NCAT Appeal Panel Decisions Digest Issue 10 of 2021 | 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 October 2021:
Barkat v Sun [2021] NSWCATAP 327 - In which the Appeal Panel allowed an appeal from a decision of the Consumer and Commercial Division. The Appeal Panel found that the Tribunal’s failure to permit the appellant tenants to cross-examine the respondent landlord’s daughter, who was an essential witness in the dispute, constituted a denial of procedural fairness. Pongrass v Small [2021] NSWCATAP 314 - In which the Appeal Panel dismissed an appeal by a landlord from a decision of the Consumer and Commercial Division. The Appeal Panel found that a text message by the landlord’s agent informing the tenant that access was required to enable the premises to be valued did not constitute proper notice of the landlord’s intention to sell the property for the purpose of s 53(1). Further, a single note from the agent could not constitute written notice for the purposes of both s 53(1) and s 55(2)(f) concurrently. Wojciechowska v Commission of Police (No 2) [2021] NSWCATAP 311 - In which the Appeal Panel dismissed an appeal from an interlocutory decision of the Tribunal to list the proceedings for administrative review. The Appeal Panel found that in exercising administrative review jurisdiction in a dispute between the Commissioner of Police, who has no separate legal identity or existence apart from the Crown in right of the State of NSW, and a resident of Tasmania, the Tribunal was not exercising federal judicial power. Jeray v Blue Mountains City Council [2021] NSWCATAP 310 - In which the Appeal Panel allowed an appeal from a decision of the Administrative and Equal Opportunity Division which had found a request for information in the form of a list of relevant documents was not a valid application under the Government Information (Public Access) Act 2009 (NSW). The Appeal Panel found that the ease and reasonableness of locating the information was not relevant to the validity of the application. Registrar of Births, Deaths and Marriages v MacMahon [2021] NSWCATAP 303 - In which the Appeal Panel allowed an appeal from a decision of the Administrative and Equal Opportunity Division which had found that the respondent’s application did not involve a prohibited name under the Births, Deaths and Marriages Act 1995 (NSW). The Appeal Panel found that the appellant was correct to find that the name change was a prohibited name because the appellant had over 100 criminal convictions for identity fraud and similar offences, and the name change was not in the public interest.
Each case title is hyperlinked to the full decision available on NSW Caselaw. | | | Barkat v Sun [2021] NSWCATAP 327 Consumer and Commercial Division - Tenancy T Simon, Principal Member; D Robertson, Senior Member
In sum: The Appeal Panel allowed an appeal from a decision of the Consumer and Commercial Division. The Appeal Panel found that the Tribunal’s failure to permit the appellant tenants to cross-examine the respondent landlord’s daughter, who was an essential witness in the dispute, constituted a denial of procedural fairness.
Facts: The Tribunal made orders for the termination of the residential tenancy agreement between the appellants (the tenants) and the respondents (the landlords). The tenants alleged there was an oral agreement offered by the landlords’ daughter (Ms Sun) and accepted by the tenants. They alleged that they were denied procedural fairness in the Tribunal hearing in not being permitted to cross-examine Ms Sun. Ms Sun said in her statutory declaration, that she informed the tenants that the landlords wished to move into the property at the end of the fixed term, but provided no details of when that conversation allegedly occurred. In earlier directions made by the Tribunal, a notation had specified that Ms Sun would be available for cross-examination at the hearing ([11]-[13]).
At the hearing, the Tribunal outlined how the hearing would proceed; namely, that the Tribunal would outline the case as the Tribunal had understood it, then confirm that outline with the tenants and the evidence the tenants sought to rely on, and then repeat that process with the landlords before affording each party with an opportunity to respond. During proceedings, the tenant’s son, who represented them, stated that he was under the impression he would be able to cross-examine Ms Sun in accordance with the earlier directions; the Member declined to allow cross-examination in accordance with his aforementioned plan for how the hearing would be conducted ([18]-[20], [28]).
Held (allowing the appeal):
(i) There is no obligation to allow cross-examination in every hearing before the Tribunal. It is wholly within the legitimate power of the Tribunal to dispense with cross-examination if it thinks it fit, the only limitation on the Tribunal’s power to do so consisting of its obligation to conform to the rules of procedural fairness ([29]).
