]-[56]).
(ix) There is no basis for finding apprehended or actual bias. None of the grounds submitted by the appellant to assert bias would form the basis on which a fair minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial mind to the issues requiring resolution. Such a fair minded lay observer would also need have regard to the necessity of the Tribunal facilitating the “just, quick and cheap” resolution of the real issues in dispute, and the contextual pandemic affecting the Tribunals conduct of in person hearings ([57], [58]).
Whether there was a failure to take into account relevant considerations – NO
(x) The appellant contends that the appellant was not given a chance to present evidence as to why the hearing should not proceed by telephone, and the Tribunal was aware that the appellant wanted to issue a summons, which was not taken into consideration ([60]).
(xi) There is no basis for this ground of appeal. The appellant was provided an opportunity to make submissions on the issue of a telephone hearing. The matter of the summons was factored into the determination of the timetable, and the Tribunal concluded the case conference by indicating that it would follow that up. The fact that the appellant disagrees with the Tribunal’s case management decisions does not mean that there was any failure to have regard to relevant considerations ([63]).
|
| Consumer and Commercial Division - Consumer Claim
P Durack SC, Senior Member; D Robertson, Senior Member
In sum: The Appeal Panel allowed the appeal of Rurik, who occupied a boarding house owned by the corporate respondent, Travers, because the Tribunal made an error of law in saying that s 16(1) of the Civil Liability Act 2002 (NSW) was applicable to the appellant’s damages claim.
Facts: The appellant occupied a boarding house in Sydney, owned by the corporate respondent. The appellant alleges the termination of this occupancy was wrongful, and made claims of mental distress ([1], [4]).
The Tribunal concluded it had no jurisdiction to hear the application, because the application had been brought after a delay of 3 months, i.e. outside the 28 day time limit established in r 23(3)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules). The Tribunal indicated that the decisive reason for not extending time was that the claim had no prospects of success, as there was no evidence from which the Tribunal could conclude that the severity of the applicant’s loss arising from the alleged “psychological injury” was at least 15% of the most extreme case, as per s 16(1) of the Civil Liability Act 2002 (NSW) (CLA) ([3]-[5]).
Held (allowing the appeal and remitting to a differently constituted Tribunal for a new hearing):
(i) Until recently, the Tribunal’s opinion as to the meaning of s 16(1) of the CLA accorded with Court of Appeal authority in NSW, discussed in Insight Vacations Pty Limited v Young [2010] NSWCA 137 per Spigelman CJ at [78]-[79] and Basten JA at [125]. However, in Moore v Scenic Tours Pty Ltd [2020] HCA 17; 94 ALJR 481; 377 ALR 209 the High Court reached a conclusion contrary to this authority and found that s 16(1) of the CLA did not apply to a claim for mental distress (and disappointment) because it was not a claim for personal injury within the meaning used in Part 2 of the CLA and it was not a claim for non-economic loss within the meaning used in s 16(1) ([10]-[11]).
(ii) The plurality in Moore defined “personal injury” at [40]-[41] for the purposes of Part 2 of the CLA:
Mr Moore submitted that his claim for damages for disappointment and distress for breach of contract falls outside Pt 2 of the CLA because the damages he claimed by way of compensation for his disappointment and distress do not relate to personal injury. He argued that a reaction of disappointment and distress to the breach of such a promise – a promise that had been bought and paid for – is a normal and healthy response to that disappointment rather than an impairment of the plaintiff's mental condition. It was said that the disappointment of a contractual expectation of recreation, relaxation and freedom from molestation is not “impairment” of a person's mental condition within the meaning of “injury” in s 11; nor is it “non-economic loss” under s 3 of the CLA. There is force in this submission.
