NCAT Appeal Panel Decisions Digest Issue 2 of 2024 | The NCAT Appeal Panel Decisions Digest provides monthly keyword summaries of decisions of the NSW Civil and Administrative Tribunal (NCAT) Internal Appeal Panel.
This issue features summaries of the following Appeal Panel decisions handed down in February 2024: | Abraham v The Owners – Strata Plan No 61419 [2024] NSWCATAP 21: An Appeal Panel dismissed an internal appeal as incompetent due to an absence of standing noting that, under s 80(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), only a party to the proceedings at first instance may institute an internal appeal from that decision to the Tribunal’s Appeal Panel. This becomes pertinent where the Tribunal appoints an external manager to a strata scheme who is authorised to exercise, to the exclusion of the owners, all powers of the Owners Corporation under ss 237(1)(a) and 237(2)(a) of the Strata Schemes Management Act 2015 (NSW) (SSMA).
| Commissioner of Police, NSW Police Force v Bonkain [2024] NSWCATAP 15: An Appeal Panel granted leave to appeal and allowed an appeal from a decision of the Tribunal which found that the Commissioner’s summonses were too broad and amounted to a “fishing expedition”. The Appeal Panel held that the summonses were sufficiently limited and that a summons will only be rendered a “fishing expedition” where a party attempts, by way of summons, to find out information of which there is no present knowledge.
| | Each case title is hyperlinked to the full decision available on NSW Caselaw. | | | 1. What steps may the Tribunal consider, including in exercising the power of joinder under s 44(1) of the NCAT Act, to facilitate an internal appeal where a manager is appointed with plenary powers under s 237 SSMA?
Abraham v The Owners – Strata Plan No 61419 [2024] NSWCATAP 21 Consumer and Commercial Division - Strata Scheme Armstrong J, President; A Suthers, Principal Member
In sum: The Supreme Court has described the power to join lot owners who are disaffected by the appointment of a compulsory manager to an appeal, so that they may prosecute it, as ‘sufficiently broad.’ However, before reaching the point of considering whether the power of joinder should be exercised, the Appeal Panel must first consider whether there is a validly instituted appeal on foot.
Facts: On 12 January 2024, NCAT’s Consumer and Commercial Division appointed a strata manager with plenary powers over the relevant strata scheme. That manager is authorised to exercise, to the exclusion of the owners, the powers of the Owners Corporation and Strata Committee under ss 237(1)(a) and 237(2)(a) of the SSMA. On 19 January 2024, a Notice of Appeal setting out to challenge the orders for the appointment of the external strata manager was lodged. This Notice was signed by the appellant (Mr Abraham), who was the Chairman of the Owners Corporation and who had represented the Owners Corporation in the proceedings at first instance but had not been a party himself at first instance. An application for stay had also been lodged by Mr Abraham. Before the Appeal Panel, the strata manager appointed by the Tribunal confirmed it had neither commenced nor ratified the lodgement of the appeal on behalf of the strata scheme. Mr Abraham requested that the Appeal Panel exercise its power of joinder and join Mr Abraham to the appeal so that he may challenge the appointment of the external strata manager on behalf of the Owners Corporation.
Held (correcting the name of the appellant to Mr Abraham; dismissing the appeal as incompetent): (i) Before reaching the point of considering whether the power of joinder should be exercised, the Appeal Panel must first consider whether there is a validly instituted appeal on foot. Mr Abraham acknowledged that he had no authority to lodge the appeal on behalf of the body corporate, due to the exclusionary powers under ss 237(1)(a) and 237(2)(a) of the SSMA, and that he and perhaps other lot owners, wished to institute the appeal in their own names. The Appeal Panel noted that, under s 80(1) of the NCAT Act, only a party to the proceedings at first instance may institute an internal appeal from that decision to the Tribunal’s Appeal Panel (at [1]). Therefore, there was no validly instituted appeal on foot to which parties could be joined as appellants, despite the fact that such a power exists where an appeal has validly commenced (at [20]).
