NCAT Appeal Panel Decisions Digest Issue 11 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 November 2021:
Petrovic v Bluelone Pty Ltd atf Mark Hoffman Family Trust [2021] NSWCATAP 364 - In which Appeal Panel dismissed an appeal from a decision of the Consumer and Commercial Division which found that the appellant was vicariously liable for damage to the front door of the premises she rented from the respondent. Although the Appeal Panel found that the door was damaged in the commission of a domestic violence offence, it could not conclusively find how or by whom the door was damaged. Body Sculpting Clinics (Bondi Junction) Pty Ltd v Kokkinis [2021] NSWCATAP 362 - Appeal Panel allowed an appeal from the Consumer and Commercial Division and remitted the matter back to that division for a new hearing, because, in the circumstances of the hearing, the appellant was denied procedural fairness in not being informed that it had a right to cross-examine the other party’s expert witness. David v Langman [2021] NSWCATAP 360 - In which the Appeal Panel partly allowed an appeal from a decision of the Consumer and Commercial Division in which the respondent tenants had been granted $15,000 compensation. The Appeal Panel found the Tribunal had erred in: failing to identify the cause of action which underpinned the award of compensation; failing to provide adequate reasons; and either incorrectly finding that the tenants were legally entitled to unilaterally reduce the rent they would pay for the premises, or failing to give adequate reasons for finding the rent was excessive. These issues were remitted to the Tribunal for redetermination. STAR Training Academy Pty Ltd v Commissioner of Police [2021] NSWCATAP 370 - In which the Appeal Panel dismissed an appeal from the Administrative and Equal Opportunity Division. The appellant’s approval to provide training was revoked by the respondent, and the appellant sought administrative review of that decision. The Appeal Panel found that the respondent’s decision was not an administratively reviewable decision under s 29 of the Security Industry Act 1997 (NSW). Palm Lake Resort P/L v King and Metcalfe (No 2) [2021] NSWCATAP 355 - In which the Appeal Panel ordered that the appellant pay the respondents’ costs on the ordinary basis. In making its decision, the Appeal Panel considered the benefit of skilled legal representation to the Tribunal and the parties; the efficient use of the Tribunal’s resources; and the public importance of the matter, among other considerations.
Each case title is hyperlinked to the full decision available on NSW Caselaw. | | | Petrovic v Bluelone Pty Ltd atf Mark Hoffman Family Trust [2021] NSWCATAP 364 Consumer and Commercial Division - Tenancy The Hon F Marks, Principal Member; L Wilson, Senior Member
In sum: The Appeal Panel dismissed an appeal from a decision of the Consumer and Commercial Division which found that the appellant was vicariously liable for damage to the front door of the premises she rented from the respondent. Although the Appeal Panel found that the door was damaged in the commission of a domestic violence offence, it could not conclusively find how or by whom the door was damaged.
Facts: The appellant rented an apartment from the respondent, and during the tenancy the front door was damaged. The respondent applied to the Tribunal which ordered the appellant to pay the respondent $1,540 by way of compensation to be deducted from the rental bond. The appellant relied on s 54(1A) of the Residential Tenancies Act 2010 (NSW) (RT Act) in submitting that the door was damaged by her former husband during the commission of a domestic violence offence, and that she is not vicariously liable to the respondent to pay for the cost of a replacement door. The appellant said she slammed the door in the course of an argument, and then heard a loud bang; when she checked the door she saw her husband had damaged it. The Tribunal found that no domestic violence offence, as defined in s 11 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), had been committed for the purposes of s 54(1A), and considered a police statement in which the appellant had said that she was not scared or fearful of her ex-husband in regard to her own safety and that he was not violent ([1]-[7]).
Held (dismissing the appeal):
(i) The police statement referred to by the Tribunal related to provisions of an apprehended violence order and cannot, without more, be said to be relevant to the circumstances which prevailed at the time that the door was damaged. The appellant stated to police on other occasions that she feared for her safety at the time the door was damaged. There is no doubt that the damage to the door was sustained during the commission of a domestic violence offence ([22]).
(ii) The burden of establishing that s 54(1A) applies lies on the appellant. In order for her to escape vicarious liability for the damage sustained to the door the Tribunal must be satisfied to the civil standard of proof that the door was damaged by the ex-husband in the course of him committing a domestic violence offence. This requires the determination of what was the real and effective cause of the damage sustained to the door ([25]).
(iii) Because of the competing versions of what occurred given by the appellant, The Appeal Panel found it equally plausible that the door was damaged when the appellant slammed it shut, whether or not it was slammed shut against some part of the body of her ex-husband. The Appeal Panel was not persuaded that, in all the circumstances, it was more likely than not that the ex-husband damaged the door by initiating some physical action on his part rather than merely resisting the door being closed upon him. The Appeal Panel’s inability to come to any positive conclusion is compounded by its complete lack of knowledge as to the materials with which the door was constructed, the nature and extent of the damage sustained to it, and any assistance whether of an expert nature or otherwise about what might have caused the particular damage ([26]).
