NCAT Appeal Panel Decisions Digest Issue 2 of 2022 | 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 2022:
Lazaris v Kale [2022] NSWCATAP 36: The appeal was dismissed as there was no utility in the appeal. The appellant did not apply for written reasons, nor did they provide a copy of a sound recording or transcript of the first instance decision. Cumming v Deadman [2022] NSWCATAP 43: An appeal was allowed where the appellants were denied procedural fairness - the Tribunal's orders were varied at the request of the respondents and without the knowledge of the appellants under s 63 of the Civil and Administrative Tribunal Act 2013 (NSW). ZVQ v ZVR [2022] NSWCATAP 33: A purported appellant had no standing to bring an external appeal from the Mental Health Review Tribunal. Patterson v Trip a Deal Pty Ltd [2022] NSWCATAP 35: An application was incorrectly dismissed by the Tribunal, finding it had no jurisdiction to hear the matter. Pfeiffer v Chadwick [2022] NSWCATAP 35: The respondent was found to have engaged in misleading and deceptive conduct, relying on terms and conditions which did not form part of the contract. The terms and conditions were provided after the accommodation booking was made, therefore legally unenforceable.
Each case title is hyperlinked to the full decision available on NSW Caselaw. | | | Lazaris v Kale [2022] NSWCATAP 36 Consumer and Commercial Division - Consumer Claim G Curtin SC Senior Member; G Sarginson, Senior Member
In Sum: The Appeal Panel dismissed an appeal in circumstances where the appellant did not provide a sound recording, transcript nor had they applied for written reasons from the initial hearing. The Appeal Panel therefore was unable to determine whether the appeal grounds were made out. The only option for the Appeal Panel was to dismiss the appeal as appeals are concerned with determining whether the Tribunal erred in the first instance, not a “second hearing”.
Facts: The Appellant was a real estate agent who owned and ran a property maintenance business. The respondent owned two properties in regional NSW. The appellant had works completed at the properties including the replacement of an electric oven at one property and the replacement of downlights at the second property. The appellant sent the respondent an invoice however there were issues with the installation and the works had not been carried out by a qualified tradesman. The Tribunal ordered that the respondent, at her own expense, was to cause the undertaking of the work in a proper and workmanlike manner. On appeal, the appellant challenged the Tribunal’s finding that the works should have been carried out by a licensed electrician. She also claimed the Tribunal did not follow legislation and ultimately should reverse the orders, ordering the respondent to pay for the maintenance. The Tribunal’s orders recorded that it gave detailed oral reasons at the conclusion of the hearing.
Held (dismissing the appeal):
(i) The Appeal Panel stated that it was unaware of reasons the Tribunal gave for its decision. The Appeal Panel noted, having no access to the transcript or sound recording prevented it from doing anything other than dismissing the appeal. It held that “appeals are not a second hearing. Appeals are concerned with whether the Tribunal erred in its decision, and it goes without saying that an Appeal Panel must know what the Tribunal’s reasons for decision were in order to determine whether there was some error in those reasons” [25].
(ii) Additionally, in oral submissions the appellant did not address any of the issues raised by her grounds of appeal. These included grounds to the effect that the Tribunal had already “made up its mind before the hearing”, that the Tribunal “attacked” her and that the Tribunal did not follow the legislation [17]. Further, in the absence of a sound recording or transcript of the hearing it was not possible for the Appeal Panel to ascertain whether there was any substance to her allegations.
(iii) The Appeal Panel noted that the appellant had already complied with the Tribunal’s orders and the amount in the dispute was relatively small. The Appeal Panel held that there was no utility in hearing the appeal. | Cumming v Deadman [2022] NSWCATAP 43 Consumer and Commercial Division - Commercial G Curtin SC, Senior Member; J Currie, Senior Member
In sum: The Tribunal amended orders under the “the slip rule”, which is set out in s 63 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). Section 63 of the NCAT Act allows the Tribunal to correct errors in its decisions. This applies to “obvious errors” in the text of decisions. These include typographical errors, slips, omissions, defects in form and inconsistencies between stated decision and reasons. The respondent requested that changes be made to the wording of the orders. However, as the appellants were not notified or given the opportunity to be heard on the application, there was a denial of procedural fairness and the appeal was upheld. The appellants had not been given the opportunity to be heard, the original orders may not have been amended at all, or not amended in the same form as they were.
