NCAT Appeal Panel Decisions Digest Issue 12 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 December 2024: |
Barefoot Timber Pty Ltd v Wright [2024] NSWCATAP 252: An Appeal Panel allowed an appeal and remitted the proceedings to the Consumer and Commercial Division of NCAT, holding that there had been a denial of procedural fairness at first instance. The parties were not informed by NCAT that the matter would be determined under the Australian Consumer Law (or ACL) due to a jurisdictional issue stemming from the Home Building Act 1989 (NSW) (HBA), and the parties were not afforded the opportunity to consider their respective positions in relation to the ACL.
|
YKX v NSW Ageing and Disability Commissioner [2024] NSWCATAP 248: An Appeal Panel refused leave to appeal, dismissing an appeal from the Guardianship Division where the appellant submitted that she was denied procedural fairness because she had not been offered an adjournment. At first instance, the Tribunal’s reasons for decision included that there were serious concerns about the subject person’s health and well-being, the appellant had filed written submissions and had declined to participate in the hearing remotely. While NCAT was obliged to take reasonably practical measures to ensure that the appellant had the opportunity to be heard, that obligation did not require NCAT to ensure that the appellant had availed herself of the opportunity or to offer her an adjournment.
|
YJV v YJW [2024] NSWCATAP 255: An Appeal Panel found that there existed “special circumstances” which warranted the making of a costs order under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW)(NCAT Act) in circumstances where the Mother, the subject person in an appeal from the Guardianship Division, had died, rendering the appeal futile. The appeal was commenced by several of the Mother’s children (her daughters) and her son (their brother) was a respondent to the appeal proceedings. There was a deliberate failure of the brother to inform the daughters that the Mother had died. The daughters and their solicitor had travelled to Sydney from regional NSW, and they were first made aware of the Mother’s death at the commencement of the appeal hearing. The Appeal Panel was satisfied this constituted “special circumstances” to justify making an order against the brother for fixed indemnity costs.
|
Each case title is hyperlinked to the full decision available on NSW Caselaw. |
|
|
1. How should NCAT deal with applications when it finds a jurisdictional issue for determination was not raised by the parties? Barefoot Timber Pty Ltd v Wright [2024] NSWCATAP 252 Consumer and Commercial Division Balla ADCJ Principal Member; L Andelman, Senior Member
In sum: The Tribunal is obliged to afford procedural fairness to both parties in a proceeding and act according to equity, good conscience and substantial merits of the case without regard for technicalities pursuant to s 38(4) of the NCAT Act. A decision should not be based on grounds that the parties have not relied on, and in relation to which the parties have not had an opportunity to consider their respective positions. The failure to inform the parties that a decision was to be made pursuant to the ACL and not the HBA, constituted a denial of procedural fairness.
Facts: A dispute arose between the parties concerning the installation of wooden flooring. The respondent to this appeal filed a claim in NCAT pursuant to the HBA, however NCAT did not have jurisdiction to deal with the dispute pursuant to the excluded definition of ‘residential building work’ in the HBA. Nevertheless, NCAT had jurisdiction to deal with the case under the ACL. Nothing in the Tribunal's decision suggests that the parties were informed during the hearing that the Tribunal intended to determine the matter under the ACL and not the HBA.
At first instance the Tribunal found that Barefoot Timber had not carried out the work with due care and skill and had breached s 60 of the ACL. On appeal, a breach of procedural fairness was not raised as a ground of appeal by the parties, who were not legally represented.
Held (allowing the appeal, remitting the proceedings to the Tribunal for reconsideration): (i) Where an appellant is self-represented, the Appeal Panel will consider whether a question of law has been raised, subject to any procedural fairness issues that may arise for the respondent. It may be appropriate for the Appeal Panel to adopt “a more generous or benevolent approach” when assessing the grounds of appeal in such cases (Dokas v Gallagher (No 2) [2024] NSWCA 236 at [66]).
(ii) It was a denial of procedural fairness to base NCAT’s decision on statutory provisions in the ACL without providing the parties with an opportunity to respond. It was not necessary for the Appeal Panel to consider the remaining grounds of appeal. |
2. In what circumstances will it be procedurally fair to continue with a hearing in the absence of a respondent when the Tribunal does not offer an adjournment? YKX v NSW Ageing and Disability Commissioner [2024] NSWCATAP 248 Guardianship Division A Britton, Deputy President; J Kearney, Senior Member (Legal); F Given, General Member (Community)
In sum: NCAT has an obligation to ensure that parties have a reasonable opportunity to be heard and to facilitate the just, quick and cheap resolution of the real issues in the proceedings. In addition, this case required NCAT to observe the general principles outlined in s 4 of the Guardianship Act 1987 (NSW) to give paramount consideration to the welfare and interests of the subject person. The Appeal Panel found that there will be circumstances where the Tribunal’s failure to offer a party an adjournment may amount to a failure to afford procedural fairness, however this was not such a case.
