| | | NCAT Appeal Panel Decisions Digest Issue 2 of 2020
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| | The NCAT Appeal Panel Decisions Digest provides monthly keyword summaries of decisions of the NSW Civil and Administrative Tribunal (NCAT) Internal Appeal Panel.
The following NCAT Appeal Panel decisions were handed down between 31 January and 31 March 2020. Each case title is hyperlinked to the full decision available on NSW Caselaw.
The latest issue features summaries of recent Appeal Panel decisions, including: - Malek Fahd Islamic School Limited v Non-Government Schools Not-For-Profit Advisory Committee [2020] NSWCATAP 19 - on the ambit of the Non-Government Schools Not-for-profit Advisory Committee's power to make recommendations to the Minister under s 83F of the Education Act 1990 (NSW).
- ZMQ v ZMR [2020] NSWCATAP 25 - on the Tribunal's "two-step" discretion as to whether to conduct a review of a power of attorney under s 36 of the Powers of Attorney Act 2003 (NSW) (PoA Act); and in what circumstances the Tribunal may be found to have failed to consider and determine a request to exercise its discretion under s 36(4) of the PoA Act, or alternatively, to have given inadequate reasons why it declined to exercise that discretion.
- Sleiman t/as Perfect Kitchens v Dempsey [2020] NSWCATAP 26 - where the Tribunal below failed to determine the agreed contract price in a home building contract, which was crucial to the calculation of any "damages" payable to the home owner for defective work.
- ZND v ZNE [2020] NSWCATAP 34 - on the nature of the Tribunal's "powers of inquiry" under the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) and PoA Act; whether the Tribunal is "obliged" to exercise those powers; when a decision may be "legally unreasonable" on the basis that it lacks "evident and intelligible justification"; whether the Tribunal is required to conduct a "full review" of relevant evidence before exercising its discretion under s 36 of the PoA Act; and when the Appeal Panel should deal with a matter by way of a "new hearing" under s 80(3) of the NCAT Act, so as to admit "new evidence" (not limited to "fresh evidence").
- Merrick v Zhu & Ye [2020] NSWCATAP 35 - on whether it is procedurally unfair for the Tribunal to proceed to hear a matter in a party's absence, as provided for by cl 35(2) of the Civil and Administrative Tribunal Rules 2014 (NSW), where that party only received notification of the hearing in respect of a monetary claim less than the amount ultimately awarded by the Tribunal.
- The Owners – Strata Plan No 80412 v Vickery (Costs) [2020] NSWCATAP 48; The Owners – Strata Plan No 74835 v Pullicin (Costs) [2020] NSWCATAP 49 - on the application of the principle of "public interest litigation" in NCAT, and whether the Appeal Panel should depart from the usual rule that "costs follow the event" where an appeal involves determination of a legal issue of public importance.
- France v Man Up Group Pty Ltd trading as Pitstop Auto and Marine [2020] NSWCATAP 50 - where the Tribunal below, in determining the compensation payable for breaches of the statutory warranty in s 60 of the Australian Consumer Law, failed to have regard to the considerations in s 247 of the Australian Consumer Law, including what losses suffered by the appellant were "reasonably foreseeable".
- Gavin v Redford & O’Shea [2020] NSWCATAP 54 - where the Tribunal below, in making an interlocutory decision to remove a party from tenancy proceedings, failed to ask itself the correct legal question re termination of a co-tenancy, as provided in ss 101 and 102 of the Residential Tenancies Act 2010 (NSW).
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| Administrative and Equal Opportunity Division
Hennessy ADCJ, Deputy President; S Westgarth, Deputy President
In sum: The Appeal Panel allowed an appeal from the Administrative and Equal Opportunity Division on the basis that the Non-Government Schools Not-for-profit Advisory Committee (the Advisory Committee) lacked power under s 83F of the Education Act 1990 (NSW) (the Education Act) to recommend that the Minister recoup debts owed by non-government school by reducing future financial assistance.
Facts: The Minister for Education may provide financial assistance in respect of non-government schools but must not provide financial assistance to a school that operates “for profit”: Education Act, ss 83B(1) and 83C(1) ([1]).
Malek Fahd Islamic School Limited (the School) is a non-government school in Sydney ([1]).
In 2017, the Advisory Committee found that the School was operating “for profit” in 2014 and 2015. The Advisory Committee recommended to the Minister ([1]-[2]):
- that the Minister make “noncompliance declarations” under s 83F of the Education Act;
- that the School’s financial assistance be suspended until it provides evidence of various matters; and
- that the School repay financial assistance provided to it in 2014 and 2015;
- that repayment be made “by reducing the amount that would otherwise be payable to the School by 50% until the amount is fully recovered” (the first repayment recommendation), or, if the suspension is not removed by 1 March 2020, that repayment be made in full before financial assistance was resumed (the second repayment recommendation).
The School applied to NCAT for a review of the recommendations under s 107 of the Education Act, and the Tribunal confirmed each of the recommendations ([3]).
The School appealed the Tribunal’s decision in respect of the repayment recommendations only ([3]). The School adopted a ground of appeal raised by the Appeal Panel at the hearing, being that the Advisory Committee did not have power to make the repayment recommendations ([4]).
Held (allowing the appeal, setting aside the first instance decision, and making an amended recommendation made to the Minister):
(i) The Advisory Committee did not have power to make the repayment recommendations and, consequently, those recommendations should not have been made ([4]).
(ii) Section 83J(1) of the Education Act gives the Minister, and only the Minister, express power to recover financial assistance given when a school was operating for profit or was non-compliant. One way those amounts may be recovered, as provided by s 83J(3)(b), is by reducing future amounts of financial assistance payable by the Minister ([4], [31]).
(iii) Under s 83F(3), if the Advisory Committee recommends that the Minister make a non-compliance declaration, it may also include a recommendation “on any consequent suspension or reduction of, or imposition of conditions on, the provision of financial assistance” ([4], [32]).
(iv) Contrary to the Advisory Committee’s submission, the powers in s 83F(3) do not overlap with the powers in s 83J(1). They are discrete powers. Section 83F(3) allows the Advisory Committee to recommend that financial assistance be reduced, but not for the purpose of recovering amounts provided when the school was operating for profit or was a non-compliant school. That power is given exclusively to the Minister ([4], [29], [32], [34]).
(v) This interpretation arises from the ordinary meanings of ss 83F and 83J, and is supported by what was said in the Minister’s Second Reading Speech for the Education Amendment (Not-for Profit Non-government School Funding) Bill 2014 (see [20], [33]-[34]).
(vi) Accordingly, the first repayment recommendation, that the Minister reduce the School’s funding until its debt was repaid in full, was beyond the Advisory Committee’s recommendation-making power conferred by s 83F(3).
(vii) The second repayment recommendation that, unless evidence of various things was provided in time, the School would be required to re-pay the full amount of financial assistance was “not the imposition of a condition on the provision of financial assistance”, but rather, “the recovery of an amount of financial assistance that has been paid during a period of ineligibility”. This recommendation was also outside the power in s 83F(3) ([35]).
(viii) The Appeal Panel allowed the appeal and substituted its own decision, amending the Advisory Committee’s recommendation to the Minister to omit the recommendations relating to repayment. The recommendation that financial assistance be suspended until certain information is provided to the Minister was left in place ([36]).
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| Guardianship Division
A Britton, Principal Member; L Dive, Senior Member; S Johnston, General Member
In sum: The Appeal Panel dismissed an appeal from the Guardianship Division on the basis that, although the Tribunal did not expressly address the appellant’s request for it to exercise its discretion under s 36(4) of the Powers of Attorney Act 2003 (NSW) (PoA Act), it nonetheless considered that request, and gave adequate reasons for declining to exercise the discretion in the appellant’s favour.
