NCAT Appeal Panel Decisions Digest Issue 10 of 2024 |
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 2024: |
Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204: An Appeal Panel allowed an appeal in part, remitting the proceedings to a differently constituted Tribunal, after finding that there was no evidence for a critical finding made by NCAT that defective tiling work constituted a ‘major defect’ under the Home Building Act 1989 (NSW). Importantly, the Appeal Panel considered the earlier Appeal Panel decision in John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) which has been cited often in NCAT when identifying sources of questions of law. The Appeal Panel stated that Prendergast does not provide an exhaustive code and must be considered in light of the many authorities that have come since. It qualified several formulations set out in Prendergast and also added to the categories of questions of law, before stating that these categories are not closed.
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Bark N Purr Pets Pty Ltd v Moussad [2024] NSWCATAP 201: An Appeal Panel allowed an appeal, remitting the proceedings, in relation to a claim from a lessee for damages resulting from losses occasioning from a reduced power supply. The Appeal Panel found NCAT at first instance had not made an error on a question of law in failing to comply with NCAT Procedural Direction 3 (PD 3), finding that PD 3 did not apply to the proceedings as the proceedings did not fall within any of the prescribed categories of proceedings set out in paragraph 11 of PD 3. However, it granted leave to appeal on several remaining factual grounds, finding in favour of the appellant in holding that NCAT had made a decision which was not just and equitable and made against the weight of evidence. NCAT had failed to consider the implications of evidence provided by expert witnesses who were electricians directly involved in the electrical work at the premises which related to the power supply.
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Each case title is hyperlinked to the full decision available on NSW Caselaw. |
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1. Are the sources of questions of law limited to those set out in Prendergast? Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 Consumer and Commercial Division Seiden SC DCJ, Deputy President; A Suthers, Principal Member
In sum: Whilst it has become commonplace for both parties and lawyers alike involved in NCAT proceedings to copy from the list of questions of law set out in Prendergast, this will often be wrong as it lacks the requisite precision required to meet the individual circumstances of an appeal. Additionally, the questions of law set out in Prendergast are overly reductive, and should be considered in light of the authorities that have followed it and the qualifications made here.
Facts: The parties entered into a contract in 2012 for the appellant to supply and install tiles at the respondent’s property. Within 12 months, several issues arose in relation to the tiling work being defective. By the time the respondent lodged an application in NCAT, the application would have ordinarily been considered to be made out of time, but NCAT at first instance stated that this would depend on whether the parties had entered into subsequent contracts in 2016 and 2020, bringing the application within the statutory limitation period.
At first instance, the appellant failed to appear, and NCAT determined the matter in favour of the respondent finding that consideration had passed between the parties meaning there were subsequent contracts. The consideration was said to be in the form of a promise not to sue if there existed either liability or a bona fide belief of liability. NCAT was satisfied the appellant was liable under the claim, and ordered the appellant pay the respondent $203,500 for the cost of removing and replacing the tiles. The appellant appealed from that decision submitting that NCAT did not have jurisdiction to determine the claim as it was lodged out of time. A claim for a defect, other than a major defect, must be brought within two years. However, in respect of a major defect, the time limit is six years from completion of the work (Home Building Act 1989 (NSW), s 18E(1)(b)). The Appeal Panel considered several issues, and also considered what constitutes a question of law under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW).