(ii) Cross-examination allows parties the opportunity to test the evidence so as to determine the issues in dispute. We do not accept that the Tribunal was obliged to allow cross-examination simply because of the earlier directions. If the evidence of the witness sought to be cross-examined is not relevant to the central issues in dispute then it may be that cross-examination would not be necessary or appropriate and it would be acceptable for the Tribunal to dispense with cross-examination ([30]).
(iii) In the present circumstances it was a denial of procedural fairness not to allow the tenants an opportunity to cross-examine Ms Sun on the statement that had been provided to the Tribunal. Ms Sun’s evidence was directly disputed by the tenants, there were no time constraints requiring the hearing to be brought to a close without the tenants being given the opportunity to cross-examine Ms Sun and the Tribunal had previously made directions that Ms Sun be available for cross-examination. The tenants were denied the opportunity to test the veracity of Ms Sun’s statutory declaration and test the primary issue in contention, namely the conversation between the tenants and Ms Sun. As such the appeal was allowed and the matter remitted to the Consumer and Commercial Division for rehearing ([31]-[32]). | Pongrass v Small [2021] NSWCATAP 314 Consumer and Commercial Division - Tenancy Cowdroy ADCJ, Principal Member; G K Burton SC, Senior Member
In sum: The Appeal Panel dismissed an appeal by a landlord from a decision of the Consumer and Commercial Division. The Appeal Panel found that a text message by the landlord’s agent informing the tenant that access was required to enable the premises to be valued did not constitute proper notice of the landlord’s intention to sell the property for the purpose of s 53(1). Further, a single note from the agent could not constitute written notice for the purposes of both s 53(1) and s 55(2)(f) concurrently.
Facts: The respondent (the tenant) leased premises from the appellant (the landlord), whose agent (the agent) visited the property on or about 26 March 2021 and, according to the tenants, advised them that the landlord would likely be selling the property and would need further access for photos and open houses. The landlord submitted that the agent informed the tenants that the landlord was selling the property. The agent arranged with the tenant for inspections and photos, and when the tenant returned home on 9 April 2021 he found a “For Sale” sign erected in front of the property, photographs of the premises online and a note from the agent setting out inspection times and dates. The tenant denied access to the property the next day and the tenant and landlord commenced separate proceedings at the Tribunal ([4]-[8]).
The Tribunal found that the landlord had: failed to provide valid notice of the sale of the property in which the tenant resided pursuant to s 53(1) of the Residential Tenancies Act 2010 (NSW) (RT Act); breached s 50(1)-(2) by conducting inspections of the property with prospective purchasers; breached s 50 and s 55 by erecting a “For Sale” sign on the property; breached s 55A(1) by publishing photographs of the interior of the property with the tenant’s personal property visible without first obtaining the tenant’s written consent; and breached s 50 by interfering with the tenant’s reasonable peace, comfort or privacy. The Tribunal found that the tenant had not breached the provisions of the RT Act or the residential tenancy agreement. The Tribunal awarded $3,500 in damages to the tenant ([2]).
Held (dismissing the appeal):
(i) A text message sent by the agent informing the tenant that access was required to enable the premises to be valued did not constitute proper notice of the landlord’s intention to sell the property for the purpose of s 53(1). While the format of the written notice is not specified in s 53, the RT Act contains specific provisions for the service of notices and other documents in s 223, which does not provide for notice via text message ([33]).
(ii) The Tribunal accepted that the agent’s note of 9 April constituted written notice of sale under s 53. However s 55(2)(f) only permits the landlord to enter the premises without the tenant’s consent and without notice only if the parties have failed to come to an agreement to show the property to prospective purchasers not more than twice a week and if the tenant is given not less than 48 hours notice each time. While there was a failure to agree, the notice under s 53 cannot operate as the notice under s 55(2)(f). Such an interpretation would defeat the purpose of s 55(2)(f), and mean there would be no mechanism for a general notice of sale, opportunity to agree to inspection dates and a procedure if the landlord and tenants failed to agree ([34]-[36]).