Disappointment at a breach of a promise to provide recreation, relaxation and peace of mind is not an “impairment” of the mind or a “deterioration” or “injurious lessening or weakening” of the mind. Frustration and indignation as a reaction to a breach of contract under which the promisor undertook for reward to provide a pleasurable and relaxing holiday is, of itself, a normal, rational reaction of an unimpaired mind. In this regard, Mr Moore's claim for damages for his disappointment and distress resulting from Scenic's breach of contract can be seen as no more a claim relating to personal injury than would be a claim for damages for the indignation occasioned by false imprisonment or defamation. As was said in New South Wales v Williamson by French CJ and Hayne J, with whom Kiefel J agreed, while there may be cases where an act of false imprisonment itself causes psychiatric injury, insofar as an action for false imprisonment claims damages for loss of dignity and harm to reputation associated with the deprivation of liberty it is not a claim for an “impairment of a person's physical or mental condition” or otherwise a form of injury within s 11 of the CLA ([12]).
(iii) At [46] Moore also discussed the meaning of “non-economic loss” used in s 16, and defined in s 3 of the CLA:
Disappointment and distress of this kind is not “non‑economic loss” under Pt 2 of the CLA. The text and structure of Pt 2 of the CLA are clear that non‑economic loss within Pt 2 is a head of loss associated with personal injury as pain and suffering. At common law, “pain and suffering” was understood to mean actual physical hurt occasioned by the accident or its aftermath; and damages for emotional harm were not recoverable unless a psychiatric injury was suffered. Similarly, the assessment of damages for “loss of amenities of life” invites a comparison between the ability of a person to enjoy life before and after the personal injury. But in the present case, no physical injury was alleged and no psychiatric illness was alleged to have resulted from the breach of the consumer guarantees in the ACL. The exception to the general rule relating to promises of enjoyment, relaxation or freedom from molestation, breach of which results directly in disappointment and distress, compensates a plaintiff for what he or she was promised where the expectation of a peaceful and contented holiday has been unfulfilled. The comparison between “the expectations against the reality” does not involve any reference to, or assessment of, an impairment to the plaintiff's mental condition ([13]).
(iv) In view of the decision in Moore, it is clear that the Tribunal made an error of law in saying that s 16(1) of the CLA was applicable to the damages claim before it ([15]).
|
| Consumer and Commercial Division - Motor Vehicles
A Suthers, Principal Member; D Charles, Senior Member
In sum: The Appeal Panel allowed an appeal by way of a new hearing by LSH Auto (Sydney) Pty Ltd, a car dealer that sold a new luxury vehicle to the respondent, Mr Sherman, with which he experienced faults rendering the car not safe.
Facts: In February 2019 the respondent, Mr Sherman, bought a new luxury vehicle from the appellant, LSH Auto (Sydney) Pty Ltd, for $203,987.89. Mr Sherman encountered ongoing difficulties with the operation of the vehicle, including with the parking (proximity) sensors and speed limit indicator. The brakes and cosmetic appearance of the car also had faults ([1]-[2]).
Mr Sherman commenced proceedings at NCAT after several attempts to have the faults resolved with the appellant. In September 2019 consent orders were made after a conciliation conference wherein the appellant consented to orders that it collect, inspect and repair the vehicle in respect of the identified faults (“the First Decision”). After the vehicle was returned, the respondent continued to experience problems with the parking sensors and speed limit indicator, and renewed proceedings in the CCD. At the hearing, the fact that several of the identified faults remained in the vehicle does not appear to have been disputed. The Tribunal ordered the appellant replace the vehicle with another vehicle of the same type (the Decision) ([3]-[5], [10]-[11]).
The appellant argues that the Tribunal’s orders were made in error, and were inconsistent with the evidence and the factual findings the Tribunal made. It also challenges an interlocutory decision of the Tribunal, made during the hearing but not reflected in the written reasons, to reject an application by the appellant to join the company which imports and distributes Mercedes Benz vehicles into Australia (“the Distributor”) ([17]-[18]).