Held (allowing the appeal in part, remitting the proceedings to a differently constituted Tribunal): (i) In considering whether a question of law arises, the decision of Prendergast has been cited many times by the Appeal Panel and by parties in NCAT proceedings, as well as being noted with apparent approval by the Supreme Court. However, it does not provide an exhaustive code and must be considered in light of more recent authorities. In Prendergast, the Appeal Panel identified several questions questions of law, summarised by the Appeal Panel here at [29]-[30]. For example, it includes whether there was a failure to afford procedural fairness, whether the decision was so unreasonable that no reasonable decision maker would make it, and whether there was no evidence to support a finding of fact. These formulations are overly reductive. The following should be added, although the categories are not closed: |
(1) Whether NCAT drew inferences that were not available from the facts as found. This is an extension of the final example listed above in (i). Whether there is evidence of a particular fact, or if a particular inference can be drawn from the facts, are questions of law;
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(2) Whether the construction of a statute or contract arrived at by NCAT was wrong in some identified way; |
(3) Whether NCAT’s decision was vitiated by bias, or a reasonable apprehension of bias, relates to and intersects with the fair hearing rule, and may encompass or be related to the procedural fairness question; |
(4) Whether NCAT failed to respond to substantial, clearly articulated arguments based on established facts which may constitute a breach of procedural unfairness. It may also constitute a constructive failure to exercise jurisdiction; |
(5) Whether the facts as found necessarily satisfied the statute or necessarily did not. However, care should be taken where the statute uses words according to their ordinary meaning, as questions raised about the ordinary meaning of words may not raise pure questions of law. |
(6) The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law. The meaning of a technical legal term is also a question of law, as is the effect or construction of a term whose meaning or interpretation is established. |
(7) Whether NCAT made a jurisdictional error will often raise a question of law. |
(ii) On the evidence available, the appellant has established that there was no evidence at first instance for the critical finding that there was a major defect in the tiling after 2017. Assuming at its highest that the waterproofing issue constituted a major defect, there was no evidence that the issue continued after 2017. Additionally, contrary to NCAT’s finding at first instance, forbearance to sue was not valuable consideration for the 2020 contract, if the basis was actual liability rather than a bona fide belief of liability (at [90]). |
(iii) However, in relation to the 2020 contract, a finding appears open that the respondent gave good consideration based on forbearance to sue (due to a bona fide belief of liability on the appellant’s part for ongoing major defects, rather than actual liability) in exchange for the appellant rectifying the tiling defects. Until this issue is decided, it cannot be determined where there was valuable consideration and that the claim under the 2020 contract was within time. The matter is to be remitted to determine that issue alone and to make orders based on that finding (at [92]). |
2. How should NCAT deal with expert evidence where it determines that PD 3 does not apply? Bark N Purr Pets Pty Ltd v Moussad [2024] NSWCATAP 201 Consumer and Commercial Division G Burton SC, Senior Member; J Ledda, Senior Member
In sum: Where proceedings do not fall into a category enumerated in paragraph 11 of PD 3, there are nonetheless well-established principles concerning the use of expert evidence in NCAT proceedings. For example, Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 sets out several considerations which will apply including that the expert’s opinion must clearly indicate the facts upon which it is based, those facts must be proved so there is a factual basis for the opinion, the reasons or the process of reasoning for the opinion must be disclosed, and any opinion must fall within the qualifications and experience of the expert.
Facts: The appellant leased a retail premises comprising of shops 6, 7 and 8 from the respondents. The appellant made a claim for damages under the Retail Leases Act 1994 (NSW) (RL Act) for losses occasioned by a reduction in the power supply to the premises. The appellant had previously been able to run its business without interruptions to its electricity supply, until work was carried out by an electrician named Mr Conway on shop 10, a neighbouring premises. Mr Conway explained the link between the appellant’s premises and shop 10 to be that shop 8 had previously been used as a storage room for a bakery in shop 10. The appellant submitted that initially there was an 80 amps supply for shop 6 and a 40 amps supply for shop 8, resulting in a combined supply of 120 amps for all three shops which comprised the retail premises. However, following Mr Conway’s work on shop 10, the appellant claimed the supply to shop 6 was reduced from 80 amps to 40 amps. The appellant claimed this reduction in supply persisted until remedial work was carried out by another electrician, Mr Pearson, meaning the supply to shop 6 was increased from 40 amps to 63 amps. On this point, the respondents submitted the evidence indicated the power supply to shop 6 was originally 40 amps and was never reduced, but rather increased following Mr Pearson’s work.
NCAT at first instance found that the appellant had not proved any claim regarding liability, and critically, found there was no credible evidence that the initial power supply was reduced, including from the evidence provided by Mr Conway and Mr Pearson. On appeal, the appellant submitted that the respondents’ expert evidence failed to comply with PD 3, and also that NCAT erred in relation to several findings of fact.