(iii) An award of damages is discretionary in the context of the Appeal Panel’s restricted right on appeal to interfere with findings of fact. An appellate hearing will not interfere with the exercise of discretion unless it is shown that the decision-maker has misunderstood the evidence, applied a wrong principle, taken into account matters which were irrelevant or failed to take into account relevant matters, which would result in an error of law affecting the exercise of jurisdiction. The Tribunal was entitled to exercise its judgment as to the effect of the factual considerations, and there was no demonstrable error in the discretion so exercised ([41], [46]-[47]).
(iv) A breach of quiet enjoyment must be more than merely inconvenient, but rather unreasonable. Each case will turn on its facts, and the Tribunal was correct to find that the conduct of the landlord in the present case constituted a significant interference with the quiet enjoyment to which the tenant was entitled ([53], [60]).
(v) The landlord is not entitled to equitable relief at the Tribunal. The Tribunal’s jurisdiction is confined by s 28 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act); the NCAT Act does not invest the Tribunal with equitable jurisdiction. While it was previously thought that s 6 of the Law Reform (Law and Equity) Act 1972 (NSW) granted the Tribunal power to grant relief against forfeiture, an equitable remedy, the provision only grants jurisdiction to inferior courts to use equity as a defence, not by way of an ingredient in a claim. In this case the landlord was in substance not seeking to use an equitable remedy by way of defence, but rather to attempt enforcement of his contractual rights under the tenancy agreement in respect of an intended sale. While it is apparently established that the Tribunal is an “inferior court” for the purposes of s 6, the Tribunal does not have general power to grant equitable relief ([65], [67], [69], [71]-[72], [81]). | Wojciechowska v Commission of Police (No 2) [2021] NSWCATAP 311 Administrative and Equal Opportunity Division S Westgarth, Deputy President; L Pearson, Principal Member
In sum: The Appeal Panel dismissed an appeal from an interlocutory decision of the Tribunal to list the proceedings for administrative review. The Appeal Panel found that in exercising administrative review jurisdiction in a dispute between the Commissioner of Police, who has no separate legal identity or existence apart from the Crown in right of the State of NSW, and a resident of Tasmania, the Tribunal was not exercising federal judicial power.
Facts: The parties were involved in a dispute in relation to the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) in which the Appeal Panel dismissed the appellant’s appeal. The respondent (the Commissioner) applied for a costs order, which the appellant disputed. The appellant appealed from the interlocutory decision to list the proceedings for administrative review, and contended that there is no jurisdiction to determine the Commissioner’s costs application because in administrative review matters, pursuant to s 100 of the GIPA Act, the Tribunal is exercising federal judicial power; the appellant is a resident of Tasmania and the Commissioner is a State within the meaning of s 75 of the Constitution, and the Tribunal is not a court of a State and so has no jurisdiction. The appellant further contended: that the costs application is an abuse of power; the Commissioner has not established special circumstances pursuant to s 60(3) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) warranting an order for costs; the Commissioner did not succeed in the appeal based on his arguments, and breached his model litigant duties; the Appeal Panel decision was made without jurisdiction; the appeal was caused by the Commissioner and the Tribunal, and was brought in the public interest and was in the nature of a test case; and the Commissioner could have filed an appearance and not argued the case on the appeal ([1]-[8]).
Held (dismissing the appeal and refusing the costs application):
(i) The appellant’s application for the Appeal Panel Members to recuse themselves was rejected. For a decision-maker to disqualify himself or herself for apprehended bias, there must be an objective connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the decision-maker did not bring an impartial mind to bear on the issues to be decided ([24], [26]).
(ii) As the Commissioner has no separate legal identity or existence apart from the Crown in right of the State of NSW, if the determination of the proceedings would involve an exercise of judicial power, the dispute would involve a matter between a State and a resident of another State within the meaning of s 75(iv) of the Constitution ([27]).
(iii) The Appeal Panel was not exercising judicial power in determining the appeal, nor in determining the Commissioner’s application for costs of the appeal. Under s 28(2) of the NCAT Act, NCAT has four types of jurisdiction: general, administrative review, appeal and enforcement. The appellant’s proceedings are administrative review proceedings in accordance with s 30 of the NCAT Act ([43]-[44]).
(iv) There is no suggestion that the legislature intended for exercise of judicial power when determining an administrative review under the GIP Act; the jurisdiction to determine such disputes was explicitly conferred upon the Tribunal, rather than a court. In such a review the Tribunal is not making a determination of existing rights and obligations according to law, but rather is exercising an administrative discretion ([50]).