(ii) The appeal must be dismissed as incompetent by way of an absence of standing: see Quader v Nguyen [2023] NSWSC 815 at [24], [27]. [This has been subsequently referred to with approval in Taphouse Investments Pty Limited v Independent Liquor and Gaming Authority [2024] NSWSC 240]
(iii) For completeness, the Appeal Panel also dealt with Mr Abraham’s submission that joining a lot owner to the initial proceedings, prior to the appointment of a manager, would be unjust as it would leave the individual open to cost implications were they unsuccessful. The Appeal Panel pointed to the available avenues set out in The Owners – Strata Plan 2010 v Kahn [2022] NSWCATAP 9.
(iv) In Kahn, the Appeal Panel noted that where lot owners disagree with the appointment of a manager, they may: (1) seek to be joined as a party to the proceedings, thereby preserving a right of appeal; (2) seek to have the Owners Corporation request that the Tribunal carve out functions of instituting and conducting an appeal; (3) seek to have the Tribunal vary the order for a plenary appointment of a manager and to carve out the functions set out in (2); and, (4) seek leave from the Supreme Court to institute an appeal in the name of the Owners Corporation. In addition, the Appeal Panel in Abraham added the possibility of asking the Tribunal to delay the effect of an order appointing a strata manager with plenary powers under s 61 of the NCAT Act for an amount of time sufficient for an appeal to be instituted to which other lot owners may seek to be joined, in the same manner as set out in Keevers v Sarraf Property Group Pty Ltd [2022] NSWSC 1017. Whilst the owner who seeks be joined at first instance may expose themselves to an order for costs, the risk of a costs order would likely be minimal if they then refrain from participating in the hearing, in the manner that might in the courts be described as submitting appearance (at [24]). | 2. What records can be sought by way of summons, and how should they be described so as not to risk being characterised as a “fishing expedition”?
Commissioner of Police, NSW Police Force v Bonkain [2024] NSWCATAP 15 Administrative and Equal Opportunity Division K Ransome, Principal Member; D Goldstein, Senior Member
In sum: The question to be asked is whether the documents sought under the summons have apparent, as distinct from actual, relevance to the case. There needs to exist a reasonable basis for supporting the inclusion of evidence, but a summons will only amount to a “fishing expedition” where a party attempts by way of summons to find out information which might enable the party to advance a case of which there is no present knowledge.
Facts: The Administrative and Equal Opportunity Division of NCAT at first instance set aside two summonses which had been issued at the request of the respondent (Commissioner of Police) in relation to the appellant (Mr Bonkain, a former NSW Police Force employee). The summonses were issued to a psychologist and a psychiatrist seeking “All records held … relating to treatment provided to Mr Aaron Bonkain” from two different dates specific to each of the health professionals. Mr Bonkain had held a firearms licence which was revoked by the Commissioner because, arising from his Post Traumatic Stress Disorder diagnosis, she was not satisfied it was in the public interest for Mr Bonkain to continue to hold the licence. The Tribunal at first instance found that the two summonses were “too broad and amounted to a fishing expedition” in that they sought ‘all records held’. The Commissioner asserted on appeal that this finding involved a mistake as to facts and the Tribunal therefore exercised its discretion in a manner which warrants appellate intervention.
Held (granting leave to appeal; allowing the appeal): (i) The Tribunal’s conclusion that the summonses sought information beyond the subject of Mr Bonkain’s mental health, as it was a general call for documents and therefore captured irrelevant documents, was not reasonably open. The scope of the records sought was sufficiently limited given: the role of the two professionals in treating Mr Bonkain specifically for his PTSD diagnosis; that the summonses were limited by precise date ranges; and that the summonses were limited to records “relating to treatment” (at [25]).
(ii) The question is “not whether the documents would be admissible in evidence or will “definitely advance the case of the parties” issuing the summons”, but rather “whether the documents sought under the summons have apparent, as distinct from actual, relevance to the case” (CPJ v The University of Newcastle [2017] NSWCATAD 350). There needs to exist a “reasonable basis” for supporting the inclusion of evidence (Sharpe v Grobbel [2017] NSWSC 1065 at [35]). This “reflects the notions that the documents relate to, throw light on or are sufficiently relevant to the dispute” (at [30]).