Facts: ZMS (the subject person) is an 89 year-old man with a diagnosis of dementia currently living in residential aged care ([1]).
In early 2017, ZMS executed an Enduring Power of Attorney (EPoA) appointing his cousin, ZMR, as his attorney (the attorney). He also executed a separate instrument appointing ZMR as his enduring guardian ([1]).
In late 2018, the attorney decided to sell part of the subject’s person’s rural property (referred to as the Quarry) to its lessee ([2]). The subject person’s son (the appellant in these proceedings) objected to that decision, and applied to the Guardianship Division of NCAT seeking review of the EPoA. Amongst other things, the appellant sought an order that the attorney produce records and accounts relating to the exercise of his powers under the EPoA. The Tribunal dismissed the application, and the appellant appealed ([2]-[4]).
The appellant did not challenge the decision not to remove the attorney from office, but submitted that the Tribunal failed to determine the request for the production of records and accounts ([5], [10]).
Held (dismissing the appeal):
Whether the Tribunal failed to consider the appellant’s request for orders under s 36(4)(e) of the PoA Act
(i) The appellant’s primary contention was that the Tribunal failed to consider and determine his request that it exercise its power under s 36(4)(e) of the PoA Act to order the attorney to give to the appellant all accounts and records relating to the exercise of his power under the EPoA ([20]).
(ii) The Tribunal referred to the appellant’s request in its reasons, but did not explicitly address it ([21], [23]).
(iii) As explained by Slattery J in Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516 at [42], ss 36(1) and 36(2) of the PoA Act give the review tribunal a two-step discretion ([25], [26]):
a. First, the review tribunal may exercise a discretion to "decide to review" the operation and effect of a reviewable power of attorney or "not to carry out such a review": s 36(1).
b. Second, if the review tribunal decides to exercise that discretion, it may exercise a further discretion, "whether or not to make an order” under [s 36]”: s 36(2).
(iv) The PoA Act does not expressly state the considerations relevant to the exercise of the discretions conferred by ss 36(1) and (2). However, where the review sought relates to the operation and effect of a reviewable power of attorney, the preamble of s 36(4) requires the review tribunal to be “satisfied that it would be in the best interests of the principal” or would “better reflect the wishes of the principal” to make any of the orders in that subsection: Susan Elizabeth Parker at [110] ([26]).
(v) Where an applicant requests a review tribunal not only to exercise the discretion to make orders under s 36, but to make a particular form of order, a failure to consider and determine that request may amount to a failure to address the substance of the applicant’s case and a constructive failure to exercise the function conferred by the PoA Act: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 at [24], [25]; Ali v AAI Limited [2016] NSWCA 110 at [66] ([27]).
(vi) However, in this case, the Appeal Panel rejected the contention that the Tribunal failed to consider and determine the request for production of financial documents ([29]).
- While not put in these terms, it was apparent from the reasons read as a whole that the Tribunal was not satisfied that either of the pre-conditions to the exercise of the discretion to make orders under s 36(4) were met. Given this, it was not open to the Tribunal to proceed to make orders under that s 36(4), including orders requiring the attorney to produce financial documents ([30]).
- At [64] of the decision, the Tribunal concluded that “any outcome that would result in a review of all of [the subject person’s] decisions and transactions and result in action in the Supreme Court” would “not only create further conflict and distress for [the subject person] but would result in significant costs to [the subject person], without any potential benefit to him during his lifetime”. Read in context, this statement was plainly a reference to the appellant’s request for orders under s 36(4)(e), not his primary application for the removal of the attorney ([32]).
(vii) Accordingly, the first ground of appeal was dismissed ([33]).
Whether the Tribunal failed to give adequate reasons for declining to exercise its power under s 36(4)(e) of the PoA Act
(viii) As this was a decision of the Guardianship Division, the Tribunal was required to give the parties a written statement of reasons for its decision, and in that statement, to set out the matters referred to in s 62(3) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act): cl 11 of Sch 6 to the NCAT Act ([38]).
(ix) The Appeal Panel referred to New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231, in which Bell P distilled at [66]-[70] and [77] key principles as to what constitutes adequate reasons in the NCAT context ([39]-[40]).
(x) The authorities outlined in that case emphasise that, in undertaking the task of evaluating whether reasons for a decision are adequate, an appellate body must refrain from reading passages from the reasons for decision in isolation from others. Reasons must be read fairly and as a whole, and should not be read with an “eye keenly attuned to error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272. At the same time, the eyes of the appellate body should not be “so blinkered as to avoid discerning an absence of reasons”: Soliman v University of Technology, Sydney [2012] FCAFC 146 at [57] ([43]).
(xi) Contrary to the appellant’s submission, read fairly and in its context, paragraph [71] of the Tribunal’s decision did not represent the “sum total” of its reasons for dismissing the application, and specifically, not exercising the power to require the production of financial documents ([44]).
(xii) Although the focus of the Tribunal’s reasons was the question of whether to revoke the attorney’s appointment, read as a whole, the reasons revealed that the Tribunal went on to consider and determine whether to require the production of financial documents. While the reasons were brief, they exposed the process which led the Tribunal to decide not to exercise that power ([44]).
Whether the Tribunal had regard to an irrelevant consideration
(xiii) The appellant also submitted that the Tribunal had regard to an “irrelevant consideration”, namely, his motivation for making the initiating application (his alleged interest in preserving his and his brother’s inheritance) and the reason for seeking the production of financial documents (for alleged use in proceedings in the NSW Supreme Court) ([47]).
(xiv) The terms of s 36 did not expressly or implicitly prohibit the Tribunal from taking into account either of these considerations ([48]).
(xv) With respect to the Appellant’s motivation for making the initiating application, the Tribunal’s reasons revealed that while the Tribunal considered that the appellant was partly motivated by self-interest, it did not consider this his sole motivation, and did not dismiss his concerns on this account ([49]).
(xvi) The Appeal Panel also rejected the submission that it was impermissible for the Tribunal to have regard to Supreme Court proceedings because they were a “mere possibility”. The exercise of the power to make or not to make orders under s 36(4) required the Tribunal to consider the best interests of the subject person, including the subject person’s current and future interests. In assessing the latter, the Tribunal could not be restricted to having regard only to future events that were “reasonably certain” ([50]).
Whether there was no evidence to support a finding of fact made by the Tribunal
(xvii) The appellant also submitted that there was “no evidence” or “insufficient reliable evidence” to support the attorney’s explanation for selling the Quarry, accepted by the Tribunal, being to meet the subject person’s debts ([52], [55]).
(xviii) In making this submission, the appellant seemed to suggest that the attorney needed to demonstrate, and the Tribunal was required to be satisfied, that the sale of the Quarry was the only viable option open to the attorney to discharge the subject person’s debts ([57]).
(xix) However, in fulfilling his fiduciary obligations, the attorney was not obliged to preserve the subject person’s assets at all costs but rather to manage the estate in a competent and diligent manner having regard to the subject person’s current and future needs for income. Similarly, the role of the Tribunal was not to decide for itself whether the sale of the property was the only or preferable decision. Rather, it was to evaluate whether the sale of the Quarry evidenced that the attorney was not acting consistently with his duties to the subject person and/or was not likely to do so in the future ([57]).
(xx) It could not be said that there was no evidence before the Tribunal about the factual assumptions underpinning the attorney’s explanation for his decision to sell the Quarry. That there may have been better evidence available to support those claims did not prevent the Tribunal from having regard to the material before it ([58]).
(xxi) This ground was in substance a challenge to the weight the Tribunal gave to the available material, which does not give rise to an error of law ([60]).
Whether the Tribunal placed “inordinate weight” on a consideration
(xxii) Finally, the appellant contended that, while the subject person’s expression of support for the attorney’s actions was not irrelevant, the Tribunal placed “inordinate weight” on this consideration given the subject person’s “deteriorated mental condition” ([61]).