Facts: The parties were neighbours on regional properties. A dispute arose in relation to their dividing fence. The respondent commenced proceedings seeking orders to construct a new fence of a certain size and type. The parties were able to agree on most aspects of the fence and the Tribunal made orders. Subsequently, the respondent emailed the Tribunal requesting that the orders be varied. It was requested that; the wording be changed to suit the fencing contractor, to amend the length of the fence stipulated in the orders (which covered 20 meters of the fence however the fence was almost 60 meters long). The respondent referred to this amendment as a “no brainer”. The appellants were not privy to this email. The Tribunal made 3 amendments to the language in the orders and the orders were varied in relation to the length of the fence.
Held (allowing the appeal):
(i) The Appeal Panel held that parties to litigation have a “basal right” to receive all of their opponent’s evidence, submissions and copies of communications between their opponent and the Tribunal (at [17]). Having not been made aware of the email, the appellants did not have an opportunity to make submissions in response, or seek leave to adduce further evidence. The Appeal Panel held this to be a denial of procedural fairness as a fundamental “part of procedural fairness concerns notice and the opportunity to be heard” [19].
(ii) The onus lies with the Tribunal “to take reasonable or practicable measures to ensure that the opposing party has a reasonable chance to be or otherwise have submissions considered in proceedings” (as required by s 38 (5)(b) of the NCAT Act): [22].This did not occur.
(iii) The Appeal Panel further held: “the usual order where procedural fairness has occurred is for a new hearing. That order will not be made if we were of the opinion that a properly conducted application (by the respondent to vary the terms of the original orders) could not have produced a different result” [25].
(iv) The Appeal Panel reflected upon the language at the hearing in the first instance in relation to whether it was just a section, or the entire length of the fence in which the pine board was to be placed. It held that the extracts from the transcript of the hearing did not establish a clear agreement and therefore the amendments that were made go beyond the scope of s 63 of the NCAT Act: [33].
(v) Ultimately, the appeal was allowed, the Tribunal’s orders which were varied upon email request were set aside and the orders in the first instance were reinstated. The respondent’s application to vary the orders was remitted to the Tribunal to be dealt with according to law. | ZVQ v ZVR [2022] NSWCATAP 33 Mental Health Review Tribunal Armstrong J, President; A Britton, Deputy President
In sum: Appeal proceedings were dismissed on the basis that the appellant (ZVQ) had no standing to bring an appeal to NCAT from the Mental Health Review Tribunal (MHRT). The purported appellant was an appointed guardian of her sister (ZVR), who was detained in a mental health facility. A financial management order was made in relation to ZVR’s money, without the knowledge of ZVQ. The appellant sought to have the orders quashed, however the Appeal Panel held she was not a person to whom the MHRT orders relate, nor was she a party to the MHRT proceedings and thus had no entitlement to bring an external appeal to NCAT.
Facts: ZVR was detained in a mental health facility as a result of an application made under s 46 of the NSW Trustee and Guardian Act 2009 (NSW) (TGA). The MHRT made financial management orders, and ZVR’s finances were to be managed by the NSW Trustee and Guardian.
ZVQ, an appointed guardian was not a party to the proceedings and did not attend the hearing in which the above orders were made at the MHRT. ZVQ argued that she was denied procedural fairness by not having been notified of the hearing which is required under the Mental Health Act 2007 (NSW) (MHA). Consequently, she was unable to make submissions and argued that based on the denial of procedural fairness that the orders should be quashed pursuant to s 79 of the NCAT Act which allows NCAT to determine external appeals. FHC (the facility in which ZVR was detained) advised that it consented to the appeal being brought to NCAT and acknowledged that they failed to notify ZVQ of the MHRT hearing.
Under s 78(1)(h) of the MHA, an authorised medical officer of a mental health facility must take “all reasonably practicable steps” to notify any “designated carer” of a patient if the patient has any matter before the MHRT. Under s 71(1)(a) MHA, the “designated carer” of a patient includes the guardian of the patient. ZVQ is a “designated carer” for ZVR. It was evident that the authorised officer took no steps to notify ZVQ as required by s 78. ZVQ submits she was a party to the MHRT proceedings in that she was “the principal care provider” of ZVR and therefore had statutory rights as outlined above to be notified of, attend and make submissions in the MHRT proceedings.
