| | | | | NCAT Appeal Panel Decisions Digest Issue 2 of 2021
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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.
This issue features summaries of the following Appeal Panel decisions handed down in February 2021:
- Van Someren Boyd v Van Someren Boyd [2021] NSWCATAP 37 – in which the Appeal Panel refused leave to appeal and dismissed the appeal of the appellant, who lived in a property owned by her mother pursuant to a residential tenancy agreement, and sought to claim an equitable interest in the property due to her payment of rent and contributions to improving the property.
- Haines v Tohadze [2021] NSWCATAP 40 – in which the Appeal Panel refused the appeal of the appellant, a tenant, who had failed to pay rent and rental arrears to the respondent landlord, as ordered by the Tribunal, and failed to attend the hearing in person or by way of a representative, or make written submissions.
- Flight Centre Travel Group Limited t/a Aunt Betty v Goel [2021] NSWCATAP 44 – in which the Appeal Panel allowed the appeal of Flight Centre Travel Group Limited (Flight Centre) against the decision of the Consumer and Commercial Division that found the respondent was entitled to a refund for flights purchased which were cancelled due to travel restrictions under the COVID-19 pandemic. The Appeal Panel found that the appellant had acted merely as an agent between the respondent and Malaysia Airlines, and the terms and conditions made this clear, and so the appellant was not liable to pay a refund to the respondent.
- Tziallas v Barnsley [2021] NSWCATAP 33 – in which the Appeal Panel found that the appellant had failed to exercise the option to renew a lease for a commercial property, because he was aware at all material times of the terms of the lease.
Each case title is hyperlinked to the full decision available on NSW Caselaw.
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| Consumer and Commercial Division - Tenancy
A Suthers, Principal Member; D Robertson, Senior Member
In sum: The Appeal Panel refused leave to appeal and dismissed the appeal of the appellant, who lived in a property owned by her mother pursuant to a residential tenancy agreement, and sought to claim an equitable interest in the property due to her payment of rent and contributions to improving the property.
Facts: The appellant and her mother and stepfather, the respondents, entered into a residential tenancy agreement for a property. The appellant alleges that the property was purchased with funds to which she is entitled, and that her rental payments have contributed to the mortgage. The appellant claimed she had an equitable interest in the property, and sought to prevent the respondents from selling it. The respondents assert that the appellant had agreed to pay rental contributions, and contributions towards the improvement of the property, which would go toward the mortgage with no expectation of an equitable interest in the property ([1]-[2]).
Held (refusing leave to appeal and dismissing the appeal):
(i) Despite the appellant’s submissions that the Tribunal did not have jurisdiction, s 187(1)(c) of the Residential Tenancies Act 2010 (NSW) (the RTA) vests power in the Tribunal to make orders on the application of a “landlord”, as was done by the respondent. The appellant had executed a residential tenancy agreement and was paying rent to the respondents; nothing in s 7 of the RTA excludes the premises and nothing in s 8 excludes the agreement from the operation of the RTA ([39]).
(ii) Although the appellant argued that the hearing was listed for the sole purpose of submissions regarding the Tribunal’s jurisdiction, the directions made it plain that this question was a preliminary matter. It was evident that, in the event the Tribunal determined it had jurisdiction, it would proceed to determine the balance of the application ([50]-[51]).
(iii) The appellant submitted that the respondents brought forward new material at the hearing. Because the appellant did not put before the Appeal Panel the material which was before the Tribunal at first instance, there was no basis on which to determine whether the alleged late service resulted in a denial of procedural fairness to the appellant. Further, the nature of the orders, for the appellant to pay rental arrears in accordance with the residential tenancy agreement and to permit the respondents’ agent access to the property, render it difficult to see how the service of late evidence could have been significant in the decision ([52]-[53]).
(iv) In the absence of a specific agreement on the part of the respondents as landlords to credit the appellant’s expenditures against the rent, the appellant had no entitlement to set off those expenditures against her obligations in respect of the payment of rent ([29], [54]).