(xxiii) The “real complaint” here appeared to be that the Tribunal gave greater weight to the subject person’s support for the attorney’s actions than to his expressed wish to retain the whole of his property ([66]).
(xxiv) However, this was not an error of law. The Tribunal was clearly “alive to the fact” that the sale of the Quarry was not the subject person’s preferred option. The views of the subject person were one of several considerations the Tribunal had regard to in deciding whether to exercise its power to make orders under s 36(4) ([67]-[68]).
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| Consumer and Commercial Division - Home Building
S Westgarth, Deputy President; D Robertson, Senior Member
In sum: The Appeal Panel allowed an appeal from a decision of the Consumer and Commercial Division under the Home Building Act 1989 (NSW) (the HB Act), on the basis that the Tribunal failed to determine the contract price agreed by the parties, an issue integral to calculating the compensation for defects owed to the owner.
Facts: The appellant builders and respondent owner were parties to a contract for installation of a kitchen in the owner’s home ([1]).
After completion, the owner alleged there were defects in the work. The builders claimed to have carried out the works according to the agreed plans, and said that any additional work would constitute a variation requiring further payment ([7]).
There was also a disagreement between the parties as to the initial contract price – the builders claiming it was approximately 32 thousand dollars, and the owner claiming it was only 25 or 28 thousand dollars ([3]-[4]).
The builders applied to NCAT seeking payment of the balance owing under the contract, or alternatively, a quantum meruit for the work done and materials used ([8]).
In defence of the builders’ claim, the owner relied on a number of breaches by the builders of the HB Act, including that the contract was not in writing and the builders failed to obtain a contract of home owners warranty insurance ([9]).
The owner filed a cross-application seeking compensation for breach of contract and an order that the builders carry out additional work ([10]-[12]).
The Tribunal found that the builders’ work was defective (implicitly in breach of the statutory warranties in s 18B of the HB Act), and that they were liable to the owner for $19,500 in compensation for breach of contract (including for lost rent and costs incurred to rectify the defects) ([20]).
The Tribunal found that the builders’ work was “largely done in conformity with the oral agreement” (except for the defects) but that, by operation of s 94(1) of the HB Act, the builders were not entitled to recover under that agreement ([21]).
The Tribunal held that the builders could recover compensation under s 94(1A) in respect of expenses which they established they had incurred through the tender of invoices. However, they were not entitled to payment of a quantum meruit in respect of labour costs, as they had not established the fair and reasonable value of the labour provided by the builders ([22]).
Accordingly, the builders were entitled to an amount of $12,059, less the deposit of $7,500 already paid by the owner ([23]-[24]).
This amount of $4,559 was then deducted from the $19,500 in compensation owed to the owner, such that the builders were required to pay a total of $14,941 to the owner.
After receiving submissions on the issue of costs, the Tribunal also ordered that the builders pay the owner’s costs of the proceedings ([25]).
The builders appealed on questions of law and fact, seeking leave to appeal on the basis that the decision was against the weight of the evidence and was not fair and equitable ([30]-[32]).
Held (allowing the appeal, setting aside and substituting the first instance orders):
(i) The grounds of appeal relating to alleged breaches of procedural fairness could not succeed ([64]).
(ii) The ground of appeal in which the builders alleged that there was “no evidence” to support certain findings were, in actuality, allegations that the evidence should not have been admitted or should have been given less weight. Such allegations do not give rise to questions of law, particularly as the Tribunal is not bound by rules of evidence ([65]-[72]).
(iii) The Appeal Panel refused leave to appeal other than on a question of law, as it was not persuaded that the builders may have suffered a substantial miscarriage of justice, and the Tribunal did not err in accepting and giving weight to the expert opinions relied on by the respondent. This was notwithstanding that the respondent’s expert had not read or agreed to be bound by the Expert Code of Conduct (contained in Procedural Direction 3). That Direction specifically provides that “[a] failure to comply with the code of conduct does not render any expert report or evidence inadmissible but it may, depending on the circumstances, adversely affect the weight to be attributed to that report or evidence ([34], [73]-[77]).
(iv) Despite the failure of the appellant’s grounds of appeal, the Appeal Panel allowed the appeal on the basis of a further issue which it identified at the appeal hearing. This was that, although the owner sought compensation for breach of contract, the assessment of which must take account of the extent to which the owner has paid the full contract price, the Tribunal did not determine what that contract price was ([78]-[80]).
(v) There were two ways in which the appropriate outcome could be calculated in the circumstances, however both would lead to the same result. More importantly, the agreed contract price would be integral to both methods ([80]-[83]).
(vi) The owner did not adduce enough evidence to enable a finding that the contract price was less than $27,000 (the amount of loss she suffered through paying the deposit, paying the cost of rectification, and losing rent). Instead, the weight of the evidence pointed to the contract price being greater than $27,000. Accordingly, the unpaid balance of the contract price exceeded the damages sustained by the owner. On that basis, the owner did not establish any loss arising from the builders’ breach of contract ([82]-[83]).
(vii) However, this did not mean that the builders were entitled to payment of the difference between the loss suffered by the owner and the amount still owing under the contract, as the builders were not entitled to enforce the contract ([84]).
(viii) Their only entitlement to payment was on the basis of a quantum meruit pursuant to s 94(1A) of the HB Act. However, the builders could not recover any amount by way of quantum meruit as, on the findings of the Tribunal, the reasonable value of the work performed amounted to less than the builders had already been paid ([84]).
(ix) Accordingly, the appeal was allowed, and the orders made at first instance, including the costs order, were set aside. In their place, the Appeal Panel dismissed both the owner’s and builders’ applications, with no order as to costs ([85], [93], [95]).
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| Guardianship Division
M Schyvens, Deputy President; A Britton, Principal Member; M Wroth, Senior Member
In sum: The Appeal Panel dismissed an appeal from a decision in the Guardianship Division not to conduct a review of the operation and effect of an enduring power of attorney. In doing so, the Appeal Panel made a number of observations regarding whether the Tribunal’s powers of inquiry under the NCAT Act are “obligatory or permissive”, when a decision may be “legally unreasonable” because it lacks an “evident and intelligible justification”, and when the Appeal Panel should exercise its power to deal with an appeal by way of a “new hearing”.
Facts: ZNE (the subject person) is a 91-year-old woman with a diagnosis of dementia ([1]).
In October 2009, the subject person executed an enduring power of attorney (EPoA), appointing one of her two daughters, ZNG (the attorney), and that daughter’s husband, as her attorneys with power to act jointly and severally (the attorneys). Shortly before making that appointment, the subject person revoked a general power of attorney made in 2006 in which she appointed both her daughters to act as her attorneys ([1]).
The appellant in these proceedings is the subject person’s daughter who was appointed attorney under the 2006 general power of attorney but not the 2009 EPoA ([2]).
In 2019, the appellant applied to NCAT seeking review of the operation and effect of the EPoA. The Tribunal dismissed the application, concluding it was not in the best interests of the subject person, nor would it better reflect her views, to either conduct a review of the EPoA or make orders under s 36 of the PoA Act. The appellant appealed ([2]-[3], [14]).
Held (refusing leave to appeal and dismissing the appeal):
Whether the Tribunal was obliged to exercise its “investigative powers” in deciding whether to review the operation and effect of the EPoA
(i) The appellant contended that, before exercising its discretion to not conduct a review of the operation and effect of the EPoA, the Tribunal was obliged to use its “investigative powers” to investigate the concerns she raised about the attorney misusing her powers. In particular, she contended that the Tribunal was obliged to direct the attorney to produce various financial records relating to the subject person’s estate ([21]).
(ii) Under the NCAT Act, the Tribunal ([28]-[29]):
- “may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice”: s 38(2).