Held (dismissing the appeal proceedings):
(i) The purported appeal was not a competent appeal. The appeal proceedings were dismissed under s 55(1)(b) of the NCAT Act on the basis that the purported appeal was misconceived.
(ii) Neither the Trustee and Guardian Act, the NSW Trustee and Guardian Regulations nor the Mental Health Act defines the term “party to proceedings”. Ultimately, the Appeal Panel said that the statutory scheme and the procedures of the MHRT do not indicate that a designated carer and/or a principal care provider, is “a party to the proceedings”. The MH Act does not give ZVQ the right to participate in, or be represented in, proceedings before the MHRT.
(iii) ZVQ could not be considered as a party to the MHRT proceedings for the purpose of NCAT external appeal rights under s 50(1) of the TG Act. While she had a right to be informed of the MHRT hearing under the Mental Health Act, that failure does not provide a basis for ZVQ to bring an external appeal to NCAT. The appeal proceedings were subsequently dismissed based on the fact she was not a party to the MHRT proceedings and therefore had no entitlement or standing to bring an appeal to NCAT. | Patterson v A Trip A Deal Pty Ltd [2022] NSWCATAP 35 Consumer and Commercial Division - Consumer Claim S Westgarth, Deputy President; G Curtin SC, Senior Member
In sum: The Appeal Panel set aside the decision of the Tribunal on four grounds; for failing to provide adequate reasons, failing to address the appellant’s case or evidence, a failure to make critical findings of fact, and for a substantial miscarriage of justice. The matter was remitted to be heard by a differently constituted Tribunal.
Facts: The Appellants (the Pattersons), were New Zealand residents who booked a holiday through Trip A Deal Holdings Pty Ltd (TAD). Central to the dispute, was whether the Pattersons booked their holiday with TAD Australia (TAD AU), as contended by the appellants or with TAD New Zealand (TAD NZ), as argued by the respondents. Both companies were wholly owned subsidiaries of TAD which was based in NSW; they shared identical directors and advertised the same holiday deal on their websites, however, at different prices. Essential information such as the booking confirmation, the initial booking cancellation (due to Covid-19 restrictions), the rescheduling of the trip and the final cancellation (also due to Covid-19) was all communicated through a TAD AU email address. Following the final cancellation, the Pattersons received an email from TAD NZ containing a “credit note voucher” in lieu of a refund, which they did not accept. At first instance, the Tribunal held it had no jurisdiction to hear the complaint and dismissed the application in its entirety.
Held (allowing the appeal):
(i) Ultimately, the Appeal Panel held the Tribunal erred in four ways. First the Appeal Panel dealt with the issue of procedural fairness. At first instance, TAD AU served their documentary evidence approximately one day before the hearing, both in breach of the Tribunal’s directions and leaving “insufficient time” for the Pattersons to marshal their evidence in response (at [12]). As “significant new evidence” had arisen and the material was not “reasonably available” prior to the hearing, the Appeal Panel held that they likely “suffered a substantial miscarriage of justice” (at [14]).
(ii) It was held that the Tribunal erred by failing to make critical findings of fact. It made no finding as to whether the Pattersons paid the TAD AU or TAD NZ advertised price (at [49]). This lead to an incorrect finding that the contract was formed with TAD NZ - based on the assumption that the booking was made in New Zealand, with New Zealand dollars. The Appeal Panel observed, that it was neither “here nor there” whether the payment commenced in New Zealand currency as it “may have been converted” to Australian dollars when the booking was made. Of greater importance was determining which of the advertised deals were purchased, and which price was paid (at [41], [49]). Accordingly, the Tribunal’s “reasons were inadequate” and there was “no explanation” for the finding that the contract was made with TAD NZ (at 51]).
(iii) The Appeal Panel also held that the Tribunal erred by insufficiently attending to the Pattersons’ case (at [55]). In concluding that the contract was formed with TAD NZ, the Appeal Panel held that the Tribunal must have “overlooked” the documentary evidence as it was “not considered at all let alone in a satisfactory way” [54]. The Appeal Panel considered “five significant pieces of evidence” which indicated the transaction was made in Australia. Namely, the receipt from the transaction was from TAD AU; an email from TAD AU confirmed the Pattersons had purchased the trip “with us”; most communication was received from TAD AU email addresses (the only emails from TAD NZ were “no reply” emails); the Pattersons flight tickets were consistent with booking with TAD AU (commencing flights in Melbourne to South America, rather than Auckland); and oral evidence from the respondents indicating the “call centre, everything runs from” Australia (at [50], [51]). The Appeal Panel held, that in order to develop “satisfactory reasons for a decision,” it was necessary for the Tribunal to “apprehend the gravamen of each side’s case” and the evidence must be considered and explained in the reasons for their decision (at [53], [55]).