(v) The appellant’s ground of appeal that the residential tenancy was a “sham for tax purposes” could not be allowed because the appellant conceded that she had not explicitly made this submission to the Tribunal at first instance. Even if she had, the appellant could not demonstrate that the Tribunal failed to deal with that submission or made an error in doing so, as she did not put before the Appeal Panel the reasons of the Tribunal at first instance ([55]-[56]).
(vi) Leave to appeal could not be granted on the basis that the decision was not fair and equitable because the four bases upon which the appellant founded that submission effectively repeated the Grounds of Appeal ([30], [58]).
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| Consumer and Commercial Division - Tenancy
G Curtin SC, Senior Member; S Goodman SC, Senior Member
In sum: The Appeal Panel refused the appeal of the appellant, a tenant, who had failed to pay rent and rental arrears to the respondent landlord, as ordered by the Tribunal, and failed to attend the hearing in person or by way of a representative, or make written submissions.
Facts: The appellant was a tenant of the respondent landlord and failed to pay rent, and so the landlord sought orders for termination and possession of the property. Consent orders were made in May 2020, in which the tenant agreed to pay rent and a rental bond, and the landlord agreed to a rental reduction for six months. The tenant defaulted under the payment plan and the matter, after an adjournment in October, came before the Tribunal in November 2020. The matter was again adjourned and relisted for January 2021. The landlord made an application for an urgent hearing on the grounds of financial hardship, and the tenant requested an adjournment on the basis that he had a job interview. The tenant refused the options of presenting written evidence or authorising a representative to make submissions. The Tribunal refused the adjournment request and made orders for termination of the tenancy, possession for the landlord and the payment of rental arrears ([3]).
Held (dismissing the appeal):
(i) Although the tenant submitted that he received only 15 minutes notice of the hearing (or five business hours, as submitted in the Notice of Appeal), the determinative issue is whether the appellant had sufficient time to properly present his case, in terms of evidence or submissions or some other aspect of a properly conducted hearing. The tenant provided to the Tribunal all the evidence that he desired to tender, and upon which he intended to rely. The tenant elected not to make written submissions or authorise a representative to make submissions on his behalf to the Tribunal, and led such evidence as he desired. The tenant failed to establish what he would have done differently had he received longer notice; although the notice was short, there was no procedural unfairness ([11]-[14], [16]-[18]).
(ii) The appellant alleged he was under duress at the time of the hearing, due to an existing medical condition. The appellant said that the medical condition had since been resolved. The tenant also did not obtain a copy of the sound recording from the hearing before the Tribunal which may have indicated whether or not there was duress. As no evidence was submitted, and the claim was made for the first time during the hearing of the appeal, the Appeal Panel found that the appellant had failed to prove he was under any duress at the hearing before the Tribunal ([22]-[28]).
(iii) The tenant also appealed on the ground that he could “pay the rent daily rate at 1275PW”. The Appeal Panel found that this was not an appeal point ([30]-[31]).
(iv) The Appeal Panel rejected the appellant’s submission that he asked for an adjournment of the hearing and the request was ignored, because in fact the Tribunal considered the application and refused it with reasons. The refusal of the application was in no way erroneous, and no error was identified by the tenant or found by the Appeal Panel ([33]-[34]).
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| Consumer and Commercial Division - Consumer Claim
Cowdroy AO QC ADCJ, Principal Member; T Simon, Principal Member
In sum: The Appeal Panel allowed the appeal of Flight Centre Travel Group Limited (Flight Centre) against the decision of the Consumer and Commercial Division that found the respondent was entitled to a refund for flights purchased which were cancelled due to travel restrictions under the COVID-19 pandemic. The Appeal Panel found that the appellant had acted merely as an agent between the respondent and Malaysia Airlines, and the terms and conditions made this clear, and so the appellant was not liable to pay a refund to the respondent.