(v) The impugned direction for the listing of the hearing of the administrative review application was, if it is a decision, an interlocutory decision. It determined when, and in what manner, the substantive proceedings were to take place. The source of the power to make that decision was s 38(1) of the NCAT Act, which allows the Tribunal to determine its own procedures where the NCAT Act or procedural directions make no provision. That was not an exercise of judicial power ([52]-[53]).
(vi) In determining the appeal from the direction as to listing of the administrative review application, the Appeal Panel was not exercising judicial power, for the following reasons. The requirement under s 27(1)(a) of the NCAT Act that the Appeal Panel be constituted by at least one Member who is an Australian lawyer is not sufficient to characterise the power being exercised as judicial. While the Appeal Panel was required to determine questions of law, that is not of itself an exercise of judicial power. Any opinion reached by it on a question of law is not binding or authoritative, the decision of the Appeal Panel being subject to the right of appeal on a question of law to the Supreme Court, with leave of that Court: NCAT Act, s 83. The Tribunal, including the Appeal Panel, remains subject to the supervisory jurisdiction of the Supreme Court. The power to award costs of the appeal is ancillary to the Tribunal’s internal appeal jurisdiction, and in exercising that power the Appeal Panel is not exercising judicial power: NCAT Act, s 57, s 60 ([56], [59]).
(vii) Although all grounds of appeal were rejected, it does not necessarily follow that the appeal disclosed no arguable error of law or fact, or, to use the words of s 60(3)(c), had no tenable basis in fact or law. Costs orders are not a punishment to an unsuccessful party but are made to compensate the successful party for the expense occasioned by the proceedings. There are no special circumstances in the present case warranting a s 60 costs order in favour of either party ([70], [79]). | Jeray v Blue Mountains City Council [2021] NSWCATAP 310 Administrative and Equal Opportunity Division Hennessy ADCJ, Deputy President; C Mulvey, Senior Member
In sum: The Appeal Panel allowed an appeal from a decision of the Administrative and Equal Opportunity Division which had found a request for information in the form of a list of relevant documents was not a valid application under the Government Information (Public Access) Act 2009 (NSW). The Appeal Panel found that the ease and reasonableness of locating the information was not relevant to the validity of the application.
Facts: The appellant made an application to the respondent for “All records concerning the North Face 100/Ultra Trail event”, and requested an index if there were many documents so that he may select the documents required. The respondent informed the appellant that the application was invalid pursuant to s 41(1)(e) of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act), because it did not include “such information as is reasonably necessary to enable the government information applied for to be identified” ([1]-[4]).
The appellant sought external review by the Information and Privacy Commissioner (the Commissioner) who found the respondent had complied with its requirement under s 52(1)(a) of the GIPA Act to identify the reason why the application was not a valid access application. The appellant then sought administrative review of the respondent’s decision at the Tribunal. The Tribunal affirmed the respondent’s decision ([6]-[8]).
Held (allowing the appeal):
(i) The respondent’s submissions that the material sought by the appellant was extensive and would be difficult to find do not address the issue at hand. The issue is whether the application is valid, not whether any search for information would, for example, “require an unreasonable and substantial diversion of the agency’s resources”, which the respondent would not be required to undertake pursuant to s 53(5) of the GIPA Act ([15]).
(ii) The Appeal Panel has previously identified the purpose of the identification requirement as being to ensure that an agency has sufficient information to enable it to identify, consider and make a decision about the government information applied for. However the purpose of the identification requirement should not be confused with its meaning ([16]).
(iii) Section 41(1)(e) merely requires that an applicant provide such information as is reasonably necessary to enable the government information applied for to be identified. The identification requirement does not mean that an applicant has to confine an application to a particular time frame or particular types of records or documents; the fact that the requested information is vast or difficult to locate does not make the application invalid ([16]-[17]).