(iv) Finally, the Tribunal made two errors concerning jurisdiction. The first, in finding that NCAT lacked the jurisdiction to hear the matter it dismissed the application (at [56]). The second jurisdictional failure was overlooking the operation of s 79K of the Fair Trading Act 1987 (NSW) (FTA), which may have given effect to the fact “that Tribunal did… have jurisdiction” [57]. Section 79K(1)(a) FTA empowers the Tribunal “to hear and determine a consumer claim” if the services were supplied in NSW. TAD AU’s assertion that “everything” runs from Australia indicated that the services were supplied in NSW, thus engaging the provision. Further, the terms and conditions which were quoted by the Tribunal expressly stated that “New Zealand courts would have non-exclusive jurisdiction” to hear disputes (at [60]). Therefore, even if the contract were to be formed with TAD NZ and was to be determined by New Zealand law, the Appeal Panel held there was “no prima facie impediment” (either under private international law or s 79K FTA) to hearing any disputes between those parties. Consequently, it stated the Tribunal has jurisdiction to hear the dispute under both the FTA and New Zealand law (at [60]). As such, the Tribunal incorrectly dismissed the application on the basis of no jurisdiction. The decision was set aside and remitted to be heard by a differently constituted Tribunal. | Pfeiffer v Chadwick [2022] NSWCATAP 53 Consumer and Commercial Division - Consumer Claim The Hon. D A Cowdroy AO QC ADCJ, Principal Member; A Suthers, Principal Member
In sum: The Appeal Panel held that terms and conditions of a holiday booking were not enforceable as they were provided after the contract was formed. It also found deceptive and misleading conduct, where the appellant was led to believe that cancellation of the booking would not attract a financial penalty.
Facts: The Appellant (Ms Pfeiffer) made a resort booking through Booking.com. The following day, she cancelled the reservation and was notified that the cancellation fee had been waived, subject to the contract terms. Later that day, the Respondent (Ms Chadwick) sent a text to Ms Pfeiffer indicating she had waived the cancellation fee and invited her to book directly through the resort to reinstate a reservation. Ms Pfeiffer proceeded to make a second booking and payment was made (the second booking). Ms Pfeiffer received a confirmation of the second booking, along with the terms and conditions relating to cancellation. Three days later, Ms Pfeiffer cancelled the second reservation due to uncertainty of her travel arrangements and sought a refund. However, the terms of the second booking stated that no refund was available if the cancellation request was made within 30 days of arrival. The refund was refused. Ms Chadwick attempted to mitigate the loss, by reletting the room for a partial period. Accordingly, she made a partial payment to Ms Pfeiffer for the nights which were successfully rebooked. There was an outstanding $947.10 which was the subject of the claim at the Tribunal.
Held (allowing the appeal):
(i) At first instance, the Tribunal found that the claim was a “consumer claim” for the purposes of s 79E of the Fair Trading Act 1987 (NSW) (FTA). It erroneously held that, even where the Terms and Conditions had been sent after the booking was made, Ms Pfeiffer had accepted the terms as no objection was raised. The Tribunal found that Ms Chadwick suffered a ‘lost opportunity’ as the period to relet the premise was relatively short. Ms Pfeiffer appealed this decision with reference to six potential errors of fact and law.
(ii) The Appeal Panel held that an error of law arises “where a critical issue is not considered in the decision” [28]. On appeal, Ms Pfeiffer argued that the Tribunal ignored her submissions concerning s 47A FTA. This provision requires a supplier to take reasonable steps to ensure a customer has read terms and conditions which could otherwise substantially prejudice them (at [26]). In addressing these submissions, the Appeal Panel held that the Tribunal’s “failure to deal with a claim critical to a contested issue can be regarded as a failure to have regard to a relevant consideration, a failure to have regard to critical evidence or a failure to give adequate reasons” [29]. In this vein, the Appeal Panel held the Tribunal’s “absence of reasons” concerning the operation of s 47A FTA amounted to an error of law.