Facts: In August 2021, the NSW Ageing and Disability Commission (ADC) received a report of concern about the care of the subject person (the Daughter). Following unsuccessful attempts to obtain information from the Daughter’s mother (the Mother), an investigation ensued, and the Mother received a letter identifying the issues in September 2022. The Mother did not allow the ADC to speak with the Daughter on three occasions and the Mother failed to respond to the ADC’s concerns. The ADC made an application to NCAT citing “reports of concern” and a hearing was scheduled in relation to the guardianship of the Daughter. The Mother was named as a party in the proceedings and her written submissions to the Tribunal in March 2024 was the first response she had provided to the concerns raised. The submissions also notified NCAT of her intention not to appear at the hearing due to a prior commitment. Nevertheless, the Tribunal called the Mother at the commencement of the hearing, and she again declined to participate. The Tribunal held serious concerns about the welfare of the Daughter and the hearing proceeded, with the Daughter’s brother and the NSW Public Guardian appointed as the Daughter’s guardians.
The Mother appealed from the decision to make a guardianship order on the grounds that, amongst other reasons, it was procedurally unfair for the hearing to have been conducted in her absence.
Held (refusing the appeal and dismissing the application): (i) While there will be circumstances where NCAT’s failure to offer a party an adjournment may amount to a failure to afford procedural fairness, this is not such a case.
(ii) The decision to proceed with the hearing was found to be procedurally fair for six reasons:
The Mother wrote to NCAT in a letter prior to the hearing that she would not be attending. There was nothing in this letter or her submissions which suggested that she would be likely to attend at some future date, nor did she make that claim when she was contacted by the Tribunal It was reasonable for NCAT to infer that the Mother had elected to participate in the hearing by way of her written submissions. This was not a matter where it could be suggested that the Mother misunderstood the nature or purpose of the hearing. The Mother had been involved in previous guardianship proceedings and her submissions demonstrated that she had understood the purpose of the hearing was to determine whether a guardianship order should be made. The Mother’s claim that she was unable to participate due to her prior commitment of caring responsibilities was not supported by the evidence and contradicted the Mother’s written submissions that the Daughter was largely independent and did not require “24/7” supervision. The Mother claimed that when she was contacted by NCAT at the commencement of the hearing, she was showering the Daughter. This contradicted the Mother’s written submissions that the Daughter could shower herself and, in any event, it was unclear why it was necessary to shower the Daughter during the hearing. The evidence did not support the submission that NCAT was obliged to offer the Mother an adjournment because the Mother lacked the wherewithal to request an adjournment.
(iii) NCAT did not have an obligation to offer an adjournment and there was no failure to afford procedural fairness in the circumstances. |
3. Does a failure to inform the parties of a subject person’s death constitute ‘special circumstances’ within the meaning of s 60 of the NCAT Act? YJV v YJW [2024] NSWCATAP 255 Consumer and Commercial Division A Britton, Deputy President, L Organ, Senior Member and C Kennedy, General Member
In sum: The death of the subject person rendered an appeal futile, and the fifth respondent, (the subject person’s son) had deliberately failed to inform the appellants of that death some 41 days earlier. The Tribunal was satisfied that there were ‘special circumstances’ warranting the award of costs pursuant to s 60 of the NCAT Act.
Facts: The subject person (the Mother) had previously appointed her two daughters (the appellants) as her enduring guardians and attorneys. Following the return of their brother (the Brother), the fifth respondent, from a decade overseas, the Mother revoked the appellants’ appointments and appointed the Brother to the role. The proceedings to challenge the Brother’s appointment were dismissed at first instance and the appellants lodged an appeal against the dismissal. 41 days prior to the hearing, the Mother passed away. On the eve of the appeal hearing, the Tribunal was informed of the death. The appellants were first informed of their Mother’s death at the commencement of the hearing. The Brother contended that he did not receive the death certificate until the day he informed the Tribunal of the Mother’s death and that the Mother instructed him not to notify the appellants of her death.