Held (allowing the appeal, remitting the proceedings to a differently constituted Tribunal): (i) PD 3 requires experts to comply with a code of conduct and outlines the consequences of non-compliance depending on whether the rules of evidence apply to proceedings. Contrary to the appellant’s submission, PD 3 did not apply to the proceedings below. Paragraph 11 of PD 3 limits its application to specific proceedings in NCAT including where NCAT is bound to apply the rules of evidence, to proceedings in the Consumer and Commercial Division involving claims under the Home Building Act 1989 (NSW) where the amount claimed or in dispute is more than $30,000, to those in the Occupational Division of the Tribunal for a ‘profession decision’, and to other proceedings where NCAT has directed that PD 3 will apply. The proceedings before NCAT below were proceedings under the RL Act, and did not fall into any of the kinds of proceedings set out in paragraph 11 of PD 3 (at [38]-[40]). |
(ii) Despite PD 3 not applying to these proceedings, there are well established principles concerning the use of expert evidence in NCAT proceedings, even where the rules of evidence do not apply (see Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 at [85]). NCAT was correct to treat the evidence of the two electricians, Mr Conway and Mr Pearson, as expert evidence that provided a satisfactory basis for making findings of fact. This evidence was also based on their direct experience as the electricians completing the work which impacted the leased premises. It was also correct to give evidence from a third electrician little weight, particularly given his unwillingness to be cross-examined on the evidence he provided (at [54], [61]). |
(iii) On the remaining grounds, for the appellant to make out its case on liability, it needed to prove the power supply to the leased premises was reduced by work done by or on behalf of the respondents. Consequently, it needed to establish that the power supply to the premises was greater at the start of the lease than it was after work had been completed by Mr Conway. NCAT at first instance was wrong to find there was no cogent evidence in support of the appellant’s suggestion regarding the initial total amperage of the premises. For example, Mr Conway’s evidence indicated that the 40 amps circuit breaker he installed for shop 6 would have resulted in the power supply for all three shops being limited to 40 amps. Even assuming the power supply to shop 6 was already limited to 40 amps before Mr Conway’s work, this would still have resulted in a reduction of the power supply for the whole premises from 80 amps (for shops 6 and 8 combined) to 40 amps. Additionally, Mr Conway’s evidence that it was necessary to install a 40 amps circuit breaker in shop 6 for safety reasons was evidence that he considered the supply of power to shop 6 prior to his work to be more than the 40 amps. Otherwise, the work would have been unnecessary. The Tribunal below failed to deal with the implications of such evidence meaning the decision was not fair and equitable, was against the weight of evidence, and there was a significant possibility that the Tribunal below would have found in favour of the appellant on the issue of liability if it had considered the implications of Mr Conway’s evidence (at [57], [66]-[71]). |
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YKJ v YKL [2024] NSWCATAP 188 Guardianship Division Decision of: Seiden SC DCJ, Deputy President; A Britton, Deputy President; Dr B McPhee, Senior Member Catchwords: APPEALS — internal appeal from Guardianship Division — financial management order made — s 25M of the Guardianship Act — where management of estate committed to NSW Trustee and Guardian — whether statutory requirement to exhaust possibility there was no private person suitable to manage estate — whether Tribunal misconstrued statute or asked itself wrong question by failing to be satisfied there was no private person suitable — procedural fairness — whether family member was suitable to be financial manager |
Emrit Services Pty Limited v Lidden [2024] NSWCATAP 189 Consumer and Commercial Division Decision of: A Suthers, Principal Member; S de Jersey, Senior Member Catchwords: APPEALS —statutory warranties under Home Building Act 1989 (NSW) - definition of “major defect” and “major element” – lack of jurisdiction - error on a question of law |
Wojciechowska v Commissioner of Police [2024] NSWCATAP 190 Administrative and Equal Opportunity Division Decision of: T Simon, Principal Member; R Dubler, Senior Member Catchwords: APPEALS — question of law - administrative review — Government Information — denial of procedural fairness — actual and apprehended bias — jurisdiction — residents of different states — transfer of proceedings to the Supreme Court — confidentiality orders — adequacy of reasons — refusal to issue summons |