Facts: In November 2019 the respondent purchased via the appellant’s website flights from Sydney to Delhi for April 2020, to be provided by Malaysia Airlines. In doing so, the respondent necessarily agreed to the Terms and Conditions of purchase by clicking on a hyperlink. Due to the COVID-19 pandemic, Malaysia Airlines cancelled the flight, and although alternative schedules were offered, none were suitable for the respondent ([1]-[7]).
The respondent sought a refund from the appellant, and was successful at the Tribunal, which found there had been a breach of contract and a breach of the Australian Consumer Law (ACL), although specific sections were not identified ([7], [8]).
Held (allowing the appeal):
(i) The High Court in ACCC v Flight Centre Travel Group Limited (2016) 261 CLR 203; [2016] HCA 49 established that, in selling air tickets to passengers on behalf of airlines, Flight Centre was acting as an agent, and did not contract as a principal. The terms and conditions, which the respondent was obliged to accept before purchasing the tickets, make it clear that the appellant was acting as an agent for the principal, Malaysia Airlines ([32]-[33], [35]).
(ii) A written signed contract can be entered online by clicking on the relevant buttons and the computer displaying all terms needed to make the purchase. Although the respondent may have been aware of the existence of the conditions but chose not to read them, he is nevertheless bound by the conditions. Although the hyperlink might have been more prominently displayed, the respondent nevertheless acknowledged and agreed to their incorporation into the contract by clicking on the link ([37]-[38], [44]).
(iii) The rights and liabilities of the parties should be determined by what they reasonably led the other party to believe they were undertaking a legal obligation to perform. The Tribunal misconstrued the contract as the appellant never contracted with the respondent to supply air transport, but merely to act as an agent to provide tickets ([40], [61]).
(iv) The respondent’s submission that payment was made in respect of the travel to India proceeds on the basis that Flight Centre was to provide the air carriage services, when in fact the services provided by Flight Centre were those of an agent. It has not been suggested that Flight Centre did not fulfil its contractual obligations to the respondent to exercise all due care in making the reservations. There was no breach of the ACL, as the supply of services was limited to making reservations in a competent manner ([50], [54], [61]).
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| Consumer and Commercial Division - Commercial
Cowdroy AO QC ADCJ, Principal Member; D Robertson, Senior Member
In sum: The Appeal Panel found that the appellant had failed to exercise the option to renew a lease for a commercial property, because he was aware at all material times of the terms of the lease.
Facts: A lease for a commercial property owned by the respondents was transferred to the appellant from a former tenant by an undated transfer document. In October 2018 the appellant advised the respondents via email that he had acquired the business being conducted on the premises. The email referenced a phone conversation that said the parties had “agreed two (2) year lease with a three (3) year option”. The next day the respondents replied that the appellant was taking over the existing lease originally granted to the predecessor of the former tenant who transferred the lease to the appellant. The email said “Your current term ends on 14 November 2019 and you have the option for renewal for a term of three years”. Email communications continued between the parties regarding the condition of the premises. In April 2020 the respondents gave notice to the appellant terminating the lease, effective 31 May 2020. The appellant instituted proceedings in the Consumer and Commercial Division regarding first, what were the terms of the lease, particularly governing the option; and second, whether the option had been exercised. The Tribunal found in favour of the respondents and the appellant appealed ([7]-[9], [13], [15]).
Held (dismissing the appeal):
(i) The Appeal Panel distinguished the present proceedings from those in Darzi Group Pty Ltd v Nolde Pty Ltd [2019] NSWCA 210, in which the Court of Appeal found the common intention of the parties, ascertained objectively from their conduct and communications, was that a lease had been created. In that case the landlord said it was “agreeable” to a fixed term and option, to which the tenant replied that it agreed. The Appeal Panel found that although there was evidence of an agreement to grant a three year option, the common intention of the parties was not that the option had been exercised by “automatically kick[ing] in”, as was suggested by the appellant. The evidence suggested that at all material times the appellant was aware that he had not exercised the option, and particularly in January 2020 when he sent an email in which he stated he “suspected the lease had lapsed” ([28], [30], [36]-[39]).