(iv) The appellant has not discharged the burden of demonstrating that the real and effective cause of the damage to the door was created by a person other than the appellant. Although the Tribunal erred in its application of s 54(1A), s 54 does not operate to relieve the tenant from liability to compensate the landlord for the cost of replacing the door ([27]-[29]). | Body Sculpting Clinics (Bondi Junction) Pty Ltd v Kokkinis [2021] NSWCATAP 362 Consumer and Commercial Division - Consumer Claim G Curtin SC, Senior Member; A Lo Surdo SC, Senior Member
In sum: The Appeal Panel allowed an appeal from the Consumer and Commercial Division and remitted the matter back to that division for a new hearing, because, in the circumstances of the hearing, the appellant was denied procedural fairness in not being informed that it had a right to cross-examine the other party’s expert witness.
Facts: The parties were engaged in a dispute regarding a consumer claim under the Australian Consumer Law, and the claim was heard by telephone in the Consumer and Commercial Division. The Tribunal twice noted in its judgment that the appellant did not seek to cross-examine any of the respondent’s expert witnesses, presupposing the appellant knew it could seek to cross-examine those witnesses. The sound recording shows the Tribunal did not explain to the parties its procedures nor the right to cross-examine the other party’s witnesses, however the Tribunal did offer the respondent a chance to question the appellant, which was accepted. The Tribunal found in favour of the respondent and the appellant appealed ([3], [12], [15]).
Held (allowing the appeal):
(i) Courts and tribunals have an overriding duty to ensure that a trial is fair. A trial in which a judge allows an unrepresented party to remain in ignorance of a fundamental procedure which, if invoked, may prove advantageous to them, can hardly be labelled as “fair”. Appropriate steps must be taken to ensure that an unrepresented litigant has sufficient information about the practice and procedure of the court or tribunal, so far as is reasonably practicable for the purpose of ensuring a fair trial, and enable the party to make an effective and informed choice. The application of this principle will vary depending on the circumstances of the case ([16]).
(ii) The Tribunal is subject to the common law obligation to inform an unrepresented litigant of the right to cross-examine and to ask the litigant whether he or she wishes to ask a witness questions, and inform them that that common law obligation was not excluded by s 38(5)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). It is wholly within the legitimate power of the Tribunal to dispense with cross-examination, if it thinks it fit to do so in accordance with the terms of s 38 of the NCAT Act. The only limitation upon its power to do so consists in its obligation to conform to the rules of procedural fairness ([18]-[19]).
(iii) Although there was no direction that the parties’ witnesses attend for cross-examination and neither the doctors nor Ms Salem were present or otherwise available for cross-examination on the day of the hearing, in the event that the appellant, having been informed of the procedures of the Tribunal, elected to cross-examine any of the witnesses who were not present, an adjournment would have enabled that cross-examination to occur, as several of the quoted authorities point out ([32]).
(iv) The Tribunal did not explain the Tribunal’s procedures to the parties and did not advise them that they may ask to cross-examine the other party’s witnesses. The Tribunal also erred in not offering the appellant the opportunity to question the respondent’s witness as was offered to the respondent. The express references to the absence of any request to cross-examine those witnesses in the Tribunal’s reasons, and the context in which those statements were made, suggest that the absence of any request by the appellant to cross-examine those witnesses played a not insignificant part in the Tribunal’s reasoning process in coming to its conclusions. A practical injustice was visited upon the appellant and the appeal was allowed ([31], [33]-[35]). | David v Langman [2021] NSWCATAP 360 Consumer and Commercial Division - Tenancy G Curtin SC, Senior Member; A Lo Surdo SC, Senior Member
In sum: The Appeal Panel partly allowed an appeal from a decision of the Consumer and Commercial Division in which the respondent tenants had been granted $15,000 compensation. The Appeal Panel found the Tribunal had erred in: failing to identify the cause of action which underpinned the award of compensation; failing to provide adequate reasons; and either incorrectly finding that the tenants were legally entitled to unilaterally reduce the rent they would pay for the premises, or failing to give adequate reasons for finding the rent was excessive. These issues were remitted to the Tribunal for redetermination.