- “is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue”: s 38(6)(a).
- has various powers in relation to calling and examining witnesses, including the power to issue a summons to require a person’s attendance at a hearing to give evidence or produce documents: ss 46, 48.
(iii) Under the PoA Act, the Tribunal also has a wide range of inquiry-type powers, including the power to make orders that an attorney furnish the Tribunal or another person with records and accounts. These powers can only be exercised if the Tribunal first exercises its discretion to review the operation and effect of an EPoA (s 36(1)), and to make orders under s 36 (s 36(2)), and is satisfied that the proposed order is “in the best interests of the principal” or would “better reflect the interests of the principal” (s 36(4)) ([26]-[27], [30], also see summary of ZMQ v ZMR [2020] NSWCATAP 25 above).
(iv) Before exercising its discretion under the PoA Act, it was open to the Tribunal to exercise its inquiry powers under the NCAT Act, including by requesting production of documents by the attorney or issuing a summons. The question was whether NCAT was obliged to exercise those powers, specifically in the way the appellant requested. This required consideration of whether NCAT’s powers of inquiry are “obligatory or permissive” ([31]-[32]).
(v) While the power conferred by s 38(2) of the NCAT Act is clearly permissive, the provision in s 38(6)(a) is less clear-cut. However, the Appeal Panel adopted the “persuasive” analysis in Raissis v Anaz [2019] NSWCATAP 25 at [23]-[26] that s 38(6)(a) “should not be construed literally but rather construed as giving the Tribunal a power which is permissive in nature” ([32]-[33]).
(vi) Applying this analysis, it could not be said that s 38(6)(a) of the NCAT Act required the Tribunal to request or direct the attorney to produce the broad set of documents sought by the appellant ([33]-[34]).
(vii) The Appeal Panel also noted that the Tribunal below had exercised its power to inquire (e.g. by questioning the attorney), albeit not to the extent the appellant thought necessary ([35]).
Whether the Tribunal’s decision not to exercise the discretion conferred by s 36(1) of the PoA Act was “legally unreasonable”
(viii) While not put in these terms, the appellant also contended that the Tribunal’s decision was “legally unreasonable” in the sense used by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (Li), that is, that it lacked “an evident and intelligible justification” ([37]).
(ix) In particular, the appellant submitted it was unreasonable for the Tribunal to decide not to exercise its power to conduct a review of the operation and effect of the EPoA in circumstances where the Tribunal did not have the benefit of all of the underlying documents relating to the management of the subject person’s financial affairs after the commencement of the EPoA ([38]).
(i) As noted above, relevant considerations in the exercise of the discretion to conduct a review of the operation and effect of a power of attorney include whether it would be in the best interests of the principal or better reflect their wishes: Susan Elizabeth Parker at [110] per Slattery J ([39]).
(ii) There was ample evidence to support the Tribunal’s finding about the subject person’s wishes, i.e. that she was opposed to details of her financial affairs being disclosed to the appellant ([40]).
(iii) However, this did not answer whether it would be in the subject person’s best interests to conduct a review of the operation and effect of the EPoA ([41]).
(iv) The fact that the Tribunal did not have before it all the relevant documents relating to the management of the subject person’s finances raised a question of whether the Tribunal had an evident and intelligible justification for declining to review the EPoA ([42]).
(v) In Susan Elizabeth Parker at [80], Slattery J found that “[s]omething short of a full review” of all the documents associated with the operation of a power of attorney “must be able to justify” a review tribunal’s decision as to whether or not to conduct a “full s 36 review”. This does not mean that a “full review” of relevant materials is never warranted before deciding whether to review an EPoA. The review tribunal must make this assessment on a case-by-case basis ([43]).
(vi) Given the other evidence before the Tribunal (including the credible evidence of the attorney), the Tribunal’s decision not to conduct a “full s 36 review” of the operation and effect of the EPoA was reasonably open to it, and did not lack an evident and intelligible justification ([44]-[45]).
Whether the Tribunal failed to have regard to relevant and significant evidence
(vii) The appellant submitted that the Tribunal failed to have regard to two pieces of evidence which were critical to the exercise of its discretion – bank passbooks handed up during the hearing, and a DVD filed the day before containing a recorded conversation between the appellant and the subject person ([47]).
(viii) It is an error of law for a decision maker to ignore or overlook apparently credible and relevant information which might support an essential step in the reasoning process if the claim were upheld. The fundamental question is the importance of the ignored or overlooked material to the exercise of the Tribunal’s function and thus the seriousness of any error: Torbey Investments Corporated Pty Ltd v Ferrara [2017] NSWCA 9 at [65] ([50]).
(ix) While the Tribunal did not refer to the passbooks in its reasons, the Appeal Panel rejected the claim that the Tribunal ignored or overlooked that evidence, as the Tribunal had questioned the appellant about them at the hearing ([49]).
(x) The appellant failed to identify the credible and relevant information in the passbooks that the Tribunal failed to consider. It was therefore not possible to determine whether that information was ignored or overlooked ([51]).
(xi) Based on the appellant’s description of the DVD recording, the Appeal Panel also found that it would have been of limited probative value and, in circumstances where it was unclear whether it had been served on the other parties, it was open to the Tribunal to reject its tender ([55]).
Whether the appeal should be dealt with by way of a “new hearing” under s 80(3) of the NCAT Act
(xii) The appellant pointed to “fresh evidence”, including bank documents and a photograph of the entrance to the subject person’s house, which she contended warranted a “new hearing” under s 80(3) of the NCAT Act ([61]).
(xiii) Generally, fresh evidence must satisfy three conditions: it could not have been obtained with reasonable diligence in the original proceedings; there is a high degree of probability that if admitted there would have been a different result in those proceedings; and the evidence must be credible: Akins v National Australia Bank (1994) 34 NSWLR 155 (Akins) at 160; Agripower Barraba Pty Ltd v Blomfield (2015) 317 ALR 202; [2015] NSWCA 30 at [68] ([61]).
(xiv) In this case, neither the bank documents nor the photograph satisfied these conditions. However, the power to receive new evidence under s 80(3)(b) of the NCAT Act is not limited to fresh evidence ([63]).
(xv) Nonetheless, the Appeal Panel held that neither the bank documents nor the photograph “warrant[ed] the exercise of the discretion to deal with an internal appeal by way of a new hearing” ([69], [73]).
(xvi) The bank documents did not support the appellant’s claim that the attorney was “skimming” money from the subject person’s savings account, nor did the photograph support the contention that insufficient money was being spent to maintain the subject person’s house. It was improbable that admitting this evidence would have led the Tribunal to a different result ([69], [72]).
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| Consumer and Commercial Division - Home Building P Durack SC, Senior Member; D Goldstein, Senior Member
In sum: The Appeal Panel allowed an appeal from the Consumer and Commercial Division on the basis that, although the appellant received notice of the first instance hearing by mail, that notice only pertained to a lesser claim than the amount awarded to the respondents at the hearing.
Facts: The appellant carried out a range of home building works for the respondents for a total price of $10,000. Disagreements between the parties led the respondents to apply to NCAT seeking a full refund. Those proceedings resulted in consent orders, in which the appellant agreed to carry out rectification works, and it was specified that the respondents could renew the proceedings if those works were not carried out ([3]-[4]).
A dispute followed about the extent of the rectifications the appellant had actually carried out in compliance with the consent orders. The respondents commenced renewal proceedings claiming $4,268 for rectification of a leak ([6], [9]).
Although the Tribunal sent a notice of hearing to the appellant’s residential address, the appellant said he never received that notice. As a result, the appellant did not attend the hearing and the Tribunal proceeded to hear the matter in his absence in accordance with cl 35(2) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) ([10]-[11]).