(iii) The fact that a summons could hypothetically capture certain documents which are not of immediate relevance to Mr Bonkain’s mental health, does not warrant characterising the summons as exceedingly broad. That the summonses may possibly capture some records such as invoices which are ultimately irrelevant does not render the summonses illegitimate, particularly as the relevant test is whether the documents sought under the summons have apparent relevance to the case (at [32]).
(iv) In characterising the summonses as a “fishing expedition”, the Tribunal fell into error. A summons would only be considered “fishing” where a party uses a summons to find out information which might enable the party to advance a case of which there is no present knowledge (CPJ at [9]) (at [33]). | 3. Should an expert report be afforded “presumptive weight” where it complies with NCAT’s Procedural Direction 3 – Expert Evidence (PD3)?
Shakiri v Holland [2024] NSWCATAP 28 Consumer and Commercial Division - Home Building G Sarginson, Senior Member; P Molony, Senior Member
In sum: An expert report that complies with NCAT’s PD3 is not automatically, by virtue of its compliance, afforded “presumptive weight”. It is for the Tribunal to afford weight based on an analysis of the report’s content. The rejection of a report being relied on in evidence may be contingent on the presence of unexplained assumptions central to its analysis. The Tribunal is not then obliged to point out the deficits in the expert report, though it may do so.
Facts: The appellant (the homeowners) engaged the respondent (the builder) to complete concreting works at their home. A dispute arose wherein both parties made applications to NCAT – the builder requesting payment for work completed, and the homeowners seeking substantial rectification orders. NCAT at first instance ordered that the homeowners pay the builder $16.638.34 claimed for the concreting works, and that the builder rectify the driveway by filling any gaps and colour sealing the concrete.
The contract between the parties needed to comply with the requirements of s 7 of the HBA because the contract was for an amount exceeding the specified amount of $20,000 (being for $30,936.40) (see cl 5(1)(b) of the Home Building Regulation 2014 (NSW)). Relevantly, s 7 provides that a contract must be in writing, dated and signed by or on behalf of each of the parties to it (at [55]). Section 10(1)(b) of the HBA then provides that where the requirements of s 7 apply and a contract is not in writing nor does it include a sufficient description of the work, the contract will not be enforceable (at [57]). The Tribunal at first instance found that the contract between the parties was not compliant with s 7, but nonetheless made the money order enforcing the contract in the builder’s favour. The enforceability of the contract was at issue on appeal.
Additionally, the homeowners relied on a report prepared by a consulting firm to detail structural issues relating to the concrete works. On appeal, the homeowners alleged the Tribunal failed to take into account a mandatory consideration when it failed to give weight to the report because the report complied with NCAT’s PD3 and, therefore, was entitled to, “presumptive weight”. The homeowners alleged that the Tribunal failing to refer to PD3 in its reasons was an error of law.
Held (allowing the appeal in relation to the money order; ordering that the builder repay $16,638.34 to the homeowners; otherwise dismissing the appeal): (i) The Tribunal at first instance fell into error when it made the money order enforcing the contract in the builder’s favour, when by virtue of s 10(1)(b), the contract was unenforceable because it was unsigned. Relying on Vujica v TNM Roofing Pty Ltd [2022] NSWCATAP 305 at [70]-[76], the Appeal Panel stated: “An unsigned quotation that simply contains a proposed scope of works and a proposed price cannot be a contract in writing for the purpose of s 10(1)(b) of the HBA as it does not set out the terms of the agreement, nor comply with the requirements of s 7 of the HBA” (at [59]). [Note: this case was decided prior to the decision in Dyjecinska v Step-Up Renovations (NSW) Pty Ltd [2024] NSWSC 159. In relation to the point regarding enforceability under s 10 of the HBA, regard should be had to that case which found that a written contract that is accepted, other than by written signature, may still constitute a “contract in writing” for the purposes of s 10(1)(b) of the HBA. Where a contract is undated, unsigned and not given to the homeowner (as required by section 7B of the HBA), this will not necessarily make the contract unenforceable by reason of section 10(1)(c) of the HBA.]