Facts: The respondents (the tenants) leased a property for 12 months from the appellants (the landlords). Shortly after the tenancy commenced, water ingress, a collapsing roof and other repair and maintenance issues occurred; four months later the tenants commenced proceedings at the Tribunal seeking orders as to repairs, excessive rent and compensation. The Tribunal terminated the tenancy by consent and ordered the tenants to pay an occupation fee until vacant possession was given. At a later hearing, the Tribunal found that the conditions the tenants had to endure and the loss of amenity were considerable, and ordered $15,000 in compensation be paid to the tenants by the landlords, and ordered the return of the bond to the tenants ([7], [9]-[13]).
Held (allowing the appeal in part):
(i) The Tribunal failed to identify the cause of action which underpinned the award of compensation. It may have been: a breach of the covenant of quiet enjoyment (Residential Tenancies Act 2010 (NSW) (RT Act), s 50); a breach of the landlords’ obligation to provide and maintain the premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises (RT Act, s 60); or an order that rent payable under the residential tenancy agreement was excessive, having regard to the reduction or withdrawal by the landlords of any goods, services or facilities provided with the premises (RT Act, s 44(1)(b)) ([16]-[17]).
(ii) The Tribunal likely had in mind the first of the above options. If so, the Tribunal was obliged to consider and explain its reasoning as to the existence of the relevant obligation, how it was breached and how it assessed the amount of compensation flowing from that breach or breaches. The Tribunal awarded compensation under s 187(1)(d) of the RT Act, for which a time limit applies requiring a tenant to apply to the Tribunal for an order in relation to a breach of a residential tenancy agreement within three months after the tenant becomes aware of the breach ([18]-[20]).
(iii) It may be that the Tribunal made the award on the basis of recurring breaches (i.e. failure to repair the roof and prevent water ingress), but it is a fundamental obligation that the Tribunal explain its reasons so that the parties, particularly the losing party, understand why the case was lost and why their arguments were rejected ([20], [22]).
(iv) The standard required of reasons is not one of perfection, and it is not the function of the appeal to determine the optimal level of detail required in the Tribunal’s reasons, but rather to determine the minimum acceptable standard. The Tribunal’s reasons did not meet the minimum acceptable standard as they did not explain to the losing party, even in simple terms, which obligation they had breached, how they had breached it and why the sum awarded was reasonable compensation for that breach. The matter was remitted to the Tribunal as originally constituted to correct these errors ([25]-[27]).
(v) The Tribunal erred in its reasons for finding that the tenants’ unilateral decision to partially withhold rent for 10 weeks “was justifiable in the circumstances”, without further explanation. It is not evident what the Tribunal meant by this, but it was not legally justifiable for the tenants to unilaterally decrease the rent; even if the landlords were in breach of the agreement, the tenants were still obliged to pay the full rent. Alternatively, if the Tribunal came to the view that orders should have been made for a rent reduction pursuant to s 44(1)(b) of the RT Act then there is a complete absence of reasons explaining that decision. This issue was also remitted to the Tribunal ([34]-[35], [37]-[38]).
(vi) The landlords’ failed to identify any ground of appeal in relation to their appeal against the Tribunal’s order to refund the bond to the tenants. The bond has already been returned and as the landlords can make claims for allegedly unpaid rent and water charges in the Tribunal, there is no utility in overturning the Tribunal’s order ([44]-[48]). | STAR Training Academy Pty Ltd v Commissioner of Police [2021] NSWCATAP 370 Administrative and Equal Opportunity Division A Suthers, Principal Member; P H Molony, Senior Member
In sum: The Appeal Panel dismissed an appeal from the Administrative and Equal Opportunity Division. The appellant’s approval to provide training was revoked by the respondent, and the appellant sought administrative review of that decision. The Appeal Panel found that the respondent’s decision was not an administratively reviewable decision under s 29 of the Security Industry Act 1997 (NSW).
Facts: The appellant (STAR) is an accredited provider of training relevant to various occupations. It holds a master licence under the Security Industry Act 1997 (NSW) (SI Act) authorising it to engage people in the provision of security activities; the licence does not confine the security activities which STAR may undertake. In December 2014, the respondent (the Commissioner) approved STAR under s 15 of the SI Act to deliver training, assessment and instruction in various security licence classes, of a kind approved and to a standard required by the Commissioner. In September 2021 the Commissioner revoked STAR’s approval to provide training, assessment and instruction, pursuant to s 27A(2)(b) of the SI Act. STAR sought administrative review and a stay of the decision at the Tribunal, but the Tribunal found it did not have jurisdiction to determine the matter under s 60 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) and dismissed the proceedings under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) ([1]-[7]).
STAR appealed on the basis that the Tribunal erred in finding that the Commissioner’s decision to revoke an approval under s 27A is not subject to administrative review under s 29(1) of the SI Act. The issue raised on appeal was therefore one of statutory interpretation concerning whether the revocation of an approval to provide training under s 27A gives rise to a right to seek administrative review under s 29(1), which grants a right to seek administrative review of decisions of the Commissioner to: refuse or fail to grant or renew a licence; to place a condition on a licence; or to revoke or suspend a licence ([13]-[16]).