Held (allowing the appeal by way of a new hearing):
Whether the Tribunal erred in not allowing the appellant’s interlocutory application to join the Distributor in the renewal proceedings – NO
(i) The appellant argued in its first ground of appeal the Tribunal erred in not allowing its interlocutory application to join the Distributor in the renewal proceedings. If the appellant sought the involvement of the Distributor in the proceedings, that should have occurred prior to the First Decision. Axiomatically, joining the Distributor was not an order the Tribunal could have made when the matter was originally determined by making the First Decision, as joining the Distributor would not have ‘determined’ the proceedings. It was not open to the appellant to join the Distributor in the renewal proceedings, and therefore the Tribunal made no error ([27], [41], [44]-[45]).
Whether the Tribunal erred in finding that the advisory speed limit system and proximity sensor faults rendered the vehicle unsafe, in circumstances where the Tribunal also found that the issues were not issues of roadworthiness – YES
(ii) The appellant’s second ground was that it was not open to the Tribunal to find that the advisory speed limit system and proximity sensor faults rendered the vehicle unsafe, in circumstances where the Tribunal also found that the issues were not issues of roadworthiness ([28], [46]-[48]).
(iii) The term “roadworthy” is not synonymous with “safe,” and the Tribunal did not use the word “roadworthy” as synonymous with “safe”. An order for the return or replacement of the vehicle on the basis that s 260(e) of the ACL is engaged and there has been a major failure on the basis of safety, must be predicated on a finding that the vehicle, is “unsafe”. The finding was a statutory condition which must necessarily be determined before the Tribunal ordered the vehicle be replaced. The Tribunal made no specific finding in its reasons that the vehicle was unsafe, and fell into error on a question of law by failing to turn its mind to the correct question. The Appeal Panel rejects the respondent’s submission that it can be inferred that the Tribunal found the vehicle to be unsafe ([52]-[55], [58]-[62]).
Whether the Tribunal erred in finding the sole basis for the rejection of the vehicle being that it was “unsafe,” when that finding is inconsistent with the Tribunal’s finding that the vehicle is roadworthy – YES
(iv) The appellant argues the reasons indicate that the sole basis in s 260 of the ACL for the rejection of the vehicle in the circumstances must have been as contained in subparagraph (e) of that section, in that “the goods are not of acceptable quality because they are unsafe” but that such a finding is inconsistent with the Tribunal's other findings that the vehicle is roadworthy. For the reasons set out in respect of the above “Safety Ground,” the appellant is correct to assert that the Tribunal erred in its decision in respect of ordering the replacement of the vehicle on the basis that it was unsafe ([29], [63]).
Whether the appellant was precluded from rejecting the vehicle as it had been damaged after being delivered to him, for reasons not related to the state or condition of the vehicle at the time of supply – NO
(v) In the alternative to the above “Rejection Ground”, the appellant says that the appellant was precluded from rejecting the vehicle as it had been damaged after being delivered to him, for reasons not related to the state or condition of the vehicle at the time of supply, under s 262(c) of the ACL ([30], [64]).
(vi) This argument was not raised in the proceedings below as disentitling the respondent from rejecting the vehicle. Therefore the Appeal Panel refuses to allow it to be raised on appeal for the first time. This is particularly important where Mr Sherman may have led more evidence as to the nature of the damage and thoroughness of the repair had he been challenged on this issue ([67]).
Whether there exist alternative avenues of reasoning which could have led the Tribunal to the same orders it ultimately made for the return and replacement of the vehicle - YES
(vii) The first alternative avenue exists in s 259(2)(b)(ii) of the ACL, which provides an action for a remedy to consumers even where a breach of the guarantee can be remedied or is not a major failure, in circumstances where:
a. the consumer requests the supplier to remedy the failure within a reasonable time; and
b. the supplier fails to remedy the failure or fail to do so in a reasonable time ([72]).
