NCAT Appeal Panel Decisions Digest Issue 11 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 November 2024: |
NSW Trustee and Guardian v FYV [2024] NSWCATAP 243: An Appeal Panel allowed an appeal in favour of the NSW Trustee after considering that NCAT failed to have regard to a substantial, clearly articulated argument. NCAT failed to engage with the NSW Trustee’s primary submission that the only feasible option to fund the estimated $70,000 annual shortfall between the Aunt’s expenses and liabilities was to sell her property. The Appeal Panel found that by concentrating almost exclusively on the Aunt’s emotional attachment to her home, NCAT at first instance lost sight of one of the critical issues it was required to resolve and this was inadvertent but significant.
|
Johnston v NSW Land and Housing Corporation [2024] NSWCATAP 227: An Appeal Panel allowed an appeal and remitted the proceedings to NCAT for reconsideration after finding that NCAT had misapplied the law relating to compensation under the Residential Tenancies Act 2010 (NSW) (RTA). Ms Johnston sought compensation for, amongst other things, the landlord’s breach of her right to quiet enjoyment of the residential premises under s 50 of the RTA, stating it had caused her “distress, disappointment, anxiety and embarrassment”. At first instance, NCAT excluded any consideration of stress and anxiety on the basis that the Civil Liability Act 2001 (NSW) (CLA) precludes an award being made under the RTA for non-economic loss for personal injury unless a certain threshold is met. The Appeal Panel found that NCAT erred in this respect, holding that a claim under the RTA for compensation for loss of quiet enjoyment of a premises, and for inconvenience, does not constitute a claim for personal injury damages.
|
|
Each case title is hyperlinked to the full decision available on NSW Caselaw. |
|
|
1. What are the principles which govern decisions made under the NSW Trustee and Guardian Act 2009 (NSW)? NSW Trustee and Guardian v FYV [2024] NSWCATAP 243 Administrative and Equal Opportunity Division A Britton, Deputy President; A Suthers, Principal Member
In sum: Section 39(a) of the NSW Trustee and Guardian Act 2009 (NSW) sets out various principles which need to be applied when making decisions about people incapable of managing their affairs. Of these principles, s 39(a) states that “the welfare and interests of such persons should be given paramount consideration”. However, a decision may still be the correct and preferable one notwithstanding that it is contrary to a subject person’s wishes. On balance, other considerations may weigh against the wishes of a subject person such as where a property needs to be sold in light of minimal cash reserves, a clear and pressing need to be able to access funds to pay for past and future expenses, and where other options are attended by significant uncertainty causing further delay.
Facts: The NSW Trustee and Guardian (NSW Trustee, the appellant) had been managing the estate of a woman (the Aunt) and decided to sell the Aunt’s home where she had been living prior to moving to residential aged care. The Aunt’s liabilities were continuing to grow, ownership of the property meant she was ineligible for an age pension and she had an annual shortfall of around $70,000 primarily relating to her care needs. Following an application made by the first respondent for administrative review of the sale decision, the Administrative and Equal Opportunity Division of NCAT set aside that decision and ordered that the application be remitted for reconsideration by the NSW Trustee. At first instance, NCAT found that the sale of the property would be inconsistent with many of the “section 39 principles”, including with the principle that the welfare and interests of the Aunt be given paramount consideration (NSW Trustee and Guardian Act 2009 (NSW), s 39(a)). It recommended that the NSW Trustee reconsider the sale and determine a different course of action to clear the Aunt’s debts. The NSW Trustee appealed from that decision, submitting that NCAT failed to have regard to a substantial, clearly articulated argument.
Two of the Aunt’s four nieces and nephews supported the sale, and the other two opposed it and were in regular communication with the NSW Trustee about a reverse mortgage proposal. NSW Trustee’s Financial Planning Unit advised against obtaining a reverse mortgage and also against renting the property. They said that it was not financially viable to rent the property because the estimated annual rental income was insufficient to fund the Aunt’s recurring annual cashflow shortfall and substantial repairs and maintenance were required. With respect to the reverse mortgage option, this was also not considered viable as there was no suggestion as to how the loan would be repaid which is a common condition for reverse mortgage arrangements.