Held (dismissing the appeal):
(i) When ascertaining the meaning of a statutory provision, any interpretation of a statutory provision must begin with and end with consideration of the statutory text; however the statutory context must be considered from the outset in order to understand the meaning of the statutory language. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision. Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy ([54]-[55]).
(ii) STAR’s construction of s 29(1)(c) would see the words “the revocation or suspension of a licence” read as “including an approval” but reading words into a section that are not there should be approached cautiously. STAR submitted that the location of s 27A in Part 2 Div 3, in which all the decisions that give rise to a right to seek administrative review are located, implies a legislative intention of decisions under s 27A to also be subject to administrative review. However a number of other contextual factors point to s 27A being separate to the other provisions of that division, such as: the consistent use of the word “approved” in the context of training and trainers for licensees; the apparent statutory purpose of s 27A, and its accompanying amendments, in providing for focused and ongoing training of licensees; and the stand-alone nature of s 27A, which refers to approvals while other provisions in Div 3 refer to licences ([81], [83], [90]-[91]).
(iii) It is noteworthy that when s 27A was introduced as an amendment to the SI Act, it would have been open to the Parliament to provide for administrative review of decisions made under that section by amending s 29(1) so that it would apply to approvals under s 27A. This was not done ([85]).
(iv) Though there may exist an anomaly regarding avenues for administrative review of s 27A decisions, an anomaly must be a very serious one before a court or tribunal is justified in using that anomaly as a reason for rejecting what otherwise seems the correct construction. The case for a real anomaly in the present circumstances was a weak one; there are many examples of statutes where Parliament has seen fit to grant administrative review rights in respect of some decisions made under an Act but not to others. While the idea that there should be review available of all administrative decisions may be desirable, the reality is that the Parliament has power to legislate that not all such decisions are reviewable, and the purpose of legislation must be derived from what the legislation says, and not from any preconceived assumption about the desired or desirable reach or operation of the relevant provisions ([86]-[88]).
(v) The Commissioner revoked STAR’s approval, but did not purport to revoke or suspend STAR’s master licence. Contrary to STAR’s submission, such a revocation was not functionally synonymous with a revocation of the master licence, due to the financial effect of STAR not being able to provide training. Insofar as STAR’s individual circumstances are concerned, they do not form part of the statutory context to which regard may be had when construing the Act and are irrelevant in construing the section. The evident purpose of the introduction of s 27A was to make provision for approved training, instruction and assessment to be delivered for the purposes of ss 15(1)(d), 17 (7), 21A and 23E, by approved training providers, who would necessarily be master licence holders. The purpose of s 27A is different to that of the rest of Part 2, Division 3, which is concerned with the regulation of licences, rather than the provision of approved training to licensees by approved trainers ([93]-[95]).
(vi) Considering the provisions of s 29(1) in the context of the SI Act as a whole, it is clear that the Tribunal was correct in finding that an approval is not a licence, and that the decision by the Commissioner to revoke STAR’s approval to provide training, assessment and instruction under s 27A does not give rise to a right to seek administrative review on the merits in the Tribunal. There is no reason to give s 29(1) other than its clear literal meaning, which restricts the right to seek administrative review to specified decisions relating to licences ([98]).
(vii) It cannot be argued that in revoking the approval the Commissioner essentially placed a condition on STAR’s master licence. There was no condition imposed and the Commissioner’s power to both approve and revoke approvals is found in s 27A. STAR’s appeal therefore failed ([99]). | Palm Lake Resort P/L v King and Metcalfe (No 2) [2021] NSWCATAP 355 Consumer and Commercial Division - Residential Communities A Suthers, Principal Member; G K Burton SC, Senior Member
In sum: The Appeal Panel ordered that the appellant pay the respondents’ costs on the ordinary basis. In making its decision, the Appeal Panel considered the benefit of skilled legal representation to the Tribunal and the parties; the efficient use of the Tribunal’s resources; and the public importance of the matter, among other considerations.
Facts: The respondents are residents of a residential community owned by the appellant. The appellant sought to charge site fees on a higher basis than that for which the residents contended, and some residents sought a refund of any excess. The respondents commenced proceedings at the Tribunal ([1]).