(viii) Prima facie, the appellant had proper and timely notice of the faults in the vehicle, was requested by the respondent to remedy them, and failed to do so in the requisite time period. There does not appear to be any dispute that the respondent gave notice that the vehicle was rejected and the grounds for the rejection ([74]).
(ix) The second alternate avenue which may have been available is provided for in s 260(a) of the ACL, if the vehicle would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure, as this would also constitute a major failure ([75]).
(x) Both avenues would be precluded if the appellant is correct in respect of its argument as to the application of s 262 of the ACL, however other remedies would be available to the respondent. The merit of the Safety Ground and the Rejection Ground mean the appeal should be dealt with by way of a new hearing. This would be a new hearing of the renewal application only ([76]-[78]).
|
| Consumer and Commercial Division - Home Building
G Blake AM SC, Senior Member; D Robertson, Senior Member
In sum: The Appeal Panel allowed in part the appeal of Maygood Australia Pty Ltd, the developer of a building that would become Strata Plan No 85338, owned by the respondent.
Facts: Maygood Australia Pty Ltd (Maygood) was the developer of a building work. Upon completion of the work, the owners corporation found several defects with the property, including “drummy” tiles and fire dampers non-compliant with the Building Code of Australia ([2], [4]).
The Owners were awarded $71,742.71 by NCAT in December 2019 for the drummy tiles, fire dampers and nine other defects. The amount awarded included a 25% builders’ margin and 10% GST. It was agreed by the parties that the builders’ margin should not apply to the $18,768 for the defective tiles that were replaced by The Owners, and that in that respect, if Maygood did not succeed on other grounds of appeal challenging the whole of the judgment or the award of compensation in respect of the tiles, the amount of the judgment should be adjusted by the deduction of the 25% builders’ margin and GST on that margin. The agreed adjustment was $5,161 ([5]-[6]).
Held (allowing the appeal in part):
Whether the Tribunal had jurisdiction to hear and determine the application because the Owners did not comply with the requirements of s 48J of the HBA – YES
(i) Although s 48J of the Home Building Act 1989 (NSW) (HBA) requires either (a) the Principal Registrar be satisfied that the subject matter has been investigated under Division 2 of Part 3A by Fair Trading, or (b) the President directs the claim to be accepted without such an investigation, neither of these eventualities occurred. Nor does the claim fall into one of the nine categories under NCAT Procedural Direction 5 “Acceptance of Home Building Claims”, which the President has directed should be accepted even if the s 48J(a) has not been satisfied ([18]-[20]).
(ii) The appellant’s claims that s 48J should be read similarly to s 48K are rejected. Section 48K specifically provides in its subsections that “the Tribunal does not have jurisdiction” in respect of various conditions. The context of s 48J includes the contrasting and specific provisions of s 48K, which uses explicit words to deny the Tribunal jurisdiction. There is no reason to conclude that, where the Tribunal does not use specific words denying the Tribunal jurisdiction, the Tribunal is nevertheless intended not to have jurisdiction. The terms of s 48J are addressed to the Principal Registrar. It would not be appropriate that the Tribunal should be required to investigate whether the Principal Registrar had been relevantly satisfied ([32], [36], [39], [50]).
Whether the Tribunal erred in law by refusing to permit Maygood to amend its pleading and rely on a second affidavit from its director (Mr Koo) – NO
(iii) Maygood sought to amend its pleading to the effect that the balcony tiles, which were said to have been “drummy” and which the Owners had replaced, were not common property and that therefore the Tribunal had no jurisdiction to award compensation to the Owners in respect of any defect in the tiles. Parts of the proposed amendment were allowed but, critically, Maygood was refused leave to rely upon that part of the proposed amended paragraph which alleged items, including the drummy tiles, were not common property ([52], [57]).
(iv) The Tribunal considered the three month period which had elapsed since the filing of the Amended Points of Claim and the fact that the proposed paragraph 18(c) raised an issue which had “been on the table since Day One”; that the parties had been represented since the commencement of the proceedings by legal representatives; and that the issue was a matter that it would have been appropriate to have raised well before the hearing ([59]).