(ii) In relation to the weight afforded to the report, while the report complied with PD3 because the claim was worth more than $30,000 and the expert witnesses complied with the Experts Code of Conduct set out in PD3, there is nothing in PD3 which suggests that a report that complies with PD3 is to be given “presumptive weight”, nor was it necessary that the Tribunal referred to PD3 in its reasons. The weight afforded to a report is “dependent on the Tribunal’s analysis and acceptance of the report’s content” (at [81]). Additionally, the Tribunal is not obliged to point out the deficits it sees in an expert report, but it may do so (at [82]).
(iii) The Appeal Panel stated that “an expert report must, among other things, state the facts on which it is based, including assumed facts as well as observed facts, explain the expert’s understanding of those facts and the issues arising, and provide a reasoned and logical explanation for the conclusions reached, based on that understanding” (at [111]). The report here did not do so as it failed to expose the expert’s reasoning. The Tribunal at first instance observed that the report had unexplained assumptions central to its analysis, for example, in relation to the effect of “soil forces” on the concrete works. The Appeal Panel agreed, reasoning that “the assertion of an assumed fact (such as the operation of soil forces), without any explanation of its genesis or nature, will undermine any conclusions based on it, especially when those conclusions are unexplained” (at [112]).
| | | YGM v YGN [2024] NSWCATAP 14 Guardianship Division Decision of: A Britton, Deputy President; J T Kearney, Senior Member; Dr M Spencer, General Member Catchwords: Tribunal misapplied s 36(4) of the Powers of Attorney Act 2003 (NSW) APPEALS — findings of fact — whether finding that there was no evidence of “any misconduct mismanagement, maladministration or conflict of interests on the part of the attorneys” constitutes a factual error “unreasonably arrived at” APPEALS — whether to grant leave to appeal under s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) | Commissioner of Police, NSW Police Force v Bonkain [2024] NSWCATAP 15 Administrative and Equal Opportunity Division Decision of: K Ransome, Principal Member; D Goldstein, Senior Member Catchwords: APPEAL – summonses to treating medical practitioners to produce documents – whether Tribunal erred in setting aside summonses - whether summonses have legitimate forensic purpose – whether a fishing expedition – mistake as to facts – incorrect application of law | | Selkirk v The Owners - Strata Plan No 2661 [2024] NSWCATAP 17 Consumer and Commercial Division - Strata Scheme Decision of: S Westgarth, Deputy President; G Burton SC, Senior Member Catchwords: REAL PROPERTY – STRATA MANAGEMENT – strict duty of repair – onus of proof on scope and consequences of breach – causation and mitigation – measure and quantification of loss – Strata Schemes Management Act 2015 (NSW) ss 106, 122, 124, 232 | Morrison v Neighbourhood Association DP No 285032 [2024] NSWCATAP 18 Consumer and Commercial Division - Community Living Decision of: P Durack SC, Senior Member; G Ellis SC, Senior Member Catchwords: LAND LAW - community land - statutory obligation of neighbourhood association to maintain and keep in good repair common property under s 109 of the Community Land Management Act 2021 (NSW) (CLMA) - trotting track part of common property not kept in good repair - special resolutions by the association not to maintain and repair trotting track-application by lot owner for orders requiring that repairs be carried out - no challenge to special resolution in terms of s 109(3). APPEALS - various alleged errors raised on appeal-Tribunal examined reasons for the association’s determination not to maintain and repair trotting track and objective facts-whether any error by the Tribunal concerning this approach and dealing with these issues was irrelevant in circumstances where there was no challenge to the validity or operative effect of the special resolution. | Fahda v Ogungbeje [2024] NSWCATAP 19 Consumer and Commercial Division - Residential Tenancy Decision of: D Charles, Senior Member; Dr R Dubler SC, Senior Member Catchwords: LEASES AND TENANCIES – application for reinstatement of matter following dismissal for non-appearance – application dismissed on the ground of failure to provide adequate reason for non-appearance and for application being filed out of time PRACTICE AND PROCEDURE – application for reinstatement under s 55(2) of the Civil