The site fee agreements stipulated that the fortnightly site rent amount would be reviewed annually and increased by whichever amount was greater, either CPI or 3/3.5%, the precise percentage depending on the individual agreement. The Tribunal found that this was contrary to s 66(2) of the Residential (Land Lease) Communities Act 2013 (NSW) (RLLC Act), which required fee increases to be determined by the lower of the two amounts, rather than the greater, where there are two fixed methods by which an increase may be made. The Tribunal ordered the appellant to vary the relevant term under s 157(1)(b). The Tribunal found that the orders that it may make listed under s 157 were ancillary to the substantive power of s 68, which empowers the Tribunal to order a refund of overpaid site fees if the increase is not compliant, and does not form a separate basis for relief. The appellant appealed and the Appeal Panel dismissed the appeal in the substantive decision ([4]-[14]).
Held (ordering the appellant to pay the respondents’ costs):
(i) In respect of litigation with multiple parties where a party’s net wealth in particular may be significantly affected on an ongoing as well as historical basis, it is arguable that the ordinary costs rules may be applicable. The Appeal Panel reasoned that, in the exercise of discretion on costs, it should consider such a possibility. On that premise, the respondent residents achieved success in total on the appeal as it was fought, on very specific grounds, and would be entitled to their costs of the appeal on the ordinary basis, with no basis for allocation between distinct issues ([19]-[20]).
(ii) The special circumstances warranting an award of costs that form an inclusive list in s 60(3) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) reflect bases that justify an award of costs on an indemnity basis under the ordinary costs rules. In this context there must be a distinction, if only of severity of impact or conduct, between there being threshold matters to justify an award of costs at all and an award of costs on an indemnity basis. Otherwise, special circumstances would always justify an award of indemnity costs and that could be a more generous regime than if the ordinary costs rules applied ([26]).
(iii) The Appeal Panel founds that the circumstances of the present appeal strongly exhibited special circumstances for an ordinary basis costs order in favour of the respondent residents. The Tribunal’s public resources, and the resources of the parties, were efficiently used to determine a matter of commercial and personal significance on which there was a paucity of applicable authority on the relevant legislative intent. The matter was also of public importance since a purpose of the legislation is to regulate what the community, via its legislation, regards as the proper balance of interests in the relations between owners and residents ([34]).
(iv) Although the nature of the proceedings and their wider importance rendered skilled legal representation valuable to the Appeal Panel, these circumstances, in addition to the other circumstances considered, did not justify an award of costs on the indemnity basis. Costs were awarded on the ordinary basis as agreed or assessed ([35]-[36]). | | | Everson v Barazi [2021] NSWCATAP 341 Consumer and Commercial Division - Home Building Decision of: Cowdroy ADCJ, Principal Member; P Molony, Senior Member Catchwords: Appeal – orders made in absence of appellant – appellant failing to comply with directions for the preparation of the hearing – appellant failing to attend hearing – principles to be applied where a party seeks a second hearing | Kumar v RSK Constructions Pty Ltd [2021] NSWCATAP 342 Consumer and Commercial Division - Home Building Decision of: The Hon F Marks, Principal Member; P H Molony, Senior Member Catchwords: APPEALS – applications brought before Consumer and Commercial Division – failure by parties to raise issues identified in directions hearings – failure by Tribunal to consider fundamental issues including identification of contracting parties, the contract and compliance with statutory requirements – failure to accord procedural fairness – held proceedings miscarried – orders set aside and proceedings remitted for reconsideration before Tribunal differently constituted | | DVT v Commissioner of Police (No 2) [2021] NSWCATAP 344 Administrative and Equal Opportunity Division Decision of: S Westgarth, Deputy President; M Harrowell, Deputy President Catchwords: ADMINISTRATIVE LAW- appeal against costs order following late withdrawal of application-special circumstances | | Alhashemi v Presleys Pty Ltd [2021] NSWCATAP 346 Consumer and Commercial Division - Motor Vehicles Decision of: The Hon F Marks, Principal Member; R C Titterton OAM, Senior Member Catchwords: APPEAL – consumer appeal relating to purchase of motor vehicle – appellant had failed to provide evidence to substantiate allegations that vehicle was defective – appeal dismissed | Dunn & Pilcher Constructions Pty Ltd v Woodos Australia Pty Ltd [2021] NSWCATAP 347 Consumer and Commercial Division - Home Building Decision of: S Westgarth, Deputy President; J Currie, Senior Member Catchwords: APPEAL - Home