(v) The Tribunal’s decision to refuse Maygood leave to rely upon the Amended Points of Defence was a discretionary decision, subject to appellate review only on the bases that some error has been made in exercising the discretion, as per the High Court in House v R [1936] HCA 40; (1936) 55 CLR 499 at [504] ([75]).
(vi) The Appeal Panel did not consider it necessary to determine whether the balcony tiles were in fact common property. In the absence of specific notation on the strata plan, by virtue of s 6(1)(a)(ii) of the SSDA, the tiles would constitute common property. The resolution of the issues surrounding whether the tiles were common property would involve factual investigations which the Tribunal was not required to undertake, as the issue had not been appropriately raised by Maygood. As such the second ground fails ([70], [79], [82]-[83]).
Whether the Tribunal made an error of law in finding that Maygood was liable to pay the cost of retiling the balcony when there was no evidence to support that finding, or the decision was against the weight of the evidence – NO
(vii) Grounds 3 and 4 centred upon the question of who carried out the tiling work for the balcony of lot 801, which the Tribunal accepted was defective and had been replaced by the Owners in 2017. Maygood maintained the work had been carried out by the then occupant of the lot, but The Owners claim the work was performed by Maygood, the builder they were responsible for, or a contractor engaged by Maygood ([84], [86]).
(viii) Emails between Mr Koo, a director of Maygood, his wife and the then owner of lot 801, were submitted as evidence and clearly indicate Maygood acknowledged responsibility for rectifying the issue. No direct evidence indicated that Mr Nicholas or any other person not contracted to do the task by Maygood replaced the tiles. As such the Tribunal was entitled to infer Maygood had retained a contractor to replace the tiles. The Appeal Panel was not satisfied that the Tribunal’s conclusion was against the weight of the evidence, or that Maygood may have suffered a substantial miscarriage of justice ([89]-[92], [97]-[98], [100], [103]).
Whether the Tribunal erred in its calculation of compensation to be paid for the retiling of the balcony – YES
(ix) This ground was conceded by the respondent ([105]).
Whether the Tribunal made an error on a question of law and/or alternatively made a finding against the weight of evidence in making an award of damages in respect of the fire dampers – NO
(x) Maygood submits that in circumstances where the experts had inspected only seven units, the Owners could not have satisfied the onus of proof that all 36 dampers were missing breakaway joints. The extrapolation of a conclusion from an examination of a sample of substantially similar items is a common method of analysis and, although there will be circumstances where such extrapolation is not appropriate, Maygood did not identify any logical reason or evidence to suggest why that process was not appropriate in this case. Accordingly, the Appeal Panel was not satisfied that Maygood had suffered a substantial miscarriage of justice such as to warrant leave to appeal ([115], [123], [126]).
|
| Consumer and Commercial Division - Strata
M Harrowell, Deputy President; G Blake AM SC, Senior Member
In sum: The Appeal Panel allowed an appeal by the appellants, the Rosenthals, seeking to have set aside orders by the Tribunal that neither party had requested.
Facts: The appellant claims the respondent failed to repair and maintain common property, and consequently water leaks and other issues affected Lot 64, owned by the appellants. Work orders were made by the Tribunal in August 2017, and subsequently the Owners Corporation made applications seeking an extension of time to comply.
The Owners Corporation filed an application for substantive relief, seeking an order under s 149(1) of the Strata Schemes Management Act 2015 (NSW) (SSMA) to make a common property by-law which would impose obligations on the Rosenthals to pay for the maintenance of past works carried out to their lot, which were said to have been unauthorised and to have affected, or which could affect, the good and serviceable repair of the common property. They also made an interim application, requiring the Rosenthals to provide the Owners Corporation with access to their lot ([4]-[6]).