(iii) The duty of the Appeal Panel was to “objectively” determine the “rights and liabilities” of the parties, as established by the contract (at [31]). It held that in the circumstances, s 47A FTA was applicable. Therefore, if Ms Chadwick were to “rely on the cancellation terms and conditions of the second contract; it was essential that they be brought to the notice of the appellant at the time the binding contract was formed” [34]. Accordingly, Ms Pfeiffer could not have consented to the booking terms without prior notice. The Appeal Panel held, as Ms Chadwick relied on terms which were “much wider” than those associated with the first booking, she was “disentitled” from relying on them without any explanation. Consequently, the cancellation provisions for the second booking were neither part of the contract nor were they enforceable at law (at [34], [39] and [40]).
(iv) The Appeal Panel then considered whether Ms Chadwick’s conduct amounted to deceptive and misleading conduct per s 18(1) Australian Consumer Law NSW (as incorporated into s 4(1) FTA) (at [45]). When assessing a finding of misleading and deceptive conduct, the question of intent is “irrelevant” as it is not a “statutory cause of action” [49]. Therefore, a “causal link” between the “conduct” of Ms Chadwick and the “error” made by Ms Pfeiffer must be established; in essence, whether she was led to believe that no cancellation fee would be applied to the second reservation (at [50]). In failing to draw notice to the fact that “no waiver loss would be given,” it was held that Ms Chadwick engaged in misleading and deceptive conduct. Ms Pfeiffer should have been notified, “especially” as she was invited to “rebook through [Ms Chadwick] personally” [46]. The Appeal Panel held that Ms Pfeiffer “was misled, unwittingly, by the respondent’s conduct into the belief that she could cancel a reservation without penalty or claim for loss” [51]. It was both the “omission” and the “silence” of Ms Chadwick which constituted misleading conduct (at [47]). Consequently, Ms Chadwick was ordered to pay Ms Pfeiffer the balance of the refund from the second booking. | | | Cincotta v Council of the City of Ryde [2022] NSWCATAP 24 Administrative and Equal Opportunity Division Decision of: D Robertson, Senior Member; J Lucy, Senior Member Catchwords: ADMINISTRATIVE LAW — Public access to government information — Request for information concerning complaints against the appellant — Whether disclosure likely to reveal the identity of an informant — Meaning of “informant” — Whether falsity of complaint a factor favouring disclosure WORDS AND PHRASES — Informant | McKeon v Songlake Pty Ltd [2022] NSWCATAP 25 Consumer and Commercial Division – Commercial Decision of: G Furness SC, Senior Member; L Wilson, Senior Member Catchwords: APPEAL-application of COVID-19 Regulations-unconscionable conduct under s62B Retail Leases Act 1994-conflict of interest | Lin v Chung [2022] NSWCATAP 26 Consumer and Commercial Division – Tenancy Decision of: P Durack SC, Senior Member; D Goldstein, Senior Member Catchwords: APPEAL – unsubstantiated application for leave to appeal - no question of principle | Shivanbodhiselvan v Norwest Gateway Pty Ltd [2022] NSWCATAP 27 Consumer and Commercial Division – Home Building Decision of: R C Titterton OAM, Senior Member; E Bishop, Senior Member Catchwords: BULIDING AND CONSTRUCTION – Failure to provide procedural fairness – Anshun estoppel – non question of principle - Leave to appeal – decision not fair and equitable – decision against the weight of the evidence - no question of principle | | Harvey v Beachcomber Drive Pty Ltd [2022] NSWCATAP 29 Consumer and Commercial Division – Tenancy Decision of: R C Titterton OAM, Senior Member; S Thode, Senior Member Catchwords: LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – termination of residential tenancy agreement at end of fixed term – work orders – rental rebates – compensation for non-economic loss – no question of principle | Gaskell v Nazha (No 2) [2022] NSWCATAP 30 Consumer and Commercial Division – Home Building Decision of: K Rosser, Principal Member; G Ellis SC, Senior Member Catchwords: APPEAL - Costs - Appeal confined to a challenge to the costs order made at first instance | Origin Concepts Pty Ltd v Wynne [2022] NSWCATAP 31 Consumer and Commercial Division – Motor Vehicles Decision of: P Durack SC, Senior Member; D Goldstein, Senior Member Catchwords: CONSUMER LAW -sale of used motor vehicle-alleged breach of statutory