Building Act - builders claim against subcontractor in respect of builders liability to homeowners - statutory warranties - whether subcontractors warranties are coextensive with builders warranties. | Reid & Robinson Builders Pty Limited trading as John Robinson Elite Constructions v Cleal [2021] NSWCATAP 348 Consumer and Commercial Division - Home Building Decision of: Coleman ADCJ, Principal Member; J Currie, Senior Member Catchwords: APPEAL - order transferring proceedings to District Court - extension of time to appeal required - whether decision under appeal “interlocutory” or “ancillary”- whether, if required, leave should be granted - Respondents’ claim in substantive proceedings held to be “otherwise maintainable at law”- time to appeal not extended - leave to appeal refused - appeal dismissed | Kork v Merheb [2021] NSWCATAP 349 Consumer and Commercial Division - Tenancy Decision of: G Blake AM SC, Senior Member; G Curtin SC, Senior Member Catchwords: ADMINISTRATIVE LAW — particular administrative bodies — NSW Civil and Administrative Tribunal – procedural fairness – late served evidence not admitted – refusal of adjournment application so that late served evidence could be admitted - denial of procedural fairness cannot be generated by a deliberate or conscious decision not to comply with the Tribunal’s directions of which sufficient notice had been given LEASES AND TENANCIES – difference between rent reduction for reduction or withdrawal of services, goods or facilities under s 44 of the Residential Tenancies Act 2010 (NSW) and damages for breach of the covenant for quiet enjoyment | Insurance and Care NSW v EEH [2021] NSWCATAP 350 Administrative and Equal Opportunity Division Decision of: Cole DCJ, Deputy President; Dr J Lucy, Senior Member Catchwords: ADMINISTRATIVE LAW — Whether reviewable error of law — whether procedural fairness accorded | | Woodbridge v Degabrielle [2021] NSWCATAP 352 Consumer and Commercial Division - Commercial Decision of: G Blake AM SC, Senior Member; G Burton SC, Senior Member Catchwords: ENVIRONMENT AND PLANNING — Fences and boundaries — “Dividing fence” — no appellable error | De Marco v Macey (No 2) [2021] NSWCATAP 354 Consumer and Commercial Division - Home Building Decision of: T Simon, Principal Member; G K Burton SC, Senior Member Catchwords: COSTS — Party/Party — Appeals — application for indemnity costs — no reasonable prospects of success | | Segal v Chief Commissioner of State Revenue [2021] NSWCATAP 356 Administrative and Equal Opportunity Division Decision of: Coleman ADCJ, Principal Member; Dr J Lucy, Senior Member Catchwords: APPEALS – Revenue Law - Impact of Supreme Court orders declaring real property to be partnership assets, appointing receivers and mangers for their sale on equitable interests of registered proprietors considered- Sale pursuant to Court orders to apparent purchaser held to be sale of the fee simple- Where duty levied on whole of stated sale price of properties sold to apparent purchasers- Where nominal duty levied on subsequent transfers by apparent purchasers to real purchasers- No error on a question of law demonstrated | Arjunan v Neighbourhood Association DP No 285853 [2021] NSWCATAP 357 Consumer and Commercial Division - Strata and Community Schemes Decision of: A Suthers, Principal Member; R Titterton, Senior Member Catchwords: APPEAL – extension of time to appeal – prior appeal lodged and withdrawn in respect of the same decisions – appeal by other party concluded before appeal renewed | Kotsakis v Hidajat [2021] NSWCATAP 358 Consumer and Commercial Division - Tenancy Decision of: D Charles, Senior Member; J Currie, Senior Member Catchwords: APPEAL – termination of residential tenancy - orders for rent arrears and with respect to a rental bond – monetary limit of Tribunal’s jurisdiction – whether any procedural unfairness in a hearing of shorter duration - no error of law – no substantial miscarriage of justice – leave to appeal refused PRACTICE & PROCEDURE – late adjournment request – short adjournment granted but with appeal hearing proceeding on the day – legislative obligation of parties and their legal representatives to give effect to the Tribunal’s guiding principle | | David v Langman [2021] NSWCATAP 360 Consumer and Commercial Division - Tenancy Decision of: G Curtin SC, Senior Member; A Lo Surdo SC, Senior Member Catchwords: ADMINISTRATIVE LAW — particular administrative bodies — NSW Civil and Administrative Tribunal – procedural fairness — failure to give reasons — adequacy of reasons – necessity to identify cause of action and provide reasons explaining why the Tribunal considered each element of the cause of action had been established LEASES AND TENANCIES – obligation to pay rent generally independent of the landlord’s obligations – tenants not permitted to unilaterally withhold rent because of breach of tenancy agreement by landlord | Hunt v Lang [2021] NSWCATAP 361 Consumer and Commercial Division - Tenancy Decision of: R C Titterton OAM, Senior Member; D Robertson, Senior Member Catchwords: LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – Landlord’s obligation to ensure there is no legal impediment to occupation of residential premises as a residence – Definition of “residential premises” – Requirement that premises be intended to be used as a residence – Necessary to consider intention of parties at time of entry into a tenancy agreement WORDS AND PHRASES – “Residential premises” | Body Sculpting Clinics (Bondi Junction) Pty Ltd v Kokkinis [2021] NSWCATAP 362 Consumer and Commercial Division - Consumer Claim Decision of: G Curtin SC, Senior Member; A Lo Surdo SC, Senior Member Catchwords: ADMINISTRATIVE LAW — hearing rule – right to cross-examine witnesses - failure to inform of and provide a party the opportunity to cross-examine – reliance on absence of cross-examination in arriving at decision - breach of procedural fairness – touchstone of fairness - practical injustice resulting from breach of obligation to provide procedural fairness | Haggerty v Dooley [2021] NSWCATAP 363 Consumer and Commercial Division - Tenancy Decision of: Cowdroy ADCJ, Principal Member; G K Burton SC, Senior Member Catchwords: RESIDENTIAL TENANCY - rent reduction for alleged disturbance – time limits | Petrovic v Bluelone Pty Ltd atf Mark Hoffman Family Trust [2021] NSWCATAP 364 Consumer and Commercial Division - Tenancy Decision of: The Hon F Marks, Principal Member; L Wilson, Senior Member Catchwords: APPEALS – residential tenancy agreement – damage to property – whether tenant caused damage or damage caused by former husband of tenant during the commission of a domestic violence offence – held tenant did not discharge burden of proof that damage caused by former husband | Nedanovski v Italian Automobiles Group Pty Ltd [2021] NSWCATAP 365 Consumer and Commercial Division - Motor Vehicles Decision of: The Hon F Marks, Principal Member; K Ransome, Senior Member Catchwords: APPEAL – claim for compensation based upon expert report – expert report poorly expressed – held that Member misunderstood the report – appeal upheld –amount of compensation increased COSTS – claim for recovery of cost of expert report as costs refused – the necessity to obtain an expert report does not constitute special circumstances | Teixeira v The Owners SP No 37534 [2021] NSWCATAP 366 Consumer and Commercial Division - Strata Decision of: A Suthers, Principal Member; R C Titterton OAM, Senior Member Catchwords: APPEALS – appeal lodged out of time – no evidence to provide a proper explanation for the delay | | Sorbara v The Owners – Strata Plan 75666 [2021] NSWCATAP 369 Consumer and Commercial Division - Strata Decision of: The Hon F Marks, Principal Member; K Ransome, Senior Member Catchwords: APPEAL – failure by appellant to provide recording and transcript of proceedings from which appeal is brought STRATA TITLES LAW – exclusive use and enjoyment by appellant of area created by by-law – by-law provided for appellant to be responsible to keep area in good repair – held appellant responsible for cost of maintaining the area | STAR Training Academy Pty Ltd v Commissioner of Police [2021] NSWCATAP 370 Occupational Division Decision of: A Suthers, Principal Member; P H Molony, Senior Member Catchwords: APPEAL – internal appeals - whether dismissal for want of jurisdiction is an ancillary or interlocutory decision of the Tribunal – leave not required to appeal ancillary decision – appeal dismissed ADMINISTRATIVE LAW – Civil and Administrative Tribunal – administrative review - no jurisdiction to review a decision of the Commissioner of Police to revoke an approval of a training organisation under s 27A of the Security Industry Act 1997 | Above All Air Co Pty Ltd v Dandan Automotive Pty Ltd [2021] NSWCATAP 371 Consumer and Commercial Division - Motor Vehicles Decision of: A Suthers, Principal Member; D Robertson, Senior Member Catchwords: APPEALS — Leave to appeal — Significant new evidence that was not reasonably available at the time of hearing at first instance — Not sufficient that appellant did not realise evidence was necessary | Camden City Cars Pty Ltd v Fletcher [2021] NSWCATAP 372 Consumer and Commercial Division - Motor Vehicles Decision of: P Durack SC, Senior Member; D Charles, Senior Member Catchwords: APPEALS-extension of time sought for lodging appeal-incorrect explanation for delay-unmeritorious grounds of appeal-extension of time refused. CIVIL PROCEDURE --procedural fairness-non-attendance of party at telephone hearing-party contended that this occurred through no fault of party- party’s representative alleged he was waiting for the Tribunal’s call but no call was received-unreliable evidence to support the contention -in any event, no possibility of different outcome. CONSUMER LAW-purchase of second-hand motor vehicle-breach of Australian Consumer Law guarantees | Day v Quince’s Quality Building Services Pty Ltd (No 2) [2021] NSWCATAP 373 Consumer and Commercial Division - Home Building Decision of: Coleman ADCJ, Principal Member; R C Titterton OAM, Senior Member Catchwords: COSTS – discretion to award costs – general rule is each party is to pay their own costs – where party has been unsuccessful on some issues – where those issues have not significantly added to costs | Nolan v St George Community Housing Limited [2021] NSWCATAP 374 Consumer and Commercial Division - Social Housing Decision of: G Blake AM SC, Senior Member; J Currie, Senior