Held (allowing the appeal; affirming the decision made by the NSW Trustee and Guardian): (i) The reasons at first instance do not include any analysis of the submission made by the NSW Trustee that the reverse mortgage proposal was not a feasible option. Whilst NCAT at first instance was not obliged to accept the NSW Trustee’s submission regarding the feasibility of various options, and was also not obliged to accept the factual assumptions which underpinned the sale decision, NCAT was still required to consider the argument because it was central to the NSW Trustee’s case. By failing to do so, NCAT failed to afford the NSW Trustee procedural fairness. Additionally, by focusing almost exclusively on the Aunt’s emotional attachment to the home, NCAT lost sight of one of the critical issues it was required to determine. The error was inadvertent but significant, and constituted a constructive failure to exercise jurisdiction and to accord the NSW Trustee procedural fairness (at [53]-[55]). |
(ii) Having allowed the appeal on this basis, the Appeal Panel proceeded to redetermine the matter by way of rehearing. Whilst accepting that the Aunt had repeatedly expressed the view she wishes to retain the property and this is a powerful consideration in favour of retaining the property, on balance, the correct and preferable decision is to sell the property. This decision was made in light of several considerations, including that there is a clear and pressing need to make arrangements to satisfy the Aunt’s creditors and to pay her ongoing expenses. The Aunt has been unable to pay for goods and services that may improve her quality of life, and she is not currently financially independent. Additionally, despite holding significant assets, it appears the property is currently uninsured as the Aunt cannot afford to pay for insurance. It is not in the Aunt’s interests that there be any doubt as to whether her sole asset is insured. It is also not possible to say whether an application for a reverse mortgage would be successful, or what the specific terms of such an arrangement would be. The decision to sell the property is both the correct and preferable decision and gives paramount consideration to the Aunt’s welfare and interests, despite being contrary to her wishes (at [100]-[110]). |
2. Do feelings of stress and anxiety arising from a breach of quiet enjoyment constitute ‘personal injury’ under the CLA, such that an award for damages under the RTA would be precluded unless a certain threshold was met? Johnston v NSW Land and Housing Corporation [2024] NSWCATAP 227 Consumer and Commercial Division K Ransome, Principal Member; D Charles, Senior Member
In sum: Whilst the provisions of the CLA preclude an award under the RTA for non-economic loss for personal injury unless a certain threshold is met, feelings of stress and anxiety arising from a breach of quiet enjoyment are not forms of personal injury falling for assessment under the CLA.
Facts: Ms Johnston (the appellant) sought several orders under the RTA, including seeking compensation and a rent reduction as well as requesting that the landlord, the NSW Land and Housing Corporation, carry out repairs to the property.
At first instance, NCAT was not satisfied the landlord was properly notified as to the repair issues where a tenant advocate had simply emailed a client services officer in relation to the repairs, rather than via the process of requesting repairs and maintenance which is prescribed by the landlord, in the context of the landlord undoubtedly dealing with thousands of repair requests. However, NCAT also found the landlord’s delay in rectifying one of the repair issues was unreasonable. NCAT ultimately awarded a rent reduction in relation to this specific breach, compensation in the amount of $500, and made consent orders regarding repairs. In its assessment of the appropriate amount of compensation, NCAT noted that Ms Johnston had sought compensation for “stress, anxiety, disappointment and inconvenience”. In its order for compensation, NCAT considered non-economic loss for the inconvenience and disappointment caused by the landlord, but excluded any consideration of stress and anxiety on the basis that these were “personal injury components”. The provisions of the CLA preclude an award under the RTA for non-economic loss for personal injury unless a certain threshold is met.
On appeal, Ms Johnston submitted that NCAT misdirected itself as to the applicable law in finding her claim was one for personal injury damages. In response, the landlord argued that the damages claimed by Ms Johnston for stress and anxiety flow from a psychiatric injury, being a physical or mental condition, which falls within the definition of personal injury within the CLA, rather than being from any breach of contract. Ms Johnston also submitted that NCAT erred when it held that the landlord could only be put on notice regarding a need for repairs via the specific procedures set out by the landlord.