Held (ordering the Brother to pay the appellants’ indemnity costs): (i) The Appeal Panel was not persuaded by the Brother’s contentions and found that his conduct “unnecessarily disadvantaged the Appellants and caused them to incur unnecessary costs”. The decision to hide the death of the Mother from the appellants, her two Daughters, was “unusual and potentially distressing conduct in any circumstances, let alone during the course of litigation directly concerning their mother”. The conduct constituted special circumstances warranting an award of costs pursuant to s 60(3)(a) of the NCAT Act.
(ii) The Brother was ordered to pay costs on an indemnity basis for the total costs and disbursements incurred by the appellants following the Mother’s death. NCAT exercised its discretion to fix the costs payable pursuant to s 60(4)(b). |
|
|
McWilliam v Chee [2024] NSWCATAP 245 Consumer and Commercial Division Decision of: E Bishop SC, Senior Member; G Burton SC, Senior Member Catchwords: APPEALS — Procedural fairness — Evidence not allowed and considered by Tribunal at hearing — Tenants’ failure to file evidence by the dates directed by the Tribunal — Alleged retaliatory eviction — s 115 of the Residential Tenancies Act 2010 (NSW) — Whether Tribunal applied a wrong principle to the onus of proof by requiring expert evidence |
Northern Sydney Local Health District v FZK (No 2) [2024] NSWCATAP 246 Administrative and Equal Opportunity Division Decision of: G Blake AM SC, Principal Member Catchwords: APPEALS — bias — application for recusal — principles – application dismissed APPEALS — summary dismissal — application for summary dismissal - principles – application dismissed |
Van der Rijt v Collins [2024] NSWCATAP 247 Consumer and Commercial Division Decision of: S Westgarth, Deputy President; G Ellis SC, Senior Member Catchwords: APPEAL- common property rights by-law- consent required under sections 143 and 149 of the Strata Schemes Management Act 2015. |
YKX v NSW Ageing and Disability Commissioner [2024] NSWCATAP 248 Guardianship Division Decision of: A Britton, Deputy President; J Kearney, Senior Member (Legal); F Given, General Member (Community) Catchwords: PROCEDURAL FAIRNESS — hearing rule — Civil and Administrative Tribunal Act 2013 (NSW), s 38(5)(c) — whether Tribunal gave appellant reasonable period of notice of hearing to determine application for guardianship order — considerations relevant to assessment of whether period of notice of hearing was reasonable PROCEDURAL FAIRNESS — hearing rule — whether by not offering an adjournment and proceeding to determine application for guardianship order in her absence the Tribunal failed to afford the appellant procedural fairness APPEALS — principles governing exercise of discretion to grant leave to appeal under s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) — whether findings made by Tribunal were against the weight of evidence |
Nu-Stone Building Pty Ltd v McInerney; McInerney v Nu-Stone Building Pty Ltd (No 3) [2024] NSWCATAP 249 Consumer and Commercial Division - Home Building Decision of: S Westgarth, Deputy President; D Robertson, Principal Member Catchwords: COSTS – Follow the event - Separable issues – No issue arising in proceedings at first instance dominant or separable so as to warrant order other than that costs should follow the event COSTS – Appeal and cross-appeal – Both appeals succeed – Overall outcome of appeals is substantial reduction in judgment sum – Impossible to identify separate costs of the appeal and the cross-appeal – Appropriate to discount costs order in favour of party with overall success on the appeal to take account of success of other party on their own appeal |
Schofield v Connors [2024] NSWCATAP 250 Consumer and Commercial Division Decision of: S de Jersey, Principal Member; K Robinson, Principal Member Catchwords: APPEAL- dividing fence dispute – procedural fairness – sufficiency of fence |
|
|
Innovative Builders and Engineers Pty Ltd v Shah [2024] NSWCATAP 253 Consumer and Commercial Division Decision of: P Molony, Senior Member; D Fairlie, Senior Member Catchwords: APPEAL – error of law – adequacy of reasons – no legal basis disclosed for order making director of building company personally liable for breach of contract - failure to determine scope of work under residential building contract before determining damages – appeal allowed – remitted for rehearing. |
|