Directions for both the interim and substantive applications were given in May 2019, and the Tribunal ordered in order 2 an extension for the date of compliance with the previous orders, and in order 3 that the Rosenthals provide the Owners Corporation with access to their lot, pursuant to s 124 of the SSMA. In August 2020 the Tribunal dismissed the application under s 149(1) and made a further order for access ([7], [9]-[10]).
The Rosenthals in the meantime lodged a further application, seeking to renew proceedings under Sch 4 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), because, they contended, the Owners Corporation had failed to complete the work required by the Work Order by the due date of 23 August 2019. The Rosenthals also appealed the access order ([12]-[13]).
Held (allowing the appeal and granting leave to the appellants to amend the notice of appeal):
(i) It is clear from the documents and the Reasons of the Tribunal that the parties were not afforded an opportunity to make submissions in respect of the access order made by the Tribunal. This is an error of law for which there is a right of appeal under s 80(2)(b) of the NCAT Act ([19]).
(ii) This issue of whether order 3 made in May 2020 was a final order is relevant in determining what relief should be granted in this appeal. If order 3 was an interim order, it might be appropriate for the Appeal Panel to remit the proceedings to the Tribunal in order to decide what, if any, final relief should be granted in respect of access. Alternatively, if order 3 is properly construed as a final order, it would be inappropriate to remit the proceedings as the issue of access was finally resolved on that date ([22]).
(iii) A court or Tribunal may have regard to extrinsic material, including the reasons for judgment, where an order is ambiguous. However, such evidence is not admissible to contradict the language of the instrument when it has a plain meaning. In the present case, order 3 was a final order, and not an interim order as contended by the appellant, and there is no ambiguity necessitating the admission of extrinsic material to aid its construction ([27]-[28]).
(iv) The fact that it was a final order is corroborated by order 4, which confirms that the only issue remaining in connection with access is who should bear the costs for the removal of various disputed works in the Rosenthals lot, if not otherwise agreed. Otherwise, there was no ambiguity in terms of what access was permitted, and the fact it was unlimited in time does not create any relevant ambiguity, as access was granted for the specific purpose of carrying out particular work ([21], [23], [26]-[28], [31]).
(v) The fact that the access order being a final order may have an impact on the renewal proceedings and the issue of which party has complied with relevant orders of the Tribunal is irrelevant to its proper construction. Such issues do not arise for determination in this appeal and are matters which remained to be dealt with, if relevant, in the renewal proceedings.
(vi) Order 1 made by the Tribunal in August 2020 was in different terms to consent order 3 made in May 2020. Order 3 granted access by reference to the scope of work established in the evidence. Order 1 of August 2020 granted access by reference to the Work Order made by the Appeal Panel. Order 1 was not sought by the Owners Corporation at the hearing of the substantive proceedings. To allow that order to stand may permit the Owners Corporation to take advantage of an order improperly made after the date required by the Work Order as an excuse for any non-compliance with the Work Order ([39]).