Held (allowing the appeal; remitting the proceedings for reconsideration by a differently constituted Tribunal): (i) NCAT erred in relation to its assessment of compensation. A claim under the RTA for compensation for loss of quiet enjoyment of a premises, and for inconvenience, does not constitute a claim for personal injury damages and does not fall within the definition of non-economic loss in the CLA (Makowska v St George Community Housing Ltd [2021] NSWSC 287 at [26]). Additionally, the High Court has held that disappointment and distress caused by a breach of contract for pleasure or relaxation is a compensable head of loss which is separate from damages for personal injury (Baltic Shipping Co v Dillon (1993) 176 CLR 344, see also Moore v Scenic Tours Pty Ltd (2020) 268 CLR 326; [2020] HCA 17). The Appeal Panel accepted that NCAT made an error on a question of law to the extent that it applied s 16(1) of the CLA to Ms Johnston’s claim for loss of enjoyment of her property (at [24]-[28]). |
(ii) NCAT’s view regarding adequate notice of the need for repairs was erroneous. There is nothing in the RTA or the tenancy agreement which prescribes a particular method for the notification of the need for repairs. NCAT misapplied the relevant law (at [32]-[33]). |
3. Can a prior licensee apply for a review of a decision made by the Authority under s 13A of the Gaming and Liquor Administration Act 2007 (NSW) (LGA Act)? Independent Liquor & Gaming Authority v Hurlstone Park Operations Pty Ltd [2024] NSWCATAP 232 Occupational Division R C Titterton OAM, Senior Member; D Goldstein, Senior Member
In sum: To obtain relief in an application for administrative review in NCAT made pursuant to s 13A of the LGA Act, an applicant must be “a relevant person” and “aggrieved”. Where an applicant is no longer the licensee by the time of a decision, that applicant will not be considered “a relevant person who is aggrieved by [the] decision” as is required under s 13A of the LGA because former and current licensees are not able to pursue competing reviews or appeals in relation to failed applications.
Facts: The Authority (the appellant) refused an application for an ETA for the Hurlstone Park Hotel. The first respondent had at all relevant times been the owner of the hotel. The appellant submitted at first instance and on appeal that the respondent had no standing to bring its application and that NCAT had no jurisdiction to grant the relief sought because the licensee of the hotel had changed on multiple occasions since the ETA application was originally lodged with the appellant, and the person who had made the original application (the second respondent) was no longer the licensee. This argument was rejected by NCAT at first instance. On appeal, the appellant submitted this finding was inconsistent with the decision in Taphouse Investments Pty Limited v Independent Liquor and Gaming Authority [2024] NSWSC 240 (Taphouse) which considered the same issue. The respondent submitted Taphouse is distinguishable because in that case the licensee was no longer licensee at the time NCAT made its decision, whereas in the present case, whilst the applicant was not the licensee at the time of the appellant’s decision, the applicant has once again become the licensee now that the matter is before the Appeal Panel.