(iv) The Tribunal erred by focusing on the reasonableness of the application and the ability of the respondent to perform its functions, rather than on the wording of the provision. The Tribunal’s decision was set aside and the application remitted to the respondent to determine in accordance with the Appeal Panel’s reasons ([19]). | Registrar of Births, Deaths and Marriages v MacMahon [2021] NSWCATAP 303 Administrative and Equal Opportunity Division J S Currie, Senior Member; Dr J Lucy, Senior Member
In sum: The Appeal Panel allowed an appeal from a decision of the Administrative and Equal Opportunity Division which had found that the respondent’s application did not involve a prohibited name under the Births, Deaths and Marriages Act 1995 (NSW). The Appeal Panel found that the appellant was correct to find that the name change was a prohibited name because the appellant had over 100 criminal convictions for identity fraud and similar offences, and the name change was not in the public interest.
Facts: The appellant refused the respondent’s application to register a change of name on the basis that the name change was contrary to the public interest and therefore a prohibited name under s 30(3) and s 4 of the Births, Deaths and Marriages Registration Act 1995 (NSW) (BDMR Act). The respondent had been found guilty of over 100 criminal offences involving identity fraud, tax fraud and other offences. The appellant’s decision was affirmed by internal review, however the respondent appealed to the Tribunal which found in his favour. The appellant appealed on the basis that the Tribunal had erred in its construction of s 30 by concluding that, in order to be contrary to the public interest, there must be some feature of the name itself that is contrary to the public interest ([1]-[6]).
Held (allowing the appeal):
(i) It is well established that the function of a definition, such as that of “prohibited name” in s 4, is to provide aid in construing a statute; nothing is more likely to defeat the intention of the legislature than to give a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment. Where the text read in context permits of more than one potential meaning, the choice between those meanings may ultimately turn on an evaluation of the relative coherence of each with the scheme of the statute and its identified objects or policies ([24], [26]).
(ii) While the Tribunal applied one possible construction of the relevant provisions, another is that a name may be contrary to the public interest for reasons that do not relate to the name itself. Section 4(d) says a prohibited name means a name that “is contrary to the public interest for some other reason”; it is difficult to envisage circumstances in which a name of itself would be inherently contrary to the public interest, except in one of the ways anticipated by the earlier subsections of s 4. The public interest is not limited to consideration of the proposed name in isolation ([27]-[30]).
(iii) Context should be considered in the first instance, and considered in the widest sense to include such things as the existing state of the law and the mischief the statute was intended to remedy. The Tribunal’s construction did not sit comfortably with s 30(1)(b), which went to the purpose of the name change application; such a consideration would be irrelevant if the nature of the name itself was the sole consideration in determining registrability. The Tribunal’s construction is also contrary to s 6, which sets out a function of the Registrar as to seek to prevent identity fraud ([36], [41], [45]).
(iv) The Tribunal erred in its apparent assumption that an express purpose of the BDMR Act of ensuring that people who have committed criminal offences continue to use the name under which they were convicted was required to support the appellant’s construction of the definition of a “prohibited name”. The Tribunal further erred in assuming that the objects of the Act in s 3 are the sole source of the object or purpose of the Act ([52]).