(ii) The appellant’s assertion that the respondent was guilty of unconscionable conduct by encouraging the appellant to believe he would have long tenure was also rejected by the Appeal Panel. Communications by the appellant clearly indicated his understanding of the terms of his occupation, and therefore the failure to provide a disclosure document or tenant’s guide cannot make the respondent’s conduct unconscionable. Although the respondent, being a retired solicitor, acknowledged that he would not have advised a client to act as he did, the Appeal Panel found this could not render the respondent’s conduct unfair or unconscionable. A solicitor’s obligation is to protect the interests of their own client. The fact that the first respondent may have been careless of his own interests (and no such finding was made) does not make his conduct unfair to the appellant ([28], [41]-[44]).
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| | | | Smith v Lambert [2021] NSWCATAP 16 Administrative and Equal Opportunity Division
Decision of: S Westgarth, Deputy President; The Hon D Cowdroy AO QC, Principal Member
Catchwords: RETAIL LEASE-agreement to vary, repudiation, question of law.
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| Guardianship Division
Decision of: Hennessy ADCJ, Deputy President; Mr A Boxhall, Senior Member (Legal); Dr I Beale, Senior Member (Professional)
Catchwords: APPEAL – Civil and Administrative Tribunal (NSW) – Guardianship Division – internal appeal – financial management order – review or revocation – no question of law identified – no reason to give leave to appeal on any other ground |
| Consumer and Commercial Division - Social Housing
Decision of: Dr R Dubler SC, Senior Member; L Wilson, Senior Member
Catchwords: RESIDENTIAL TENANCY – No procedural unfairness – No appealable errors |
| | Hope v Hutchings; Hutchings v Hope [2021] NSWCATAP 19 Consumer and Commercial Division - Home Building
Decision of: T Simon, Principal Member; S Frost, Senior Member
Catchwords: HOME BUILDING – time limitation, building claim, sham contract, against the weight of evidence, subjective intention.
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| Consumer and Commercial Division - Tenancy
Decision of: G Curtin SC, Senior Member; R C Titterton OAM, Senior Member
Catchwords: APPEALS – right of appeal – scope of right – consent orders – no appearance by appellant – appeal dismissed – appeal frivolous, otherwise misconceived and lacking in substance |
| Consumer and Commercial Division - Tenancy
Decision of: G Curtin SC, Senior Member; Dr J Lucy, Senior Member
Catchwords: APPEALS – right of appeal – scope of right – consent orders – no appearance by appellant – appeal dismissed – want of prosecution of appeal |
| Consumer and Commercial Division - Tenancy
Decision of: P Durack SC, Senior Member; J Kearney, Senior Member
Catchwords: LEASES AND TENANCIES - residential tenancy – alleged breaches by landlord of right to quiet enjoyment, premises not fit for habitation and repair obligation-alleged noise from plumbing system-noise recordings by Tenant-insufficient proof of breach.
CIVIL PROCEDURE -apprehended bias-telephone hearing-exchange between one party and the Tribunal whilst other party’s telephone connection lost-exchange after Tribunal had expressed its conclusions about claimed breaches and substance of its decision-bias allegation rejected-alleged procedural unfairness.