|
|
|
| | | | Gelder v The Owners – Strata Plan No 38308 [2020] NSWCATAP 227 Consumer and Commercial Division - Strata
Decision of: S Westgarth, Deputy President; S Goodman SC, Senior Member
Catchwords: LAND LAW – strata title – common property – common property rights by-law – whether unreasonable refusal to consent – errors of law
|
| Consumer and Commercial Division - Consumer Claim
Decision of: G Curtin SC, Senior Member; A Boxall, Senior Member
Catchwords: LAND LAW – strata title – strata managing agent – fees– no evidence of work done for and reasonableness of fees charged – work for which fees charged included in annual base fee |
| Consumer and Commercial Division - Home Building
Decision of: P Durack SC, Senior Member; D Robertson, Senior Member
Catchwords: APPEALS – COSTS-costs follow the event-mixed success for each party |
| Consumer and Commercial Division - Tenancy
Decision of: L Pearson, Senior Member; S Thode Senior Member
Catchwords: APPEAL – Residential Tenancy - findings of fact – failure to deal with issues in dispute |
| Consumer and Commercial Division - Consumer Claim
Decision of: S Westgarth, Deputy President; D Robertson, Senior Member
Catchwords: CONSUMER CLAIM – s60 Australian Consumer Law – onus of proof
|
| Consumer and Commercial Division - Tenancy
Decision of: D Robertson, Senior Member; S Thode Senior Member
Catchwords: LEASES AND TENANCIES – residential tenancies – social housing – consent order for termination – whether consent order could be set aside
|
| | Ashton v Stevenson; Stevenson v Ashton [2020] NSWCATAP 233 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 – major element – caused or likely to cause the inability to inhabit the building or part of the building or the destruction of the building or part of the building or a threat of collapse of the building or part of the building. – meaning of waterproofing – evidence relevant to determination of whether defect likely to cause prescribed consequences
APPEALS – leave to appeal – substantial miscarriage of justice – new evidence following completion of work subsequent to determination of claim
|
| Consumer and Commercial Division - Motor Vehicles
Decision of: K Rosser, Principal Member; M Gracie, Senior Member
Catchwords: APPEAL - NCAT - notice of appeal out of time - leave to appeal - application to rely on fresh evidence - expert evidence - no error of law - no substantial miscarriage of justice - leave refused
|
| Consumer and Commercial Division - Tenancy
Decision of: G Curtin SC, Senior Member; R Titterton OAM, Senior Member
Catchwords: LANDLORD AND TENANT – residential tenancies legislation – abandonment by the tenant – landlord’s remedies on abandonment – compensation – discretion to refuse – discretion not exercised
ADMINISTRATIVE LAW – NSW Civil and Administrative Tribunal - appeal from discretionary decision - House v R errors – alleged error that result so unreasonable or unjust that error must have occurred premised on the reasons not explaining the result reached
|
| Consumer and Commercial Division - Consumer Claim
Decision of: P Durack SC, Senior Member; G Curtin SC, Senior Member
Catchwords: CONSUMER CLAIM-supply of services-appeal-failing to ask the right questions as to the applicable causes of action-error of law-adequacy of reasons
|
| Consumer and Commercial Division - Home Building
Decision of: G Blake AM SC, Senior Member; D Robertson, Senior Member
Catchwords: BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – Building dispute – Tribunal powers – Whether the Tribunal had jurisdiction to determine an application which had been accepted despite the absence of an investigation by Fair Trading NSW or a direction by the President
PRACTICE AND PROCEDURE – Whether it was an error of law for the Tribunal to refuse a party leave to amend its Points of Defence at the final hearing
|
| Consumer and Commercial Division - Social Housing
Decision of: L Pearson, Principal Member; S Thode, Senior Member
Catchwords: APPEAL – residential tenancy – social housing – mould – expert report obtained by landlord – report not provided to tenant – production on appeal under summons – whether access should be granted – whether substantial new evidence not reasonably available – whether decision not fair and equitable
|
| | Wojciechowska v Commissioner of Police [2020] NSWCATAP 239 Administrative and Equal Opportunity Division
Decision of: S Westgarth, Deputy President; L Pearson, Principal Member