(v) The Tribunal failed to consider the Explanatory Notes to the BDMR Act, which may be considered pursuant to s 34(2)(e) of the Interpretation Act 1987 (NSW). The Explanatory Notes say that s 30 of the BDMR Act prohibits the registering of a name change where the change is being sought for a fraudulent purpose. This construction is also supported by the Second Reading Speech. For these and the above reasons, the appeal was allowed ([57], [59], [62]). | | | | Ugur v Commissioner of Police [2021] NSWCATAP 298 Administrative and Equal Opportunity Division Decision of: P Durack SC, Senior Member; Dr J Lucy, Senior Member Catchwords: GOVERNMENT INFORMATION-review of agency’s decision that it held no further information-onus on agency to justify decision-reason to believe agency may hold further information-issue whether reasonable searches carried out as required by s 53 (2) of the Government Information (Public Access) Act 2009 (NSW)-inadequacies in the evidence from the agency-review of agency’s decision to withhold some information in documents disclosed to the appellant ADMINISTRATIVE REVIEW-remit decision about whether information is held by the agency to the agency for reconsideration under s 65 of the Administrative Decisions Review Act 1997 (NSW) APPEALS- errors of law affecting decision about whether information was held by the agency- failing to address issue whether agency conducted reasonable searches-conclusions based upon evidence that lacked probative force concerning particular information-overlooking or misunderstanding significant evidence - no error concerning redacted information | | Kesuma v Gittany (No 2) [2021] NSWCATAP 301 Consumer and Commercial Division - Home Building Decision of: T Simon, Principal Member; G K Burton SC, Senior Member Catchwords: COSTS - Rule 38A Civil and Administrative Tribunal Rules 2014 | Hyndes v Maddak Pty Ltd [2021] NSWCATAP 302 Consumer and Commercial Division - Tenancy Decision of: G Curtin SC, Senior Member; G Sarginson, Senior Member Catchwords: LEASES AND TENANCIES - covenants - covenant for quiet enjoyment – breach - damages – distress or disappointment – not caught by the Civil Liability Act 2002 (NSW) – a claim for damages for loss of quiet enjoyment and an order for the reduction of rent under s 44 of the Residential Tenancies Act 2010 (NSW) are not mutually exclusive forms of relief – avoidance of double compensation | Joel v Commissioner for Fair Trading (No 2) [2021] NSWCATAP 304 Occupational Division Decision of: Coleman ADCJ, Principal Member; C Mulvey, Senior Member Catchwords: APPEAL - Appeal against decision of tribunal refusing appellant’s review of decision of respondent refusing application for real estate agent’s licence pursuant to Property, Stock and Business Agents Act 2002 - no error of law demonstrated - application for further or additional evidence refused – application for leave to appeal refused- appeal dismissed | Williams v Jeffreys [2021] NSWCATAP 305 Consumer and Commercial Division - Tenancy Decision of: S Thode, Senior Member; E Bishop, Senior Member Catchwords: LEASES AND TENANCIES — application for extension of time in which to appeal — application for leave to appeal — error of law — appeal allowed — no evidence to support finding of fact — break lease fee — compensation — COSTS — no special circumstances | Mae v Warner [2021] NSWCATAP 306 Consumer and Commercial Division - Tenancy Decision of: R C Titterton OAM, Senior Member; S Goodman SC, Senior Member Catchwords: APPEALS – application for an extension of time in which to file notice of appeal – whether a failure to afford procedural fairness whether leave to appeal should be granted - whether the Tribunal’s decision was fair and equitable – whether decision was against the weight of the evidence -– no question of principle | Patel v Mallepally [2021] NSWCATAP 307 Consumer and Commercial Division - Tenancy Decision of: The Hon F Marks, Principal Member; A L Surdo SC, Senior Member Catchwords: APPEAL – appeal filed out of time – appellant claimed that he was unable to provide all of his evidence and that the Tribunal failed to consider all aspects of his Application – held that there was no basis for the appellant’s contentions – leave to appeal out of time denied – appeal dismissed | Willoughby Homes Pty Ltd v Pawar [2021] NSWCATAP 308 Consumer and Commercial Division - Home Building Decision of: The Hon F Marks, Principal Member; A L Surdo SC, Senior Member Catchwords: APPEAL that costs order inadequate – held appellant conducted proceedings in a manner which disentitled it to a full costs order – appeal dismissed | Kendal v Mackay [2021] NSWCATAP 309 Consumer and Commercial Division - Strata Decision of: G Curtin SC, Senior Member; J Currie, Senior Member Catchwords: LAND LAW – strata title – common property – lot owners not to unilaterally conduct work on common property – orders to restore common property to pre-existing condition – impossibility of complying with part of order – order varied | Jeray v Blue Mountains City Council [2021] NSWCATAP 310 Administrative and Equal Opportunity Division Decision of: Hennessy ADCJ, Deputy President; C Mulvey, Senior Member Catchwords: STATUTORY CONSTRUCTION - meaning of requirement to identify information sought in s 41(1)(e) of the Government Information (Public Access) Act 2009 (NSW) | | Welsh v Lawbeach Pty Ltd [2021] NSWCATAP 313 Consumer