APPEALS-extension of time for lodgment of appeal-adequacy of reasons-alleged application of the wrong tests- no error of law-no error otherwise warranting leave to appeal. |
| Administrative and Equal Opportunity Division Decision of: A Britton, Principal Member; J Lonsdale, Senior Member
Catchwords: ADMINISTRATIVE LAW —Government Information — whether Tribunal misapplied cll 1(d), 1(g), 3(a); 3(g) of the Table to s 14 of the Government Information (Public Access) Act 2009 (NSW)
ADMINISTRATIVE LAW — Government Information — whether in applying cll 3 (f) and 3(g) of the Table to s 14 of the Government Information (Public Access) Act 2009 (NSW) the Tribunal made inconsistent findings
ADMINISTRATIVE LAW — procedural fairness — whether Tribunal failed to consider a “substantial, clearly articulated argument relying upon established facts”
ADMINISTRATIVE LAW — procedural fairness — apprehended bias — actual bias
ADMINISTRATIVE LAW — adequacy of reasons — nature of obligation to give reasons for decision — whether Tribunal gave adequate reasons
PRACTICE and PROCEDURE — whether permissible for expert witness to be present in hearing room before giving evidence |
| Consumer and Commercial Division - Consumer Claim
Decision of: K Ransome, Senior Member; J Currie, Senior Member
Catchwords: APPEAL – consumer claim – termination of gym membership agreement – whether member erred by not considering contractual term – error of law |
| Consumer and Commercial Division - Home Building
Decision of: P Durack, Senior Member; D Robertson, Senior Member
Catchwords: BUILDING AND CONSTRUCTION –proof of loss for incomplete and defective building work
APPEALS – extension of time in which to lodge appeal – no error of law – no error warranting leave to appeal |
| Consumer and Commercial Division - Commercial
Decision of: S Westgarth, Deputy President; D Robertson, Senior Member
Catchwords: PRACTICE AND PROCEDURE – Remittal of proceedings from an Appeal Panel of the Tribunal – Finality principle – Tribunal exceeded jurisdiction by making orders inconsistent with terms of remittal. |
| Guardianship Division
Decision of: Hennessy ADCJ, Deputy President; Mr A Boxhall, Senior Member (Legal); Dr I Beale, Senior Member (Professional)
Catchwords: APPEAL – Civil and Administrative Tribunal (NSW) – Guardianship Division – internal appeal – financial management order – review or revocation – no question of law identified – no reason to give leave to appeal on any other ground |
| Consumer and Commercial Division - Tenancy
Decision of: P Durack SC, Senior Member; R C Titterton OAM, Senior Member
Catchwords: LEASES AND TENANCIES-residential tenancy- termination by tenant before expiry of fixed term-discretion to pay compensation to the landlord- ss 104 and 107 of the Residential Tenancies Act 2010 (NSW) - compensation refused- claim in respect of alleged excessive rent due to reduction of facilities-ss 44 and 47 of the Residential Tenancies Act 2010 (NSW)-claim for breach in respect of reduction of facilities-dispute as to extent of reduction of facilities because of state of swimming pool and extent rent was excessive.
APPEALS-error of law-failure to ask right questions-discretion to award compensation under s 107(2) different to that under s 104(2)-claim for refund of excessive rent distinct from claim for damages for breach-adequacy of reasons-absence of factual findings. |
| Guardianship Division
Decision of: The Hon F Marks, Principal Member; R Booby, Senior Member; M Bolt, General Member
Catchwords: APPEAL FROM GUARDIANSHIP DIVISION - appeal initiated by a person purportedly acting under power of attorney – held person initiating appeal did so without demonstrated authority – appeal incompetent – appeal dismissed |
| Guardianship Division
Decision of: A Britton, Principal Member; J Kearney, Senior Member; M Bolt, General Member
Catchwords: ADMINISTRATIVE LAW – Bias – Actual bias -apprehended bias
APPEALS – failure to make finding of fact– failure to consider mandatory considerations – failure to consider statutory principles
CIVIL PROCEDURE – Hearings – Procedural fairness |
| Consumer and Commercial Division - Tenancy
Decision of: G Blake AM SC, Senior Member; GK Burton SC, Senior Member
Catchwords: RESIDENTIAL TENANCY - compensation and rent reduction for disturbance by water entry |