Held (allowing the appeal; dismissing the proceedings): (i) Whilst the meaning and effect of s 13A of the LGA Act was not advanced by the appellant at first instance, this point can still be considered by an Appeal Panel because it is a matter pertaining to jurisdiction. Ordinarily, an Appeal Panel will apply the principle set out in Coulton v Holcombe (1986) 162 CLR 1 at [9]; [1986] HCA 33, that if a point is not taken below, the Appeal Panel will not allow it to be raised on appeal. However, this principle does not apply to the issue of jurisdiction; the question of jurisdiction can be raised at any time during the proceedings or even for the first time on appeal (at [40]-[50]). |
(ii) Whilst the facts here are distinguishable from those in Taphouse, the decision in Taphouse is authority for the proposition that former and current licensees are not able to pursue competing reviews or appeals in relation to failed applications, and were it otherwise, a successor licensee could make a competing new application for an ETA at the same hotel, or could challenge an application a former licensee was pursuing (at [70]). |
(iii) NCAT below erred in refusing the appellant’s application for summary dismissal at first instance. The appellant could never have granted the respondent an ETA in the first place, as he was no longer licensee, and therefore NCAT could not have done so on review (at [71]). |
|
|
Rahman v Zeaiter [2024] NSWCATAP 217 Consumer and Commercial Division - Residential Tenancy Decision of: E Bishop SC, Senior Member; S de Jersey, Senior Member Catchwords: LEASES AND TENANCIES — application for extension of time in which to appeal — application for leave to appeal — appeal from decision to set aside orders and for extension of time — leave to appeal from interlocutory decision |
|
Mitchell v Gong [2024] NSWCATAP 219 Consumer and Commercial Division Decision of: G Blake AM SC, Principal Member Catchwords: APPEALS – Ex parte application for stay – principles - hardship – short stay granted LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Recovery of possession of premises |
Orell v Clas Concrete & Constructions Pty Ltd [2024] NSWCATAP 220 Consumer and Commercial Division - Home Building Decision of: G Blake AM SC, Principal Member; E Bishop SC, Senior Member Catchwords: APPEALS — Appeal on question of law – Scope of question of law APPEALS — Constructive failure to exercise jurisdiction by not addressing a material issue or by overlooking material evidence APPEALS — Leave to appeal — Principles governing – leave to appeal granted APPEALS — Procedural fairness — Failure to give reasons — Adequacy of reasons BUILDING AND CONSTRUCTION – Residential building work – Statutory warranties under Home Building Act 1989 (NSW) – Claims by owner against builder |
YJB v YJC [2024] NSWCATAP 221 Guardianship Division Decision of: Seiden SC DCJ, Deputy President; A Britton, Deputy President; B McPhee, Senior Member (Professional) Catchwords: GUARDIANSHIP – obligation under s 4(d) of the Guardianship Act 1987 (NSW) to have regard to the views of person with disability – whether Tribunal failed to comply with that obligation PROCEDURAL FAIRNESS – whether Tribunal failed as required by 38(5)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) to ensure that the appellant had a reasonable opportunity to be heard PROCEDURAL FAIRNESS – bias – actual basis – whether Tribunal prejudged appellant’s suitability to act as guardian LEAVE TO APPEAL – principles – whether circumstances warrant exercise of discretion to grant leave to appeal |
The Owners – Strata Plan No. 100526 v Hamdan [2024] NSWCATAP 222 Consumer and Commercial Division - Strata Schemes Decision of: A Bell SC, Senior Member; G Ellis SC, Senior Member Catchwords: APPEALS – Error on a question of law – scope of discretion conferred by statute misconceived LAND LAW – Strata title – discretionary factors – impact on common property considered – discretion not confined to that impact CIVIL PROCEDURE – Inclusion of basis for claim in outline submissions insufficient – leave to amend should be sought prior to or at outset of hearing |
Demir v Liu [2024] NSWCATAP 223 Consumer and Commercial Division Decision of: D Robertson, Principal Member; M Deane, Senior Member Catchwords: LAND LAW — Strata title — By-laws - correct standard for assessing compliance with by-laws APPEALS-whether appeal lodged out of time |
|
Ngo v Sin & Partner Pty Ltd (No 2) [2024] NSWCATAP 225 Consumer and Commercial Division Decision of: S Westgarth, Deputy President; D Ziegler, Senior Member Catchwords: APPEAL - costs of appeal - appeal having no tenable basis - special circumstances warranting an award of indemnity costs. |