and Commercial Division - Consumer Claim Decision of: K Rosser, Principal Member; D Ziegler, Senior Member Catchwords: APPEAL – extension of time to lodge notice of appeal - significant new evidence - home building –jurisdiction - whether claim is a building claim - whether materials supplied by homeowner are included in calculating reasonable market value of labour and materials involved in the work – consumer claim – breach of guarantee as to due care and skill - incorrect approach to assessment of damages | Pongrass v Small [2021] NSWCATAP 314 Consumer and Commercial Division - Tenancy Decision of: Cowdroy ADCJ, Principal Member; G K Burton SC, Senior Member Catchwords: APPEALS-Residential Tenancies Act 2010 (RTA) – whether appeal out of time – whether leave required – whether landlord provided requisite statutory notice for the sale of the property as required by section 53 of the RT act – whether notice was served as required by RT act whether quiet enjoyment of respondent tenant was breached – reasonableness of the respondent tenant – whether landlord may claim estoppel against the tenant – whether Tribunal has power to grant equitable relief of estoppel when used other than as a defence – whether the Tribunal is an “inferior court” – whether damages awarded were excessive – COSTS – whether special circumstances exist to warrant a costs order | | Bowers v Karai [2021] NSWCATAP 316 Consumer and Commercial Division - Tenancy Decision of: A Suthers, Principal Member; C Mulvey, Senior Member Catchwords: LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — No properly arguable grounds of appeal – allegations of error not supported by evidence | ZVK v ZVL [2021] NSWCATAP 317 Guardianship Division Decision of: The Hon J Boland AM, Deputy President; A Suthers, Principal Member; L Porter, General Member Catchwords: APPEALS – from exercise of discretion – question of law – application for leave to appeal against decision of the Guardianship Division | Thomas v Godbolt [2021] NSWCATAP 318 Consumer and Commercial Division - Tenancy Decision of: S Thode, Senior Member; D Robertson, Senior Member Catchwords: ADMINISTRATIVE LAW — particular administrative bodies — NSW Civil and Administrative Tribunal — internal appeals — leave to appeal on a ground other than a question of law — principles governing — no question of principle | Brenchley v Clissold [2021] NSWCATAP 319 Consumer and Commercial Division - Strata Decision of: Cowdroy ADCJ, Principal Member; D Goldstein, Senior Member Catchwords: COSTS – Whether special circumstances existed – Costs where appeal is withdrawn without a hearing on the merits | Lukas trading as Stone Obsessions NSW v Carstens [2021] NSWCATAP 320 Consumer and Commercial Division - Home Building Decision of: P H Molony, Senior Member; J S Currie, Senior Member Catchwords: APPEAL – COSTS – application for fixed costs – principles applicable to making lump sum costs orders – reasonableness of charges - fixed cost order made | | | | Bluesfest Services Pty Ltd v The Cajun Kitchen Pty Ltd [2021] NSWCATAP 325 Consumer and Commercial Division - Consumer Claim Decision of: M Harrowell, Deputy President; S Westgarth, Deputy President Catchwords: CONTRACTS – Unfair terms – force majeure term – ss 23,24 Australian Consumer Law (NSW) – Frustrated Contracts Act – contracts frustrated by COVID-19 pandemic – application of Act to determine refunds and compensation to the parties STATUTORY INTERPRETATION – meaning of “court” for the purpose of the Frustrated Contracts Act 1978 | Scott v Stewart [2021] NSWCATAP 326 Consumer and Commercial Division - Home Building Decision of: R C Titterton OAM, Senior Member; J McAteer, Senior Member Catchwords: CONTRACT LAW – termination on notice – substantial breach – meaning of “substantial”. REPUDIATION – election – manner by which repudiation can be accepted – reasonable time to make election – conduct in performance of contract while considering notice under contract | Barkat v Sun [2021] NSWCATAP 327 Consumer and Commercial Division - Tenancy Decision of: T Simon, Principal Member; D Robertson, Senior Member Catchwords: APPEAL – Residential tenancy - procedural fairness – failure to allow cross examination – oral agreement – fixed term agreement - retaliatory notice – termination - declaration of residential tenancy agreement – Residential Tenancies Act 2010 s115 – s11 – s16 – COVID-19 provisions | Croghan v Rees [2021] NSWCATAP 328 Consumer and Commercial Division - Tenancy Decision of: S Goodman SC, Senior Member; C Mulvey, Senior Member Catchwords: LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — No properly arguable grounds of appeal – allegations of error not supported by evidence | Geracitano v