Member Catchwords: LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Social housing — Social housing tenancy agreement - Application by landlord for special performance order - Whether tenant had interfered or caused or permitted any interference with neighbour’s reasonable peace, comfort or privacy Deficiencies in fact-finding process likely to have produced unfair result - No proper basis for findings as to tenant’s culpability for ‘causing or permitting interference’ - Leave to appeal granted - Appeal allowed - New order substituted | Klaus v Wallace [2021] NSWCATAP 375 Consumer and Commercial Division - Motor Vehicles Decision of: K Ransome, Senior Member; Dr J Lucy, Senior Member Catchwords: APPEAL – consumer claim – liability of person involved in sale of caravan – denial of procedural fairness in adding respondent at hearing – whether respondent is a supplier within the meaning of the Fair Trading Act 1987 – inadequacy of reasons | | De Leon v Saade Construction Pty Ltd [2021] NSWCATAP 377 Consumer and Commercial Division - Tenancy Decision of: G Blake AM SC, Senior Member; D Goldstein, Senior Member Catchwords: APPEAL – Residential tenancy – Application for an extension of time to file Notice of Appeal – No question of principle | Modern Design Wardrobes Pty Ltd v Clayton [2021] NSWCATAP 378 Consumer and Commercial Division - Home Building Decision of: Cowdroy ADCJ, Principal Member; K Ransome, Senior Member Catchwords: APPEALS - Consumer claim – contract for the supply and installation of wardrobes – defects in design and installation – breach of statutory warranties – money order directed against supplier and cost of removal – whether decision was contrary to the evidence or otherwise unreasonable – whether Tribunal considered the rights of the appellant – whether money order should have been made – whether costs of removal should be awarded against appellant | Mahendran v NAS Property Services Pty Ltd [2021] NSWCATAP 379 Consumer and Commercial Division - Commercial Decision of: Cowdroy ADCJ, Principal Member; K Ransome, Senior Member Catchwords: APPEALS - consumer claim by property owner against property agent alleging failure to fulfil agency agreement – cause of action arising more than three years prior to the commencement of proceedings – action barred by limitation provisions contained in Fair Trading Act 1987 (NSW) | Towers v Awabakal Local Aboriginal Land Council [2021] NSWCATAP 380 Consumer and Commercial Division - Tenancy Decision of: G Curtin SC, Senior Member; D Fairlie, Senior Member Catchwords: ADMINISTRATIVE LAW — particular administrative bodies — NSW Civil and Administrative Tribunal – jurisdictional error – residential tenancy – residential tenancy agreement terminated by prior order of the Tribunal – jurisdictional error in purporting to terminate residential tenancy agreement which had been terminated by prior order of the Tribunal APPEALS — point not taken below — conduct of trial – had point been taken other party could possibly have called evidence to meet the point or conducted hearing differently – advancing party precluded from taking point for the first time on appeal | Pozo v Willtip Pty Ltd [2021] NSWCATAP 381 Consumer and Commercial Division Decision of: G Blake AM SC, Senior Member; J McAteer, Senior Member Catchwords: COSTS – circumstances where appeal withdraw - whether special circumstances for an award of costs | | NSW Land and Housing Corporation v Traynor [2021] NSWCATAP 383 Consumer and Commercial Division - Social Housing Decision of: D Charles, Senior Member; E Bishop, Senior Member Catchwords: APPEAL – whether took into account irrelevant considerations – no error of law RESIDENTIAL TENANCY -– termination of social housing agreement – illegal use under s 91 – scope of s 154E COSTS – no special circumstances | | | The Owners Strata Plan No 74698 v Jacinta Investments Pty Ltd [2021] NSWCATAP 387 Consumer and Commercial Division - Strata Decision of: M Harrowell, Deputy President; J Kearney, Senior Member Catchwords: LAND LAW – Strata Scheme – subdivision and transfer of common property – agreement to transfer – common property – agreement to grant of exclusive use rights – enforceability of agreement – certificate issued under Strata Schemes Development Act – conclusive evidence – when certificate operates – power of Tribunal to determine dispute concerning transfer of common property – power of Tribunal to make orders for the registration of an exclusive use by-law LAND LAW – Strata schemes –power of the Tribunal to make order under the Strata Schemes Management Act excluding a successful lot owner from being levied in respect of an award of damages and costs – operation of ss 90 and 104 of the Strata Schemes Management Act – scope of power under s 232 of the Strata Schemes Management Act | | DISCLAIMER: This publication has been prepared for information purposes only. The NCAT Appeal Panel Decisions Digest should not be relied on as legal advice nor is it a substitute for reading the decisions in full. NCAT does not accept any liability to any person for the information (or the use of the information) which is provided in this publication. |
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