On its own initiative, the Tribunal granted the respondents an award of $10,000.00, much larger than the $4,268 they sought. After the hearing, the appellant received a text message from the respondents notifying him of this order ([7], [13], [18]).
The appellant applied to the Tribunal to set aside the decision under cl 9 of the Civil and Administrative Tribunal Regulation 2013 (NSW). The Tribunal considered the matter on the papers and declined the application, apparently on the basis that the appellant did not complete the section of the form which asked what case he would have put to the Tribunal if he had not been absent ([18]-[20]).
Held (allowing the appeal, setting aside the orders made at first instance, and remitting the matter to a differently constituted Tribunal):
(i) The Tribunal was entitled to proceed with the hearing on the basis that the notice of hearing had been sent to the appellant’s residential address, notwithstanding that the appellant claimed not to have received that notice ([11]).
(ii) However, it was procedurally unfair for the Tribunal to hear and determine the matter in the appellant’s absence when he was only notified of the renewal claim in respect of the lesser amount based on the cost of rectifying the leak, and not of the larger claim ultimately awarded at the hearing ([14]-[15]).
(iii) It accepted that the appellant’s failure to complete part of the set aside application was a mistake, rather than an indication of the absence of any real case against the order that was made ([19]-[22]).
(iv) In the circumstances, the Appeal Panel was satisfied that the appellant had not had an opportunity to present his side of the case at a hearing in which he was able to present evidence and argument and to question the respondents’ witnesses ([32]).
(v) Having regard to s 38(5) of the NCAT Act, which requires that the Tribunal take reasonably practicable measures to ensure that parties have a reasonable opportunity to be heard or have their submissions considered, the Appeal Panel decided that the appeal should be allowed ([27], [29]).
(vi) The Appeal Panel also granted the appellant an extension of time for filing his Notice of Appeal based on the merits of the appeal, the delay occasioned by the unsuccessful application to set aside, and the shortness of the delay after the decision on that application before lodging an appeal (four days) ([38]).
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| Consumer and Commercial Division - Strata
Armstrong J, President; Hennessy ADCJ, Deputy President; T Simon, Principal Member
In sum: The Appeal Panel declined to depart from the usual rule that “costs follow the event” – that is, absent disentitling conduct, the successful party in an appeal should generally be awarded costs. In doing so, it considered the application of the concept of “public interest” litigation to NCAT proceedings where issues of “public importance” are central to the determination of an appeal.
Facts: The Appeal Panel previously published a joint decision (available here) allowing two appeals, heard concurrently, which dealt with the question of whether the Tribunal has jurisdiction to award damages under s 106(5) of the Strata Schemes Management Act 2015 (NSW), by virtue of the order-making power in s 232(1)(e) of that Act. A summary of the substantive appeals was contained in the last Appeal Panel Bulletin.
In the decisions below, the Tribunal in Vickery made a costs order against the appellant, while the Tribunal in Pullicin made no order as to costs.
The Appeal Panel allowed both appeals. It expressed preliminary views as to costs in each appeal, but invited the parties to file written submissions on the matter, advising that the final costs orders would be determined on the papers.
The costs decisions in each appeal were published separately, but are summarised together here, as they discuss the same principles relating to costs in “public interest litigation” proceedings.
Held (ordering the respondents in each case to pay the appellants’ costs of the appeal):
Costs of the Appeal Panel proceedings
(i) The general rule in relation to costs in the Tribunal is that each party pays their own costs unless there are special circumstances warranting an award of costs: NCAT Act, s 60(1). However, that rule does not apply to proceedings in the Consumer and Commercial Division where the amount claimed or in dispute is more than $30,000. Clause 38(2)(a) of the NCAT Rules provides that in those kinds of proceedings, the Tribunal may award costs in the absence of special circumstances. The same costs rule applies to internal appeals from such proceedings: NCAT Rules, cl 38A: (Pullicin at [10], Vickery at [9]).
(ii) Clause 38 of the NCAT Rules gives the Tribunal a wide discretion to make an order for costs. It does not specify the factors the Tribunal may take into account in exercising the discretion. When courts and tribunals have a discretion to award costs, in the absence of any disentitling conduct, costs are usually awarded in favour of the successful party. However, this is not an absolute rule: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [67] and [134] (Pullicin at [11], Vickery at [10]).
(iii) The respondents in Pullicin and Vickery both made various submissions about why the Appeal Panel should not make a costs order in the circumstances of these appeals. On the suggestion of the Appeal Panel, the parties in both matters made submissions on the question of whether the “public importance” of the question to be determined in the appeal meant that the parties should pay their own costs (Pullicin at [13], [24], Vickery at [11], [16]).
(iv) In Oshlack v Richmond River Council (1998) 193 CLR 72, an environmental activist unsuccessfully challenged a council’s development approval. In the Land and Environment Court, Stein J decided not to order Mr Oshlack to pay the council’s costs. The High Court upheld that decision. Among the factors Stein J took into account were that Mr Oshlack had nothing to gain from the litigation and that he was motivated to preserve the habitat of endangered fauna on the proposed development site (Pullicin at [25], Vickery at [17]).
(v) In Attrill v Richmond River Shire Council (1995) 38 NSWLR 545, the appellants were owners of dairy farms seeking injunctive relief and damages from the Council for the effects of flooding. There was a conflict of authority within the Equity Division of the Supreme Court as to the meaning of s 582A of the Local Government Act 1919 (NSW). It fell to the Court of Appeal to determine whether the Council was immune from liability under that provision. Although the appellants were unsuccessful, the Court of Appeal ordered that each party pay its own costs, Kirby P (Clarke JA agreeing) holding that:
“The issue raised on appeal is one of importance to local government. There has been a division of opinion within the Supreme Court. The determination of that dispute in this Court is in the public interest.”
(Pullicin at [26], Vickery at [18]).
(vi) In these appeals, however, the proceedings involve a commercial dispute between private entities – an owners corporation and a lot owner. Both respondents had a great deal to gain from a positive outcome. While owners corporations and lot owners have an interest in the law being settled and predictable, this was not public interest litigation in the sense that term is generally understood (Pullicin at [27], Vickery at [19]).
(vii) Even if these proceedings could be characterised as “public interest litigation”, the Appeal Panel noted that the discretion to award costs is a broad one, and it did not consider that any element of public interest or significance to the State, in either appeal, justified departure from the usual rule (Pullicin at [27], Vickery at [19]).
(viii) The Appeal Panel also rejected arguments that the costs of the appeal should not be awarded:
- because some grounds of appeal were not determined (Pullicin at [18]);
- because the issue of jurisdiction under s 106(5) was raised for the first time on appeal (Pullicin at [21]);
- because the appellant in Pullicin adopted the submissions of the appellant in Vickery rather than making its own submissions on key matters (Pullicin at [23]);
- because the appellant in Vickery only succeeded on appeal because of a “change in the law” occurring after the first instance decision, that is, the decision in Shih v The Owners – Strata Plan No 87879 [2019] NSWCATAP 263 (Vickery at [15]).
- because the respondent in Vickery was not eligible for the Suitors Fund under the Suitors Fund Act 1951 (NSW) which would have provided limited indemnity in respect of the appeal costs (Vickery at [20]).
Costs of the first instance proceedings
(ix) In the Pullicin appeal, there was no decision about costs made at first instance. Consequently, the Appeal Panel did not have power under ss 32(2)(b) and 81(2) of the NCAT Act to make an order as to first instance costs (Pullicin at [9]).
(x) In the Vickery appeal, the Tribunal ordered that the appellant pay the respondent’s costs, noting that the appellant did not advance any reasons why the usual rule, that “costs follow the event”, should not apply. Given the outcome of the appeal, the “event” is now that the appellant is the successful party. Accordingly, the Appeal Panel ordered that the first instance costs order be reversed (Vickery at [21]-23]).