Soma Lasers Australia (Int) Pty Ltd v 97 Compression Pty Ltd trading as Estetiko Skin and Laser [2024] NSWCATAP 226 Consumer and Commercial Division - General Decision of: P Durack SC, Senior Member; G Ellis SC, Senior Member Catchwords: APPEALS - Procedure – leave to appeal and extension of time for commencing appeal required - appeal from interlocutory decision after final decision – appeal from refusal of summary dismissal application by respondent to claim on basis that a release of claims in a Deed of Settlement released the claim – inconvenience and litigation prolonged by not appealing the interlocutory decision until after trial and final judgment – proper construction of terms of release - no substantial prospects of success to appeal from interlocutory order – required extension of time and leave to appeal refused. CONSUMER LAW - Enforcement and remedies - construction of deed of settlement – whether s 64 of the Australian Consumer Law applied |
Johnston v NSW Land and Housing Corporation [2024] NSWCATAP 227 Consumer and Commercial Division Decision of: K Ransome, Principal Member; D Charles, Senior Member Catchwords: APPEAL – no requirement for particular form of notice by tenant of need for repairs – misapplication of law relating to compensation under the Residential Tenancies Act – appeal allowed |
Duplex Australia Pty Limited v Hathaway [2024] NSWCATAP 228 Consumer and Commercial Division - Home Building Decision of: P H Molony, Senior Member; D G Fairlie, Senior Member Catchwords: APPEALS – sections 18C, 18D and 18E(4) in the Home Building Act 1989 considered – the role of building experts in Tribunal proceedings |
Nguyen v Shakil [2024] NSWCATAP 229 Consumer and Commercial Division Decision of: Balla ADCJ, Principal Member; S de Jersey, Principal Member Catchwords: APPEAL – residential tenancy agreement – bond claims – decision against weight of evidence – decision not fair or equitable |
Wilcock v Intense Concrete Constructions Pty Ltd [2024] NSWCATAP 230 Consumer and Commercial Division Decision of: D Goldstein, Senior Member; D Fairlie, Senior Member Catchwords: APPEAL – Failure to provide a transcript or a typed copy of oral reasons – Leave to appeal on the basis that the decision was against the weight of evidence – Leave to appeal on the basis that significant new evidence has arisen that was not reasonably available at the time the proceedings were being dealt with |
Sydney Contracting Engineers Pty Ltd v; Gulawita [2024] NSWCATAP 231 Consumer and Commercial Division - Home Building Decision of: P H Molony, Senior Member; J Ledda, Senior Member Catchwords: BUILDING AND CONSTRUCTION — proceedings transferred under Home Building Act 1989 (NSW) to NSW Civil and Administrative Tribunal from Local Court APPEALS — whether appeal involves questions of law or other questions — whether decisions under appeal against weight of evidence or not just and equitable — impact of failure to lodge appeal materials as directed — use of reply to appeal to raise appeal ground |
|
Choi v The Owners Strata Plan No 53482 [2024] NSWCATAP 233 Consumer and Commercial Division Decision of: G Sarginson, Deputy President; E Bishop SC, Senior Member Catchwords: LAND LAW - strata title - common property rights by-law - unreasonable refusal - s 149(1)(b) Strata Schemes Management Act 2015 (NSW) |
Hawach v A & A Building Services Pty Ltd (No 2) [2024] NSWCATAP 234 Consumer and Commercial Division - Home Building Decision of: G Sarginson, Deputy President; D Robertson, Principal Member Catchwords: COSTS – rr 38 and 38A Civil and Administrative Tribunal Rules 2014 (NSW) – respondent the successful party in the appeal – costs follow the event |
Zeaiter v Rahman [2024] NSWCATAP 235 Consumer and Commercial Division - Residential Tenancy Decision of: D Robertson, Principal Member; A Boxall, Senior Member Catchwords: ADMINISTRATIVE LAW – NSW Civil and Administrative Tribunal – Procedural fairness – Hearing in absence of appellant – Appellant’s agent notified of hearing – Appellant claimed notice not passed on – Notice to agent was effective notice – No denial of procedural fairness |
Issacs v Michael [2024] NSWCATAP 236 Consumer and Commercial Division - Motor Vehicles Decision of: G Sarginson, Deputy President; D Fairlie, Senior Member Catchwords: APPEALS – question of law – constructive failure to exercise jurisdiction – s 18 Australian Consumer Law 2010 (NSW) - failure to identify correct legal principle – ss 60 and 61 Australian Consumer Law 2010 (NSW) - whether established – leave to appeal – whether grounds established CONSUMER LAW – dispute about whether mechanic duly licensed – dispute about quality of work – consumer guarantees under ss 60 and 61 of the Australian Consumer Law 2010 (NSW) – no error established |