and Administrative Tribunal Act 2013 (NSW) – Tribunal declined to extend time under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) APPEAL – whether the decision not to grant an extension of time under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) was in error – appeal dismissed as no error in refusing to grant extension of time was made out | Steelbond Australia Pty Ltd v Wein [2024] NSWCATAP 20 Consumer and Commercial Division - General Decision of: G Blake AM SC, Senior Member; P Durack SC, Senior Member Catchwords: APPEALS — Appeal on question of law – Scope of question of law APPEALS — Leave to appeal — Principles governing – leave to appeal refused APPEALS — Procedural fairness — Whether the adjournment of a hearing or the delay of the commencement of a hearing of which notice had been given where a party is not present at the commencement of the hearing is required
| Abraham v The Owners – Strata Plan No 61419 [2024] NSWCATAP 21 Consumer and Commercial Division - Strata Scheme Decision of: Armstrong J, President; A Suthers, Principal Member Catchwords: APPEALS — right of appeal — who may exercise where Tribunal appoints manager to strata scheme with plenary powers — where lot owner not a party to proceedings at first instance seeks to appeal against decision of Tribunal pursuant to s 80(1) of the Civil and Administrative Tribunal Act 2013 (NSW) –proceedings incompetent due to an absence of standing | Fimmano v Anderson [2024] NSWCATAP 22 Consumer and Commercial Division - Residential Tenancy Decision of: Dr R Dubler SC, Senior Member; L Wilson, Senior Member Catchwords: LEASES AND TENANCIES – retaliatory notice – reasonable state of repair – excessive rent due to withdraw or reduction in goods, services and facilities | Pan v Shanehsazzadeh [2024] NSWCATAP 23 Consumer and Commercial Division - Residential Tenancy Decision of: G Sarginson, Senior Member; P H Molony, Senior Member Catchwords: LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – Notice of rent increase – Whether validly served prior to renewal of lease – Leave to appeal – Significant new evidence not reasonably available – No grounds for leave established
| | | Kozak v Godfrey [2024] NSWCATAP 26 Consumer and Commercial Division - Residential Tenancy Decision of: Coleman SC ADCJ, Principal Member; L Wilson, Senior Member Catchwords: APPEAL- whether appellant demonstrates error on question of law- whether leave to appeal should be granted- whether time to appeal should be extended | FKS v Public Guardian [2024] NSWCATAP 27 Administrative and Equal Opportunity Division Decision of: A Balla, ADCJ, Principal Member; Dr R Dubler SC, Senior Member Catchwords: ADMINISTRATVIE REVIEW – person under guardianship – decision of the Public Guardian that person be accommodated at an aged-care facility was affirmed - not reasonably arguably case of error APPEALS – application to extend time to lodge Notice of Appeal – application refused – insufficient prospects of success of appeal | Shakiri v Holland [2024] NSWCATAP 28 Consumer and Commercial Division - Home Building Decision of: G Sarginson, Senior Member; P Molony, Senior Member Catchwords: APPEALS – internal appeal - significant new evidence not reasonably available -No grounds for leave established – appeal against order enforcing unwritten contract for residential building work to a value exceeding $30,000 allowed – s 7 and s 10 Home Building Act 1989 (NSW) – order on appeal – order for return of monies paid pursuant to order set aside on appeal. EVIDENCE – opinion evidence – consequences of non-compliance with NCAT Procedural Direction 3 – Expert Evidence – affects weight not admissibility - expert report containing bare assertions – given no weight. | Manca v Tullipan Homes Pty Ltd (No 2) [2024] NSWCATAP 29 Consumer and Commercial Division - Home Building Decision of: Balla ADCJ, Principal Member; G Sarginson, Senior Member Catchwords: COSTS — Party/Party — Exceptions to general rule that costs follow the event — Calderbank offers | Mulcair v Callum [2024] NSWCATAP 30 Consumer and Commercial Division - Residential Tenancy Decision of: M Harrowell, Deputy President; C Mulvey, Senior Member Catchwords: LANDLORD AND TENANT – Residential Tenancies Act 2010 (NSW) – reduction or withdrawal of goods, services or facilities – whether failure to repair defects existing at commencement of premises can constitute a relevant withdrawal or reduction – requirements against which reduction or withdrawal are to be judged
| | 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. |
|
|