Catchwords: APPEAL – case management – listing for hearing by telephone – whether power to make order – whether procedural requirements complied with – whether denial of procedural fairness – whether relevant considerations taken into account
|
| Consumer and Commercial Division - Home Building
Decision of: K Rosser, Principal Member; D Goldstein, Senior Member
Catchwords: COSTS – Calderbank Offer – Apportionment of costs
|
| Consumer and Commercial Division - Strata Decision of: G Curtin SC, Senior Member; R Titterton OAM SC, Senior Member
Catchwords: COSTS – party/party – disbursements – disbursements of respondent paid out of strata manager’s trust fund from funds deposited by appellants pursuant to special by-law – whether disbursements were the appellants’ costs of the proceedings – not the appellants’ costs of the proceedings – authority of respondent to use trust funds to pay its disbursements doubted
|
| Consumer and Commercial Division - Consumer Claim
Decision of: P Durack SC, Senior Member; D Robertson, Senior Member
Catchwords: APPEAL - termination of boarding house occupancy agreement - other alleged breaches of occupancy principles in the Boarding Houses Act 2012 - claim for distress - error of law in concluding s 16 of the Civil Liability Act applied
|
| Consumer and Commercial Division - Tenancy Decision of: S Westgarth, Deputy President; D Robertson, Senior Member Catchwords: LEASES AND TENANCIES – Residential tenancies – Entitlement to payment of bond – Onus of proof of landlord’s claim to payment
|
| Consumer and Commercial Division - Tenancy
Decision of: T Simon, Principal Member; S Goodman SC, Senior Member
Catchwords: LEASES AND TENANCIES – leases and tenancy agreements – construction and interpretation
ADMINISTRATIVE LAW – particular administrative bodies – NSW Civil and Administrative Tribunal – existence of jurisdictional facts
|
| Consumer and Commercial Division - Strata
Decision of: T Simon, Principal Member; S Higgins, Senior Member
Catchwords: APPEAL – appeal from a cost order made under s 60 of the Civil and Administrative Tribunal Act 2013
|
| Consumer and Commercial Division - Motor Vehicles
Decision of: A Suthers, Principal Member; D Charles, Senior Member
Catchwords: APPEAL – Consumer Claim – s 262 of the Australian Consumer Law – joinder in renewal proceedings – appeal to be dealt with by way of new hearing
|
| Guardianship Division
Decision of: Boland ADCJ, Deputy President; M D Schyvens, Deputy President; Dr M Wroth, Senior Member
Catchwords: APPEAL – Civil and Administrative Tribunal (NSW) – Guardianship Division – internal appeal – applications to review enduring power of attorney and instrument appointing enduring guardian – alleged failure of Tribunal to take account of evidence – no error made – leave refused – appeal dismissed
|
| Consumer and Commercial Division - Tenancy
Decision of: S Thode, Senior Member; S Goodman SC, Senior Member
Catchwords: APPEAL – LAND LAW - Residential Tenancy - findings of fact – no error of law
|
| Consumer and Commercial Division - Tenancy
Decision of: S Thode, Senior Member; S Goodman SC, Senior Member
Catchwords: APPEAL – Land Law – Residential Tenancy – error of law – application of s 107 Residential Tenancies Act 2010
|
| Consumer and Commercial Division - Commercial
Decision of: K Rosser, Principal Member; G K Burton SC, Senior Member
Catchwords: COSTS - Dividing Fences - no special circumstances
|
| Consumer and Commercial Division - Strata
Decision of: M Harrowell, Deputy President; G Blake AM SC, Senior Member
Catchwords: JUDGMENTS AND ORDERS – Consent order – meaning of order – interim or final order – admissibility of extrinsic evidence
ADMINISTRATIVE LAW – procedural fairness – order made without submissions from parties and without providing parties with an opportunity to be heard
|
| Consumer and Commercial Division - Home Building
Decision of: P Durack SC, Senior Member; K Ransome, Senior Member
Catchwords: APPEAL – building claim – decision said to be against the weight of the evidence – evidence excluded by Member sought to be relied upon on appeal – no substantial miscarriage of justice – leave to appeal refused
|
| Consumer and Commercial Division - Commercial
Decision of: M Harrowell, Deputy President; J Lonsdale, Senior Member
Catchwords: APPEAL – retail tenancy claim – order that party is entitled to receive security bond – ancillary order
COSTS – whether the Tribunal miscarried in the exercise of discretion – general rule that costs are compensatory and follow the event
|
| | 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.
|
| |