guarantee of acceptable quality-claim for refund of purchase price. APPEALS - error of law – inadequate reasons. | Sinclair v Camnet Finance Pty Ltd [2022] NSWCATAP 32 Consumer and Commercial Division - Consumer Claim Decision of: G Curtin SC, Senior Member; D Fairlie, Senior Member Catchwords: GUARANTEE AND INDEMNITY — contract of guarantee — formation — execution – no fraud or misrepresentation alleged – guarantor bound even if guarantor did not read guarantee – underlying agreement not a credit contract - National Credit Code inapplicable | ZVQ v ZVR [2022] NSWCATAP 33 Mental Health Review Tribunal Decision of: Armstrong J, President; A Britton, Deputy President Catchwords: APPEALS – designated external appeal – right of appeal from decision of Mental Health Review Tribunal – persons entitled to make external appeal to NSW Civil and Administrative Tribunal – whether external appeal competent | DYH v Public Guardian (No 3) [2022] NSWCATAP 34 Administrative and Equal Opportunity Division Decision of: I R Coleman SC ADCJ, Principal Member; Dr J Lucy, Senior Member Catchwords: COSTS – Whether there are special circumstances warranting an award of costs – Whether appeal was frivolous or vexatious or otherwise misconceived or lacking in substance – Whether appellants’ claims had no tenable basis in fact or law – Relevance of Tribunal’s objects to discretion to award costs | Patterson v A Trip A Deal Pty Ltd [2022] NSWCATAP 35 Consumer and Commercial Division - Consumer Claim Decision of: S Westgarth, Deputy President; G Curtin SC, Senior Member Catchwords: APPEALS — new hearing — inadequacy of reasons – failure to attend to the central aspects of the appellants’ case and the evidence bearing upon it – failure to give reasons for critical findings of fact – possibility of a substantial miscarriage of justice as significant new evidence had arisen which was not reasonably available at the hearing | Lazaris v Kale [2022] NSWCATAP 36 Consumer and Commercial Division – Consumer Claim Decision of: G Curtin SC Senior Member; G Sarginson, Senior Member Catchwords: APPEALS — procedure — proof and evidence — record of tribunal below – no transcript or sound recording of the oral evidence or oral reasons provided – impossibility of determining whether the grounds of appeal had any substance – orders of the tribunal complied with by the appellant before the appeal – no utility in hearing the appeal. | Nanitsos v Nanitsos [2022] NSWCATAP 37 Consumer and Commercial Division – Tenancy Decision of: P Durack SC, Senior Member; D Charles, Senior Member Catchwords: LEASES and TENANCIES- residential tenancy-termination order - nature of agreement between former husband and wife for occupancy of part of wife’s unit. APPEALS—adjournment of hearing refused - extension of time to lodge appeal refused– no merit to appeal – by the appeal the appellant sought documents with a view to establishing that the occupancy agreement was null and void because of misrepresentation | Luo v Campbell [2022] NSWCATAP 38 Consumer and Commercial Division – Tenancy Decision of: S Thode, Senior Member; R C Titterton OAM, Senior Member Catchwords: APPEAL – no error of law – no issue of principle – decision against the weight of the evidence | Express Clearances Pty Ltd v Breakfast Point Realty Pty Ltd [2022] NSWCATAP 39 Consumer and Commercial Division – Consumer Claim Decision of: S Westgarth, Deputy President; G Curtin SC, Senior Member Catchwords: APPEAL- consumer claim against a real estate agent managing residential rental premises – failure to refer to principal for instructions- breach of agreement and of obligation to provide service with due care and skill | Salakis v Silvabuilt Pty Ltd; Silvabuilt Pty Ltd v Salakis [2022] NSWCATAP 40 Consumer and Commercial Division – Home Building Decision of: The Hon F Marks, Principal Member; D Robertson, Senior Member Catchwords: BUILDING AND CONSTRUCTION – Contract – Termination – Repudiation – Whether dispute resolution clause excluded possibility of acceptance of repudiation if requirements not complied with BUILDING AND CONSTRUCTION – Contract – Damages – Damages for loss of profits assessed by reference to contractual clause governing payment in the event of reduction in the scope of work – Whether party seeking damages had led sufficient evidence to establish loss of profits - Whether such evidence is necessary where damages are assessed on the basis of a contractual clause | P8 Auto Ltd t/as European Automotive Ballina v Dolling [2022] NSWCATAP 