My Fashion Republic Pty Ltd trading as Cosette v Ho [2024] NSWCATAP 191 Consumer and Commercial Division Decision of: G Ellis SC, Senior Member; P H Molony, Senior Member Catchwords: APPEALS – Reference to statutory provision at initial hearing – decision based on different statutory provision – no opportunity to meet that case – denial of procedural fairness EVIDENCE – Expert evidence – requirements considered – weight to be given to such evidence EVIDENCE – Burden of proof – observations on difference between legal burden and evidential burden |
Hua Nan Trading Pty Ltd v The Owners – Strata Plan No 32396 [2024] NSWCATAP 192 Consumer and Commercial Division - Strata Schemes Decision of: A Bell SC, Senior Member; L Wilson, Senior Member Catchwords: LAND LAW — strata title — common property — maintenance and repair of common property – action for damages by lot owner – proceedings commenced more than two years after the owner became aware of loss – whethertime can be extended under s 41 of the Civil and Administrative Tribunal Act – statutory interpretation APPEAL – Strata Schemes Management Act 2015 – leave to appeal – leave refused |
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Livock v My Fashion Republic Pty Ltd trading as Cosette [2024] NSWCATAP 196 Consumer and Commercial Division Decision of: S Westgarth, Deputy President; G Ellis SC, Senior Member Catchwords: APPEALS – No error on a question of law – no basis for granting leave to appeal – application of established principles EVIDENCE – Expert evidence – requirements considered – weight to be given to such evidence |
AWD Cavallo Pty Ltd t/as Kutchenhaus v Turner [2024] NSWCATAP 197 Consumer and Commercial Division Decision of: M Harrowell, Deputy President; R Perrignon, Senior Member Catchwords: CONTRACT LAW – mutual cancellation of contract – recovery of reasonable charges to date of cancellation – meaning of the expression “reasonable charges” – requirements for evidence to establish reasonable charges – relevance of other provisions in contract – sufficiency of evidence |
Hopkins v NSW Land and Housing Corporation [2024] NSWCATAP 198 Consumer and Commercial Division Decision of: G Sarginson, Deputy President; P H Molony, Senior Member Catchwords: LEASES AND TENANCIES-social housing-termination for breach-cleanliness of property-Tribunal hearing conducted ex parte-documentary evidence of landlord not served-whether denial of procedural fairness-warrant for possession executed before appeal filed-whether appeal rendered nugatory |
Community Association DP 270244 v The Owners – Strata Plan 69205 [2024] NSWCATAP 199 Consumer and Commercial Division - Community Schemes Decision of: M Harrowell, Deputy President Catchwords: LAND LAW – Community Land Development Act 1989 (NSW) – Community Land Development Act 1989 (NSW) – creation of by-laws for restricted use – interpretation of by-laws – effectiveness of grant of by-law made by strata scheme on subdivision of strata lot – whether particular common property the subject of the grant. PRACTICE AND PROCEDURE – referral of adjudication proceedings commenced under the Community Land Management Act 1989 (NSW) to the Tribunal – permissibility of including in those referred proceedings applications for relief which only the Tribunal can hear COSTS – whether Tribunal, on the referral by an adjudicator of proceedings under the Community Land Management Act 1989 (NSW) may award costs – whether the Tribunal in determining application which includes relief within the original general jurisdiction of the Tribunal may award costs in respect of those matters only |
SuperBurrito Pty Ltd v TNAU Finery Pty Ltd [2024] NSWCATAP 200 Consumer and Commercial Division - Commercial Decision of: M Harrowell, Deputy President; D Goldstein, Senior Member Catchwords: LANDLORD AND TENANT – COVID 19 pandemic – restrictions on terminating lease – meaning of “impacted tenant” – whether relevant projection was made to qualify for JobKeeper LANDLORD AND TENANT – Retail Leases Act 1994 – unconscionable conduct – person acting on mistaken view of law – what constitutes unconscionable conduct DAMAGES – need for Tribunal to assess damages where no admission or concession made |
Bark N Purr Pets Pty Ltd v Moussad [2024] NSWCATAP 201 Consumer and Commercial Division Decision of: G Burton SC, Senior Member; J Ledda, Senior Member Catchwords: LEASES AND TENANCIES — retail lease — claim for damages for losses because of reduction of power supply during lease — expert evidence — application of NCAT Procedural Direction 3 to expert evidence in proceedings under Retail Leases Act 1994 (NSW) APPEALS — leave to appeal because decision at first instance not fair and equitable or against the weight of evidence — remittal of proceedings |
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Ugur v Bridge Housing Limited [2024] NSWCATAP 203 Consumer and Commercial Division Decision of: G Sarginson, Deputy President; J Gatland, Senior Member Catchwords: APPEALS – whether utility in circumstances where orders the subject of the appeal have been carried out |
Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 Consumer and Commercial Division Decision of: Seiden SC DCJ, Deputy President; A Suthers, Principal Member Catchwords: BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Statutory warranty under s 18B — time limit of statutory warranty under s 48K(7) — “major defect” for purposes of s 18E(1)(b) APPEALS — internal appeal under s 80 of the Civil and Administrative Tribunal Act 2013 as of right “on any question of law” — relevant principles regarding leave to appeal — whether a late redraft of the grounds of appeal requires an extension of time — whether to grant leave to extend time — the importance of articulating a question of law with precision |
Commissioner for Fair Trading v Aboukalam [2024] NSWCATAP 205 Occupational Division Decision of: S Westgarth, Deputy President; J Ledda, Senior Member Catchwords: APPEAL - administrative review - statutory construction – s 25 of the Home Building Act 1989 (NSW) - requirement to find the applicant to be a fit and proper person - adverse inferences where applicant did not give evidence - whether inferences sought were conjectures - whether finding that applicant was fit and proper was legally reasonable. |
Tam v Cox [2024] NSWCATAP 206 Consumer and Commercial Division Decision of: G Ellis SC, Senior Member; M Deane, Senior Member Catchwords: APPEALS – Extension of time granted – appellant a successful applicant – complaint about conduct in response to orders – no error on a question of law – no substantial miscarriage of justice |
Huo v The Owners – SP No 44652 [2024] NSWCATAP 207 Consumer and Commercial Division Decision of: G Ellis SC, Senior Member; M Deane, Senior Member Catchwords: COSTS – Appellant ordered to pay respondent’s costs – whether error on question of law – failure to take into account appellant’s submissions on costs. |
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FVA v Commissioner of Police, NSW Police Force (No 2) [2024] NSWCATAP 210 Administrative and Equal Opportunity Division Decision of: Seiden SC DCJ, Deputy President; D Robertson, Senior Member Catchwords: GOVERNMENT INFORMATION — access to government information — considering conditions on access under s 73(2) of the GIPA Act — creation of a new record — “000” call and “personal information” ADMINISTRATIVE LAW — whether the Tribunal erred in failing to consider ss 73(2) and 74 of the GIPA Act — Whether failing to address a party’s adjournment application and proceeding in their absence is a material breach of procedural fairness — standing in the shoes of the administrator under s 63(2) of the ADR Act — remittal to Tribunal STATUTORY INTERPRETATION — meaning of s 75 of GIPA Act — conflict of provisions — generalia specialibus non derogant — whether s 75(2) or s 72 is dominant |
Williams t/as Select Stables v Mead [2024] NSWCATAP 211 Consumer and Commercial Division Decision of: A Bell SC, Senior Member; G Ellis SC, Senior Member Catchwords: APPEALS – No recording or transcript of the hearing or the oral reasons available – failure to comply with direction despite extension of time – no error on a question of law or basis for granting leave to appeal established |
Alta Vale Residential Pty Ltd v The Owners – Strata Plan No. 95693 [2024] NSWCATAP 212 Consumer and Commercial Division Decision of: R C Titterton OAM, Senior Member; P H Molony, Senior Member Catchwords: APPEALS — Interlocutory decision - Leave to appeal — Refusal of adjournment – leave to appeal refused. APPEALS — Point of law taken below – whether new point of law should be allowed on appeal new point of law not allowed. BUILDING AND CONSTRUCTION – Occupation Certificate – whether document purporting to be an interim occupation certificate authorised use and occupation of the whole of the building – whether running of limitation period for breach of a statutory warranty under the Home Building Act contingent on such authorisation – whether occupation certificate issued in contravention of s 109H(2) of the Environmental Planning and Assessment Act 1970 (NSW) is an occupation certificate for the purposes of s 4C of the Home Building Act 1989 (NSW) LAND LAW – Strata Titles - Action begun by Chairperson acting for owners corporation without special resolution authorising proceedings — Ratification by the owners corporation — Expiration of limitation period applicable to cause of action — Whether owners corporation entitled to adopt action after expiry of limitation period. |
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Martins-Lopes v Keller [2024] NSWCATAP 215 Consumer and Commercial Division Decision of: D Ziegler, Principal Member; S de Jersey, Senior Member Catchwords: COSTS – rules 38 and 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) – whether there are special circumstances warranting an award of costs – special circumstances not established. |
YJM v Public Guardian [2024] NSWCATAP 216 Guardianship Division Decision of: I Coleman ADCJ, Principal Member; A Suthers, Principal Member; L Porter, General Member Catchwords: APPEALS – decision of Guardianship Division to renew guardianship order on review – allegation of bias – allegations of procedural unfairness |
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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. |