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| Consumer and Commercial Division
K Ransome, Senior Member; P H Molony, Senior Member
In sum: The Appeal Panel allowed an appeal from the Consumer and Commercial Division on the basis that, in assessing the compensation payable for breach of a consumer guarantee, the Tribunal did not have regard to s 267 of the Australian Consumer Law (ACL), and did not consider the evidence before it as to what “reasonably foreseeable” losses the appellant had suffered.
Facts: The appellant, Mr France, commenced proceedings in NCAT alleging that the respondent had carried out faulty repairs to the motor of his boat ([1]).
The Tribunal delivered oral reasons for its decision at the hearing ([2]).
The Tribunal found that, despite being brought as a motor vehicle claim, the appellant’s claim was a consumer claim under the Fair Trading Act 1987 (NSW) (the FT Act) and the Tribunal had jurisdiction to hear it ([3]).
The Tribunal found that the motor had been reconditioned in August 2018 by another repairer, and that the appellant himself had undertaken further repairs in November 2018. He then took the boat to the respondent for timing and valve adjustments ([4]).
The respondent also carried out work on the top end of the motor, which the appellant authorised ([5]).
When the work was nearly completed, the respondent ran a test on the motor, which “ran for a short period and then seized”. An expert report suggested that the engine failure was due to the bottom end of the engine having been incorrectly assembled ([6]).
Although the respondent claimed it had not touched that part of the engine, the Tribunal found it was more likely than not that the motor’s failure resulted from “interference with the bottom section of the motor” by the respondent’s mechanic and that the respondent, “did not effect the repair with due care and skill” ([6]-[9]).
Accordingly, the Tribunal ordered that ([11]-[13]):
- The proceedings be transferred from the motor vehicle list to the General List and the application dealt with as a consumer claim.
- The respondent pay the appellant $2,000 as compensation for the defective work, representing the depreciated value of the motor. This was less than the amount claimed by the appellant, being $7,480 for the cost of a new engine and $14,793 in other expenses.
- The appellant did not have to pay the respondent’s invoices for carrying out the work.
- The respondent was required to make the appellant’s boat and additional parts available for collection.
The appellant agreed with the Tribunal’s finding that the respondent had failed to repair the boat with due care and skill, but appealed against the Tribunal’s approach to calculating the award of compensation ([38]-[39]).
Held (allowing the appeal and substituting orders 2 and 4 made at first instance):
Whether the Tribunal erred in applying relevant principles to its assessment of the appellant’s loss
(i) While the Tribunal did not expressly state what provision it was relying upon in finding the respondent was liable to the appellant, it was clear from the Member’s oral reasons that ([35]):
- he was considering the claim as a consumer claim to which the FT Act and ACL applied; and
- he was satisfied that the respondent “did not effect the repair with due care and skill”.
(ii) This was a clear reference to the consumer guarantee created by s 60 of the ACL. While it would have been desirable for the Tribunal to state clearly what provision it was applying, it was obvious from the Member’s use of the statutory language in s 60 that he was referring to that provision ([36]-[37]).
(iii) However, when the Member considered the appellant’s entitlements for breach of a consumer guarantee, he did not have regard to the provisions of s 267 of the ACL. He did not ([44]):
- consider whether the appellant was able to take action under s 267;
- if so, decide whether the failure to comply with the consumer guarantee was a “major failure” or not, as defined in s 268;
- if so, ask whether the appellant was entitled under s 267(3)(b) to compensation for any reduction in the value of the services below the price paid or payable for them; and
- ask what losses claimed by the appellant were reasonably foreseeable following the breach of the consumer guarantee, as recoverable under s 267(4).
(iv) This constituted a failure to have regard to matters required by the ACL and was an error of law ([45]).
(v) The Appeal Panel found that the appellant was entitled to take action under s 267, and the failure to comply with s 60 was a major failure within the meaning of both s 268(a) and (b) ([47]-[48]).
(vi) Accordingly, the appellant was entitled to recover ([52]):
- compensation for any reduction in the value of the services below the price paid or payable to the respondent; and,
- damages for any reasonably foreseeable loss suffered as a result of the failure.
Whether the Tribunal failed to have regard to all the evidence before it
(vii) In finding that the motor’s depreciated value was $2,000, the Tribunal did not have regard to evidence that the motor ([55]):
a. had been fully reconditioned earlier in the year;
b. had been fully operational and well used from August to November 2018;
c. had been turning over, without apparent difficulty, after the appellant worked on it and before it was taken to the respondent; and
d. was a vintage motor and not easily replaced.
(viii) Reading the decision as whole, it was clear that the Tribunal was aware of these facts, but did not refer to them when assessing the value of the motor. This amounted to a failure to deal with evidence. Such a failure may in appropriate circumstances be characterised as a failure to have regard to a relevant consideration or a failure to have regard to critical evidence ([56]).
(ix) It is generally not mandatory to consider particular evidence: Rodger v De Gelder (2015) 71 MVR 514, [2015] NSWCA 211 at [86]; Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443, [2012] NSWCA 244 at [15] per Basten JA (McColl and Macfarlan JJA agreeing) ([57]).
(x) However, s 38(6)(a) of the NCAT Act requires the Tribunal “is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings.” This includes an obligation to have regard to material which has been disclosed to the Tribunal and which is relevant to the facts in issue, at least where that material is of some significance ([57]).
(xi) Further, at common law, where a decision-maker ignores evidence which is critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the decision-maker, this is an error of law: Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [62]-[63]; Eadie v Harvey [2017] NSWCATAP 201 at [61]-[62].
(xii) In this matter, the Appeal Panel found that the Member erred in not taking the relevant evidence into account ([57]).
Disposition of the appeal
(xiii) Rather than emitting the determination of the appellant’s claims for compensation and damages to the Tribunal, the Appeal Panel decided to determine those claims itself, as provided for by s 80(3) of the NCAT Act ([59]).
(xiv) Accordingly, the Appeal Panel affirmed Orders 1 and 3 made at first instance, but substituted for Order 2 an order that the respondent pay the appellant $7,095.42 in damages for reasonably foreseeable losses suffered as a result of the respondent’s breach of a consumer guarantee under s 267(4) of the ACL. The Appeal Panel also added to Order 4 a requirement that the boat and parts, excepting the bottom part of the motor, be “in good order and undamaged” when made available for pick up by the appellant ([85]).
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| Consumer and Commercial Division - Tenancy
P Durack SC, Senior Member; G Sarginson, Senior Member
In sum: The Appeal Panel allowed an appeal from an interlocutory decision in the Consumer and Commercial Division which removed the appellant’s ex-husband as a party in residential tenancy proceedings on the basis that he had terminated his co-tenancy. The appeal was allowed because the Tribunal failed to consider the legal basis for termination of co-tenancies under the Residential Tenancies Act 2010 (NSW) (RT Act).
Facts: The second respondent, Mr O’Shea, is the ex-husband of the appellant, Ms Gavin. They were previously co-tenants of the landlord’s premises ([2]).
The co-tenancy came to an end on 7 July 2019 as a result of a Domestic Violence Termination Notice issued pursuant to provisions in Division 3A of Part 5 of the RT Act ([3]).
The landlord commenced proceedings against Mr O’Shea seeking compensation for the condition of the premises at the conclusion of the tenancy and payment of outstanding rent. Ms Gavin was then added as a party ([3], [7]).
At a subsequent hearing which Mr O’Shea did not attend, the Tribunal came to a view that Mr O’Shea had in fact ceased to be a co-tenant from 29 January 2019. This was based on an email exchange between Mr O’Shea and the landlord in which Mr O’Shea sought to be removed as a co-tenant because he and Ms Gavin had separated. The landlord also gave oral evidence that Mr O’Shea no longer lived at the premises ([6], [9]).