41 Consumer and Commercial Division – Motor Vehicles Decision of: K Rickards, General Member Catchwords: CONSUMER LAW-supply and installation of replacement motor vehicle engine-statutory guarantees in the Australian Consumer Law (NSW) in respect of supply of goods and supply of services-identification of the problem with the replacement engine and its cause-whether problem with installation-whether buyer’s usage of vehicle made problems worse APPEALS-errors of law-terms of statutory guarantees not applied-inadequate reasons-material- evidence not considered. | | Cumming v Deadman [2022] NSWCATAP 43 Consumer and Commercial Division - Commercial Decision of: G Curtin SC, Senior Member; J Currie, Senior Member Catchwords: ADMINISTRATIVE LAW — particular administrative bodies — NSW Civil and Administrative Tribunal – application for amendment of orders pursuant to s 63 of Civil and Administrative Tribunal Act 2013 – procedural fairness – obligation to afford opposing party the opportunity to be heard – practical injustice – possibility of a different outcome had procedural unfairness not occurred | Watson v Chen [2022] NSWCATAP 44 Consumer and Commercial Division – Tenancy Decision of: G Curtin SC, Senior Member; J Currie, Senior Member Catchwords: LEASES AND TENANCIES — NSW Civil and Administrative Tribunal — jurisdiction and power – jurisdiction to hear dispute between a resident of China and residents of NSW – property in NSW, residential tenancy agreement made in NSW, tenants in NSW - jurisdiction not excluded by decision of the High Court in Burns v Corbett | | Saif v Sharma [2022] NSWCATAP 46 Consumer and Commercial Division – Motor Vehicles Decision of: G Curtin SC, Senior Member; D Fairlie, Senior Member Catchwords: APPEALS — leave to appeal under cl 12 of Sch 4 of the Civil and Administrative Tribunal Act 2013 — significant new evidence that was not reasonably available at the time of the Tribunal hearing – may have suffered a substantial miscarriage of justice – no question of principle | | Chua v The Owners – Strata Plan No 36156 [2022] NSWCATAP 48 Consumer and Commercial Division – Strata Decision of: A Suthers, Principal Member; G Curtin SC, Senior Member Catchwords: LAND LAW — strata title — owners corporation — meetings of owners corporation – order sought under s 24 of the Strata Schemes Management Act invalidating resolution of and election held by owners corporation – time at which the affected party must establish he or she was “adversely affected” within the meaning of that term in s 24 | James v Department of Justice (Corrective Services NSW) [2022] NSWCATAP 49 Administrative and Equal Opportunity Division Decision of: I R Coleman SC ADCJ, Principal Member; D Robertson, Senior Member Catchwords: APPEALS – Findings of fact – Findings based upon acceptance of credit – No basis for setting aside HUMAN RIGHTS — Anti-Discrimination Act 1977 (NSW) — Victimisation – Whether placement of the appellant on a “transitional plan” was “on the ground of” the appellant’s earlier proceedings in the Tribunal | | Rose v Jaensch [2022] NSWCATAP 51 Consumer and Commercial Division – Tenancy Decision of: Cole DCJ, Deputy President; J Lucy, Senior Member Catchwords: LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rights and obligations of landlords and tenants | Dieter v NSW Self Insurance Corporation [2022] NSWCATAP 52 Consumer and Commercial Division – Home Building Decision of: K Rosser, Principal Member; D Ziegler, Senior Member Catchwords: APPEAL – HBCI insurance policy – exclusion – definition of developer – utmost good faith COSTS –special circumstances | Pfeiffer v Chadwick [2022] NSWCATAP 53 Consumer and Commercial Division - Consumer Claim Decision of: The Hon. D A Cowdroy AO QC ADCJ, Principal Member; A Suthers, Principal Member Catchwords: APPEALS – Contract for supply of short term resort accommodation – terms of contract – whether cancellation conditions were incorporated – misleading or deceptive conduct – cancellation provisions unenforceable – contract rescinded | Morris v Webb [2022] NSWCATAP 54 Consumer and Commercial Division – Home Building Decision of: G Curtin SC, Senior Member; J Currie, Senior Member Catchwords: ADMINISTRATIVE LAW — particular administrative bodies — NSW Civil and Administrative Tribunal — procedural fairness — failure to give reasons — adequacy of reasons – no question of principle | | | 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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