| Consumer and Commercial Division - Consumer Claim
Decision of: S Westgarth, Deputy President; P H Molony, Senior Member
Catchwords: ADMINISTRATIVE LAW- Civil and Administrative Tribunal (NSW) - question of law – construing terms of agreement. Cl12 sch 4 leave grounds. |
| Consumer and Commercial Division - Commercial
Decision of: D Cowdroy AO QC ADCJ, Principal Member; D Robertson, Senior Member
Catchwords: LEASES AND TENANCIES - Retail Leases Act 1994 (NSW) – terms of the lease - whether the Tribunal erred in failing to find that the appellant exercised an option to renew the lease – whether there was unconscionable conduct on the part of the respondents – whether the respondents’ conduct misled the appellant |
| Consumer and Commercial Division - Tenancy
Decision of: G Blake AM SC, Senior Member; R C Titterton OAM, Senior Member
Catchwords: LEASES AND TENANCIES – Residential tenancies – Appeal from Tribunal decision where no evidence filed by Tenant – no question of principle |
| Consumer and Commercial Division - Commercial
Decision of: S Westgarth, Deputy President; G Curtin SC, Senior Member
Catchwords: APPEAL – no errors of law – no other errors – no point of principle |
| Consumer and Commercial Division - Tenancy
Decision of: A Suthers, Principal Member; D Robertson, Senior Member
Catchwords: LEASES AND TENANCIES – Residential Tenancies Act – claim by tenant who has executed a residential tenancy agreement to an equitable interest in the property the subject of the agreement – Tribunal’s jurisdiction not ousted by claim to an equitable interest |
| Consumer and Commercial Division - Tenancy
Decision of: G Blake AM SC, Senior Member; S Goodman SC, Senior Member
Catchwords: LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Non-payment of rent – Amount of arrears – No error of law – Leave to appeal sought and refused |
| Consumer and Commercial Division - Tenancy
Decision of: A Britton, Principal Member; J Kearney, Senior Member; M Bolt, General Member
Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal interlocutory decision – directions made in connection with preparation for hearing and issue of summonses |
| Consumer and Commercial Division - Tenancy
Decision of: G Curtin SC, Senior Member; S Goodman SC, Senior Member
Catchwords: APPEALS – procedural fairness – hearing rule – no procedural unfairness established – possibility of a different outcome had there been a properly conducted hearing not established |
| Consumer and Commercial Division - Tenancy
Decision of: K Ransome, Senior Member; D Charles, Senior Member
Catchwords: APPEAL – residential tenancy – claim by tenant for compensation for goods destroyed by mould – evidence not admitted at the hearing before the Member – no error of law – no substantial miscarriage of justice – leave to appeal refused |
| Administrative and Equal Opportunity Division
Decision of: Hennessy ADCJ, Deputy President; S Westgarth, Deputy President
Catchwords: APPEAL – no question of law identified – no reason for giving leave to appeal on a ground other than a question of law |
| Consumer and Commercial Division - Social Housing
Decision of: P Durack SC, Senior Member; D Robertson, Senior Member
Catchwords: LANDLORD & TENANT-social housing residential tenancy-claims for compensation and reduced rent-new points on appeal not permitted – new evidence not presented to Tribunal - no appealable error established. |
| Consumer and Commercial Division - Consumer Claim
Decision of: Cowdroy AO QC ADCJ; T Simon, Principal Member
Catchwords: APPEALS — consumer claim — breach of contract for airline travel — whether member erred by not considering agency as provided by terms and conditions — error of law |
| Consumer and Commercial Division - Home Building
Decision of: G Curtin SC, Senior Member; J McAteer, Senior Member
Catchwords: APPEALS – procedural fairness – hearing rule – decision on costs made at time appellant stayed from filing and serving submissions – denial of procedural fairness
COSTS – party/party – rr 38 and 38A of the Civil and Administrative Tribunal Rules 2014 – special circumstances – Calderbank offer may be a special circumstance |
| | 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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