On this basis, the Tribunal ordered that Mr O’Shea be removed as a respondent to the proceedings. The appellant appealed from this order, but filed her Notice of Appeal late (12 days after the usual 14 day time limit for residential tenancy proceedings) ([12], [22]).
Held (granting an extension of time, granting leave to appeal and allowing the appeal):
(i) The Tribunal’s conclusion that Mr O’Shea was not a co-tenant was clearly based on the established fact that Mr O’Shea had ceased to reside at the premises from, at least, the end of January 2019. However, that in itself is not a ground for termination of a co-tenancy ([17]).
(ii) The Tribunal failed to ask itself what the legal basis is for termination of a co-tenancy ([18]).
(iii) The RT Act contains the following provisions concerning the termination of a co-tenancy:
- Section 101 provides for the termination of a residential tenancy by notice from a co-tenant where a fixed term has expired or where the tenancy is a periodic one. This was not applicable in this situation ([19]).
- Section 102 provides for the termination of a co-tenancy by order of the Tribunal, from a date specified in the order, upon an application by a co-tenant, if the Tribunal “is of the opinion that it is appropriate to do so in the special circumstances of the case”. However, it was clear the Tribunal below did not proceed under this section. Nor was the Tribunal considering whether there was a consensual termination of the co-tenancy by the parties, or proceeding under any law concerned with the termination of the residential tenancy itself ([20]-[21]).
(iv) The Appeal Panel acknowledged that the order appealed from was an interlocutory order, and that leave to appeal was required: NCAT Act, s 80(2)(a); Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 ([15]).
(v) However, in this case, there were plain errors of law central to the Tribunal’s decision, warranting a grant of leave to appeal ([16]).
(vi) In addition, the Appeal Panel found it was appropriate to grant an extension of time for the appellant to file her Notice of Appeal, bearing in mind the clear merits of the appeal, the explanation for delay (including the delay in the appellant obtaining advice from Legal Aid, and her personal health issues) and the relatively short period of delay ([13], [22]). |
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| | | Administrative and Equal Opportunity Division
Decision of: Armstrong J, President; L Pearson, Principal Member
Catchwords: APPEAL – interlocutory order – extension of time required – whether leave should be granted
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| Decision of: K Rosser, Principal Member; J Kearney, Senior Member
Catchwords: APPEAL – Costs of appeal – costs of first instance proceedings
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| Consumer and Commercial Division - Strata
Decision of: P Durack, Senior Member; D Goldstein, Senior Member
Catchwords: COSTS – Special circumstances – Abandonment of Grounds of Appeal
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| Administrative and Equal Opportunity Division
Decision of: Hennessy ADCJ, Deputy President; G Walker, Senior Member
Catchwords: APPEAL – where Tribunal summarily dismissed application under Government Information (Public Access) Act 2009 – whether the Tribunal made an error of law – whether new evidence should be admitted – whether what happened at a case conference affected the Tribunal’s decision
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| Administrative and Equal Opportunity Division
Decision of: Hennessy ADCJ, Deputy President; S Westgarth, Deputy President
Catchwords: STATUTORY CONSTRUCTION – meaning of s 83F(3) of the Education Act 1990 – whether that provision gives the Non-Government Schools not-for-profit Advisory Committee power to recommend to the Minister that a non-government school recover financial assistance in respect of a period when the school operated for profit or was a non-compliant school
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| Consumer and Commercial Division - Strata
Decision of: D Robertson, Senior Member; J McAteer, Senior Member
Catchwords: COSTS – Civil and Administrative Tribunal Act 2013 s 60 – special circumstances – delay in filing evidence – withdrawal of application shortly before hearing when application for adjournment refused – special circumstances established
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| Consumer and Commercial Division - Residential Communities
Decision of: Dr R Dubler SC, Senior Member; L Wilson, Senior Member
Catchwords: Costs – whether special circumstances exist pursuant to s.60 of the Civil and Administrative Tribunal Act 2013 – amount claimed or in dispute not more than $30,000 – no special circumstances exist – application for costs dismissed – no order as to costs.
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| Consumer and Commercial Division - Home Building
Decision of: P Durack SC, Senior Member; Dr J Lucy, Senior Member
Catchwords: APPEALS- extension of time for appeal – long delay – change of mind in decision to appeal – unsatisfactory explanation for the delay- inconsistency in one aspect of Tribunal’s reasons – otherwise no clear error of fact or law – appellant’s case did not have more substantial merit than merely being fairly arguable
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| Consumer and Commercial Division - Residential Communities
Decision of: S Westgarth, Deputy President; J Lonsdale, Senior Member
Catchwords: Residential Communities, site fee increase, whether increase was fair and equitable.
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| Consumer and Commercial Division - Home Building
Decision of: S Thode, Senior Member; J Currie, Senior Member
Catchwords: APPEAL – Home Building – No error of Law
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| Guardianship Division
Decision of: A Britton, Principal Member; L Dive, Senior Member; S Johnston, General Member
Catchwords: POWERS OF ATTORNEY — whether Tribunal failed to determine claim for orders under s 36(4) of the Powers of Attorney Act 2003 (NSW)
POWERS OF ATTORNEY — nature of the obligation owed by attorney to the principal
ADMINISTRATIVE LAW — nature of NCAT’s obligation to give reasons for decision — whether Tribunal failed as required to explain its reasoning processes that lead it to the conclusions it made
IRRELEVANT CONSIDERATIONS — whether in exercising the discretion to make, or not to make orders s 36(4) of Powers of Attorney Act the Tribunal had regard to impermissible considerations
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| Consumer and Commercial Division - Home Building
Decision of: S Westgarth, Deputy President; D Robertson, Senior Member
Catchwords: BUILDING AND CONSTRUCTION – Contract – damages for breach of contract
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| Consumer and Commercial Division
Decision of: Dr R Dubler SC, Senior Member; S Thode, Senior Member
Catchwords: APPEAL – Australian Consumer Law – No error of law
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| Consumer and Commercial Division - Strata
Decision of: F Marks, Principal Member; M Gracie, Senior Member
Catchwords: Appeal proceedings – grounds of appeal inadequately expressed – appeal from interlocutory decision requiring leave –application of guiding principle-held no merit in the appeal – leave to appeal refused – appeal dismissed – costs reserved.