Kelly v A and A Worm Farm Waste Systems Pty Ltd [2024] NSWCATAP 237 Consumer and Commercial Division - Home Building Decision of: D Ziegler, Senior Member; J Connelly, Senior Member Catchwords: APPEAL – application for extension of time in which to file the appeal – significant delay – no satisfactory explanation for the delay – whether Tribunal has power to make conditional order involving a third party – appeal lacking in merit – application for extension of time refused. |
Lavoise v Bertsch [2024] NSWCATAP 238 Consumer and Commercial Division Decision of: G Sarginson, Deputy President; PH Molony, Senior Member Catchwords: APPEALS – extension of time – discretion to extend time – no basis established to extend time LEASES AND TENANCIES – bond – repayment to tenant |
Jeray v Information and Privacy Commission [2024] NSWCATAP 239 Administrative and Equal Opportunity Division Decision of: Seiden SC DCJ, Deputy President; J Ledda, Senior Member Catchwords: GOVERNMENT INFORMATION — access to information about intervention decisions of Information Commissioner — excluded information and invalid access application under Government Information (Public Access) Act 2009 (NSW) ADMINISTRATIVE LAW — effect of s 42 of Government Information (Information Commissioner) Act 2009 (NSW) on administrative review jurisdiction of NSW Civil and Administrative Tribunal over decisions of Information and Privacy Commission PRACTICE AND PROCEDURE — correct respondent in administrative review proceedings |
Narraport Woollahra Holdings Pty Ltd v Ice Box Liquor Pty Ltd [2024] NSWCATAP 240 Administrative and Equal Opportunity Division Decision of: Seiden SC DCJ, Deputy President; D Ziegler, Senior Member Catchwords: LICENSING — packaged liquor licence — appeal by commercial competitors — statutory task under s 48(5) of the Liquor Act — approach to risk assessment — whether balance of probabilities erroneously used — whether Tribunal failed to reach requisite satisfaction — relevance of comparing proposed licence to grant of historical licence APPEALS — Meaning of “question of law” — whether the Tribunal asked itself the wrong question when approaching the question of risk — leave to appeal PRACTICE AND PROCEDURE — stay — utility of a stay |
Brown v Shubbian [2024] NSWCATAP 241 Consumer and Commercial Division Decision of: Seiden SC DCJ, Deputy President; S Westgarth, Deputy President Catchwords: APPEAL- application by tenant for rent reduction under s44(1)(b) of Residential Tenancies Act 2010-whether principles of mitigation operated to reduce the tenants claim-whether tenant had failed to mitigate by delay in bringing the application-procedural unfairness where mitigation was said to have been raised late-whether member demonstrated bias or whether there was the apprehension of bias |
Chaar v The Owners – Strata Plan 57161 [2024] NSWCATAP 242 Consumer and Commercial Division Decision of: D Robertson, Principal Member; G Ellis SC, Senior Member Catchwords: APPEAL – Error as to date not impacting decision – no basis for grating leave to appeal LAND LAW – Strata title – two-year limitation period – date from which that period commences – extension of time not permitted |
NSW Trustee and Guardian v FYV [2024] NSWCATAP 243 Administrative and Equal Opportunity Division Decision of: A Britton, Deputy President; A Suthers, Principal Member Catchwords: ADMINISTRATIVE LAW –– NSW Civil and Administrative Tribunal –– administrative review under Administrative Decisions Review Act 1997 (NSW) of decision made by NSW Trustee and Guardian –– principles governing decisions made under NSW Trustee and Guardian Act 2009 (NSW) APPEALS –– whether the Tribunal failed to have regard to a “substantial, clearly articulated argument” |
Champion Home Sales Pty Ltd v Voulgaris [2024] NSWCATAP 244 Consumer and Commercial Division Decision of: D G Charles, Senior Member; P H Molony, Senior Member Catchwords: HOME BUILDING - enforceability of a builder’s damages clause where the builder had terminated a contract for lack of finance by owner – no certificate of insurance issued to the owner - whether the builder’s claim is for the payment of damages under a contract for residential building work – application of s 92 and s 94 of the Home Building Act – whether work of a preparatory nature is residential building work. COSTS – Calderbank letter – exercise of discretion for indemnity costs. |
|
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. |