YJV v YJW [2024] NSWCATAP 255 Consumer and Commercial Division Decision of: A Britton, Deputy President; L Organ, Senior Member; C Kennedy, General Member Catchwords: COSTS –– whether there are “special circumstances” to warrant a cost order under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) – death of the subject person rendered appeal futile – respondent’s deliberate failure to inform appellants of the subject person’s death before the appeal hearing unnecessarily disadvantaged the appellants – respondent’s conduct constitutes special circumstances warranting an award of costs COSTS –– application for indemnity costs – principles governing exercise of discretion under s 60(4)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) to make an order for indemnify costs – respondent’s deliberate failure to inform appellants of the subject person’s death before appeal hearing constituted a “relevant delinquency” COSTS –– application for award of costs in a fixed sum – principles governing exercise of discretion to fix costs under s 60(4)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) |
Emmerson v Mission Australia - Mid North Coast [2024] NSWCATAP 256 Consumer and Commercial Division - Social Housing Decision of: P Durack SC, Senior Member; J Gatland, Senior Member Catchwords: LEASES AND TENANCIES – termination of social housing tenancy agreement for breach by the tenant APPEALS – application for extension of time to appeal not opposed APPEALS – question of law raised – adequacy of reasons APPEALS – circumstances warranting remittal for redetermination |
Jayne v Walker [2024] NSWCATAP 257 Consumer and Commercial Division Decision of: G Ellis SC, Senior Member; D Dinnen, Senior Member Catchwords: APPEAL – No error on a question of law established – extension of time not warranted LEASES AND TENACIES – Revision of date for possession – avoiding need for further proceedings – – guiding principle applied – exercise of discretion |
Shipman v Homes North Community Housing Limited [2024] NSWCATAP 258 Consumer and Commercial Division Decision of: E Bishop SC, Senior Member; G Burton SC, Senior Member Catchwords: APPEAL — failure to consider mandatory considerations in s 154E — did not apply correct principles in s 91 RESIDENTIAL TENANCY — termination of social housing agreement — unlawful use of premises under s 91 — requirement to be satisfied the use justifies termination under s 91 |
Abdallah v Paco Nominees Pty Ltd [2024] NSWCATAP 259 Consumer and Commercial Division - Home Building Decision of: R C Titterton OAM, Senior Member; P H Molony, Senior Member Catchwords: APPEALS – whether leave to appeal should be granted in respect of an interlocutory decision to dismiss an application to adjourn a final hearing should be granted |
GDO v NSW Trustee and Guardian [2024] NSWCATAP 260 Administrative and Equal Opportunity Division Decision of: G Blake AM SC, Principal Member; D Dinnen, Senior Member Catchwords: APPEAL – No question of law raised – No ground for leave to appeal – Lack of utility of appeal |
|
Tompkins v Fonseka [2024] NSWCATAP 262 Consumer and Commercial Division Decision of: S Westgarth, Deputy President; D Goldstein, Senior Member Catchwords: Appeal – Dividing Fences Act – no written record of reasons – contested view as to whether oral reasons were given. |
Watkins v Tasman Tourism Pty Limited [2024] NSWCATAP 263 Consumer and Commercial Division Decision of: P Durack SC, Senior Member; G Ellis SC, Senior Member Catchwords: LAND LAW – whether Holiday Parks (Long-term Casual Occupation) Act applies to occupancy of cabin structure on holiday park in New South Wales – whether cabin structure in whole or in part is a “moveable dwelling” as defined – whether the Tribunal has jurisdiction to determine the dispute. APPEALS – failure to ask the right question – error of law – determination of merits on appeal. |
Kontaineroo Pty Ltd v Slaveski [2024] NSWCATAP 264 Consumer and Commercial Division - Home Building Decision of: G Blake AM SC, Principal Member Catchwords: COSTS – costs application by the respondent – principles – withdrawal of appeal by the appellants - no hearing on the merits – costs application dismissed |
Dabous v Dannoun [2024] NSWCATAP 265 Consumer and Commercial Division Decision of: S Westgarth, Deputy President; D Goldstein, Senior Member Catchwords: APPEAL – Section 59 of the Civil and Administrative Tribunal Act 2013 – Powers of the Tribunal when proceedings settle – Failure to provide typed transcript or sound recording of hearing – Consequences in connection with ascertaining whether leave to appeal should be granted |
Plesko v Murphy [2024] NSWCATAP 266 Consumer and Commercial Division Decision of: S de Jersey, Principal Member; J McAteer, Senior Member Catchwords: LEASES AND TENANCIES –- damages to premises by water flow – landlords’ compensation claim – tenants’ rent reduction claim - failure to afford procedural fairness - decision not fair or equitable – decision against the weight of evidence – significant new evidence not reasonably available at time of hearing |
|
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. |