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| Consumer and Commercial Division - Strata
Decision of: A Suthers, Principal Member
Catchwords: COSTS – costs on stay application in appeal – special circumstances
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| Consumer and Commercial Division - Commercial
Decision of: K Ransome, Senior Member; G Sarginson, Senior Member
Catchwords: APPEALS - Dividing fences - Renewal proceedings – Jurisdiction - Power to make orders in renewal proceedings - Whether orders appropriate - No error of law established
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| Consumer and Commercial Division - Motor Vehicles
Decision of: S Westgarth, Deputy President; P H Molony, Senior Member
Catchwords: APPEAL – consumer claim – Australian Consumer Law – failure to provide repair services with due care and skill – failure to establish a causal connection between repairs and damaged vehicle
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| Consumer and Commercial Division - Strata
Decision of: K Rosser, Principal Member; G Curtin SC, Senior Member
Catchwords: LAND LAW – strata title – obligations of owners and occupiers - by-laws – transmission of noise
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| Consumer and Commercial Division - Home Building
Decision of: K Rosser, Principal Member; G Curtin SC, Senior Member
Catchwords: BUILDING AND CONSTRUCTION – contract – breach - consent orders – non-compliance with consent orders – assessment of damages
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| Guardianship Division Decision of: M Schyvens, Deputy President; A Britton, Principal Member; M Wroth, Senior Member
Catchwords: APPEAL— appeal against decision not to exercise the discretion conferred by s 36(1) Powers of Attorney Act 2003 (NSW) to conduct a review of the operation and effect of an enduring power of attorney – factors relevant to the exercise of that discretion
APPEAL — whether the power conferred by 80(3) of the Civil and Administrative Tribunal Act 2013 (NSW) to deal with an appeal by way of a new hearing should be exercised
ADMINISTRATIVE LAW — nature of the Tribunal’s power to inquire under 38(2), 38(6)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) — whether Tribunal was obliged to exercise those powers
ADMINISTRATIVE LAW — whether decision not to exercise the discretion conferred by s 36(1) of the Powers of Attorney Act to conduct a review of the operation and effect of an enduring power of attorney
was “legally unreasonable”
ADMINISTRATIVE LAW — whether the Tribunal failed to consider “relevant and significant material”
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| Consumer and Commercial Division - Home Building
Decision of: P Durack SC, Senior Member; D Goldstein, Senior Member
Catchwords: APPEALS – notice of hearing – procedural fairness
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| Administrative and Equal Opportunity Division
Decision of: Cole DCJ, Deputy President; S Westgarth, Deputy President
Catchwords: Appeal – guardian ad litem – dismissal of proceedings
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| Administrative and Equal Opportunity Division
Decision of: Cole DCJ, Deputy President; S Westgarth, Deputy President
Catchwords: Appeal – guardian ad litem – dismissal of proceedings
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| Consumer and Commercial Division - Tenancy
Decision of: The Hon F Marks, Principal Member; M Gracie, Senior Member
Catchwords: Appeal Proceedings; leave to appeal; exercise of discretion to refuse adjournment and refuse leave to rely on evidence not filed in accordance with directions; no demonstrated prejudice; discretion miscarried because of incorrect information given by one party; substantial miscarriage of justice; decision not fair and equitable; remit to Tribunal for reconsideration; costs in the cause
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| Consumer and Commercial Division - Motor Vehicles
Decision of: K Rosser, Principal Member; Dr J Lucy, Senior Member
Catchwords: COSTS – Rule 38A – Rule 38 - Costs follow the event
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| | NACE Consulting Pty Ltd v Sharp [2020] NSWCATAP 40 Consumer and Commercial Division - Home Building
Decision of: S Westgarth, Deputy President
Catchwords: COSTS ON APPEAL - costs in the Consumer and Commercial Division, Rules 38 and 38A
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| Guardianship Division
Decision of: A Suthers, Principal Member; J Moir, Senior Member; J Le Breton, General Member
Catchwords: APPEAL— appeal against decision to appoint the New South Wales Trustee and Guardian as financial manager — factors considered by the Tribunal in exercise of its discretion
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| Consumer and Commercial Division
Decision of: A Britton, Principal Member; D Goldstein, General Member
Catchwords: COSTS — whether “special circumstances” within the meaning of s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) is established — whether appeal was “lacking in substance”
COSTS — exercise of the power to fix costs
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| Consumer and Commercial Division - Tenancy
Decision of: S Thode, Senior Member; Dr J Lucy, Senior Member
Catchwords: APPEAL – Residential Tenancy – No error of law – no question of principle
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| Consumer and Commercial Division - Tenancy
Decision of: P Durack SC, Senior Member; D Goldstein, Senior Member
Catchwords: APPEALS – residential tenancy – claim by landlord for break fee – whether tenant abandoned the premises or vacated with the landlord’s consent – no appealable error – no break fee recoverable
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| Consumer and Commercial Division - Home Building
Decision of: K Rosser, Principal Member; M Gracie, Senior Member
Catchwords: APPEAL – exercise of discretion to award costs – costs to follow the event; no order as to costs – no demonstrated error – no substantial miscarriage of justice – costs of the appeal
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| Consumer and Commercial Division - Strata
Decision of: L Pearson, Principal Member; J McAteer, Senior Member
Catchwords: COSTS – transfer of proceedings to Local Court - appeal against order for costs – appeal dismissed – costs of appeal – whether costs should be ordered in fixed amount
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| Administrative and Equal Opportunity Division
Decision of: N Hennessy ADCJ, Deputy President; P Durack SC, Senior Member
Catchwords: APPEAL – decision to remove child and cancel authorisation as an authorised carer – whether Tribunal misconstrued the Code of Conduct for Authorised Carers – whether Tribunal made other errors of law
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| Consumer and Commercial Division - Strata
Decision of: Armstrong J, President; Hennessy ADCJ, Deputy President; T Simon, Principal Member
Catchwords: COSTS – costs on appeal – whether costs should be ordered in favour of successful party – whether public interest litigation – significance of any change in the law
COSTS – costs at first instance – whether first instance costs order should be reversed following a successful appeal
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| The Owners – Strata Plan No 74835 v Pullicin (Costs) [2020] NSWCATAP 49 Consumer and Commercial Division - Strata
Decision of: Armstrong J, President; Hennessy ADCJ, Deputy President; T Simon, Principal Member
Catchwords: COSTS – costs on appeal – whether costs should be ordered in favour of successful party – whether public interest litigation
COSTS – costs at first instance – whether Appeal Panel has power to make a first instance costs order on appeal |
| Consumer and Commercial Division
Decision of: K Ransome, Senior Member; P H Molony, Senior Member
Catchwords: Appeal – Consumer Law – Australian Consumer Law - breach of consumer guarantee under s 60 that services will be rendered with due care and skill – measure of damages under s 267(4) – repairs to vintage inboard boat motor not done with due care and skill – measure of damages - reasonably foreseeable loss – reduction in value of motor or costs of repair, reassembly and refitting of inboard motor
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| Consumer and Commercial Division - Residential Communities
Decision of: S Westgarth, Deputy President; D Robertson, Senior Member
Catchwords: COSTS ON APPEAL – special circumstances
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| Consumer and Commercial Division - Commercial
Decision of: G Curtin SC, Senior Member; G Sarginson, Senior Member
Catchwords: ENVIRONMENT AND PLANNING – fences and boundaries – dividing fence – sufficient dividing fence
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| Consumer and Commercial Division - Home Building
Decision of: Dr R Dubler SC, Senior Member; D Charles, Senior Member
Catchwords: HOME BUILDING – whether the Tribunal erred in finding that the home owners had denied the plasterers access to the home building site – whether the home owners had denied the builder access to the home building site – whether the home owners by invoking the dispute resolution mechanism prevented the builder from terminating the home building contract – whether the home owners in denying the builder access to the home building site repudiated the building contract – whether the builder was entitled to terminate the home building contract –whether the Tribunal erred in dismissing the claim of misleading and deceptive conduct under the Australian Consumer Law (NSW)
APPEAL – whether a disputed finding of fact in a reply to appeal requires leave to appeal – whether the question as to whether or not, based upon facts fully found by the Tribunal, there is a repudiation of the contract, is a question of law
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| Consumer and Commercial Division - Tenancy
Decision of: P Durack SC, Senior Member; G Sarginson, Senior Member
Catchwords: APPEALS – residential tenancy – termination of co-tenancy – error to conclude one co-tenant no longer a tenant – failure to consider legal grounds for termination of co-tenancy
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| Consumer and Commercial Division
Decision of: G Curtin SC, Senior Member; J Currie, Senior Member
Catchwords: CONSUMER LAW – consumer guarantees – acceptable quality – reasonably fit for purpose – question of fact – no question of principle
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| Occupational Division
Decision of: Armstrong J, President; S Westgarth, Deputy President
Catchwords: APPEAL – administrative review – security industry licence – revocation of licence – whether appellant is a fit and proper person to hold a licence – whether contrary to public interest for appellant to hold a licence – no question of law – no leave ground
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| | DISCLAIMER: This publication has been prepared for information purposes only. The NCAT Appeal Panel Decisions Digest should not be relied on as legal advice nor is it a substitute for reading the decisions in full. NCAT does not accept any liability to any person for the information (or the use of the information) which is provided in this publication.
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