Cloughessy [2021] NSWCATAP 329 Consumer and Commercial Division - Commercial Decision of: G Curtin SC, Senior Member; J McAteer, Senior Member Catchwords: APPEAL – failure by appellants to provide material in accordance with Directions for the preparation of the appeal – failure held to have denied the Appeal Panel the opportunity of considering the appeal – leave to appeal refused and appeal dismissed DIVIDING FENCES – held that Order that fence constructed on top of a retaining wall within jurisdiction despite proposed collateral use of the retaining wall to retain a driveway | Transwest Fuels Pty Ltd v Knee [2021] NSWCATAP 330 Consumer and Commercial Division - Strata Decision of: G Blake AM SC, Senior Member; G Curtin SC, Senior Member Catchwords: ADMINISTRATIVE LAW — particular administrative bodies — NSW Civil and Administrative Tribunal - hearing rule — notice — time to prepare case – time to prepare case not given by failure to serve evidence on opponent prior to hearing – no procedural unfairness in refusing to admit evidence not served in advance of the hearing | | Goncalves v Bora Developments Pty Ltd (No 2) [2021] NSWCATAP 332 Consumer and Commercial Division - Home Building Decision of: S Westgarth, Deputy President; S Goodman SC, Senior Member Catchwords: COSTS –- costs on internal appeals - amount in dispute exceeds $30,000 – costs follow the event – no disentitling circumstances | Gu v McMahon [2021] NSWCATAP 333 Consumer and Commercial Division - Tenancy Decision of: G Curtin SC, Senior Member; J McAteer, Senior Member Catchwords: LANDLORD and TENANT-termination of tenancy agreement instigated by tenant-whether validly terminated-whether other bases upon which the agreement terminated-claims relating to condition of the residential premises when tenant gave up possession-significance of condition report prepared by the landlord APPEALS-error of law-failure to address termination issues-failure to address issues concerning probative force of the landlord’s condition reports | Marino v Di Blasio [2021] NSWCATAP 334 Consumer and Commercial Division - Tenancy Decision of: G Curtin SC, Senior Member; A Boxall, Senior Member Catchwords: LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — rent – bond - no question of principle | Telford v Cooper [2021] NSWCATAP 335 Consumer and Commercial Division - Tenancy Decision of: Cowdroy ADCJ, Principal Member; S Thode, Senior Member Catchwords: APPEAL - adequacy of reasons – whether the Tribunal engaged with the cases of each party | Shielsar v Aghabekian [2021] NSWCATAP 336 Consumer and Commercial Division - Home Building Decision of: S Goodman SC, Senior Member; C Mulvey, Senior Member Catchwords: PRACTICE AND PROCEDURE – s 63 of the Civil and Administrative Tribunal Act – power to correct error in decision – scope of power – principles to be applied – power to correct name in final order – where proceedings against deregistered company APPEALS – whether error of law – whether leave to appeal should be granted | DVT v Commissioner of Police [2021] NSWCATAP 337 Consumer and Commercial Division - Strata Decision of: S Westgarth, Deputy President; M Harrowell, Deputy President Catchwords: ADMINISTRATIVE LAW- appeal against dismissal of application for adequate statement of reasons- whether tribunal has power to order an adequate statement of reasons from the administrator | Soulis v R & A Henry Auto Repairs Pty Ltd [2021] NSWCATAP 338 Consumer and Commercial Division - Motor Vehicles Decision of: A Suthers, Principal Member; A Lo Surdo SC, Senior Member Catchwords: APPEALS – Claim under the Australian Consumer Law (NSW) – need to provide evidence of causal link between conduct and loss | Monument Building Group Pty Ltd v Kapila (No. 2) [2021] NSWCATAP 339 Consumer and Commercial Division - Home Building Decision of: K Rosser, Principal Member; S Goodman SC, Senior Member Catchwords: COSTS – costs on appeal – whether special circumstances established - where party given leave to be legally represented on the condition that it may not recover legal costs | Mahendran v Price Family Investments Pty Ltd trading as Ben Price Estate Agents [2021] NSWCATAP 340 Consumer and Commercial Division - Commercial Decision of: G Curtin SC, Senior Member; J McAteer, Senior Member Catchwords: LEASES AND TENANCIES – termination of tenancy following breaches – liability of agent for damage to property and loss of rent suffered by landlord – duty of care ADMINISTRATIVE LAW – jurisdiction of the Civil and Administrative Tribunal under Part 6A of the Fair Trading Act – time when cause of action first accrues – proceedings out of time – no power to extend time | | 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. |
|
|
