| | | | | NCAT Appeal Panel Decisions Digest Issue 3 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 March 2021: - McMillan v Coolah Tourist Park Pty Ltd [2021] NSWCATAP 73 – in which the Appeal Panel found that orders by the Tribunal for the appellant and respondent to enter into a residential site agreement, and varying the terms of their draft agreement, were made without jurisdiction.
- Abdishou v Hardy [2021] NSWCATAP 55 – in which the Appeal Panel made a decision on the papers to dismiss the appeal of the appellant home owner against the respondent who was contracted to construct a fence on the appellant’s property, where the appellant appealed well beyond the time limitations.
- Aboriginal Housing Office v Dennis [2021] NSWCATAP 52 – in which the Appeal Panel found that a claim for compensation can be made pursuant to s 51(1)(d) of the Residential Tenancies Act 2010 (NSW) while the tenancy remains on foot.
- NSW Land and Housing Corporation v McCallum [2021] NSWCATAP 79 – in which the Appeal Panel upheld the decision of the Tribunal below that there existed extraordinary circumstances that warranted the continuation of the tenancy of which the appellant and respondent were landlord and tenant respectively, and found that the Tribunal had applied the correct test in making that finding.
- Gem Ezy Flights Pty Ltd v Gribble [2021] NSWCATAP 76 – in which the Appeal Panel upheld the decision of the Tribunal below that a contractual clause restricting liability for “acts of Government” did not protect the appellant travel agent from repaying the purchase price to the respondent. A European school trip purchased by the respondent was cancelled due the Department of Education suspending all school travel due to the coronavirus pandemic, and the contractual clause was found not to apply because the contract had been frustrated.
Each case title is hyperlinked to the full decision available on NSW Caselaw.
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| Consumer and Commercial Division - Residential Communities A Suthers, Principal Member; Dr J Lucy, Senior Member
In sum: The Appeal Panel found that orders by the Tribunal for the appellant and respondent to enter into a residential site agreement, and varying the terms of their draft agreement, were made without jurisdiction.
Facts: The respondent purchased a caravan park on which the appellants were existing residents. The appellants were shareholders of the previous owner of the site, Coolah Home Base Pty Ltd (Home Base) and through a contract purchased exclusive occupation of the site of their cabin. The two directors of the respondent were also the directors of Home Base. The respondents sought to enter into a residential site agreement under the Residential (Land Lease) Communities Act 2013 (NSW) (RLLC Act), however the appellants asserted that they were not required to do so, and objected to some of the additional terms to the standard form agreement ([7]-[17]).
At first instance, the Tribunal ordered, pursuant to s 27(5) of the RLLC Act, that the parties enter into a standard form agreement, and amended the draft agreement. The appellants appealed on the basis that the Tribunal erred in making this order because the appellants had not applied for an order to enter into a site agreement ([22], [30]).
Held (allowing the appeal and setting aside the orders of the Tribunal):
(i) The appellants’ application to the Tribunal was brought on the basis that they were “home owners” pursuant to ss 156 and 157 of the RLLC Act, as their cabin is a “transportable home”. The respondents had at least constructive knowledge of the contract between the appellants and Home Base, pursuant to which the appellants purchased and owned the cabin, prior to the respondent entering into the contract for sale of the park. The contract of sale did not convey ownership of the cabin to the respondent, which is the property of the appellants ([65]-[67]).
(ii) The Appeal Panel accepted the appellants’ submission that their home was subject to a site agreement, as their agreement with Home Base was an agreement taken to be a site agreement, under cl 5(3) Sch 2 of the now repealed Residential Parks Act 1998 (NSW) (RPA). Home Base, as the former park owner, granted the appellant residents the right to install a relocatable home on a residential site, and a right to use that home as a residence, under a contract between them, in accordance with the definition of a residential tenancy agreement under s 3(1) of the RPA. This was taken to be a site agreement between the appellants and Home Base, by operation of cl 5(3) ([76], [91]-[92]).
Ground 1 – whether the Tribunal erred in making an order under s 27(5) of the RLLC Act
(iii) Contrary to the appellant’s assertion, the Tribunal has no jurisdiction to order the making of changes to a draft site agreement which is not in force. A clause in an unexecuted agreement could not be declared void because it does not have any legal existence or effect. Section 27(5) of the RLLC Act requires an agreement to have been “entered into” before any application to the Tribunal may be made ([112], [114], [116]).
(iv) Further, contrary to the submissions of the respondent, the more general power in s 157(1)(j) to make “an order for anything else necessary or desirable to resolve a dispute” must be read subject to the limitations in the more specific power in s 27(5). As such the Tribunal had no power to determine the parties’ dispute about the proposed terms of the site agreement, or order them to enter into one ([116], [121]).
Ground 2 – whether the Tribunal erred in rejecting the appellants’ claim in relation to clauses of the proposed agreement
(v) In light of the decision regarding ground 1, it was not necessary to consider ground 2 ([125]).
Ground 3 – whether the Tribunal erred in rejecting the appellants’ claim that the respondent engaged in misleading conduct and high pressure tactics
(vi) The Tribunal has power only to make orders between the parties. The appellants sought an order that the respondents cease engaging in high pressure tactics, harassment or harsh or unconscionable conduct in relation to “existing and potential home owners”. As such the Tribunal did not have the power to make this order. The order was also beyond the Tribunal’s jurisdiction because s 157(1) of the RLLC Act authorises the Tribunal only to “make an order that restrains an action in breach of this Act” ([128]-[130]).
(vii) The second part of this ground related to the adequacy of the Tribunal’s reasons. It is disputable whether the Tribunal was obliged to give any reasons, and even if the Tribunal was obliged to give adequate reasons, the appellants did not demonstrate that it failed to comply with that obligation. The Tribunal was required to explain its actual path of reasoning in sufficient detail to enable a court to see whether its opinions involved an error of law. Its failure to deal individually with each of the matters raised by the appellants did not render its reasons inadequate ([131], [135]-[136]).
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| Consumer and Commercial Division - Home Building
Armstrong J, President; D Robertson, Senior Member
In sum: The Appeal Panel made a decision on the papers to dismiss the appeal of the appellant home owner against the respondent who was contracted to construct a fence on the appellant’s property where the appellant appealed well beyond the time limitations.
Facts: The appellant appealed from a decision of the Tribunal which declined to make orders that the respondent “remove, fix and re-install” a fence he constructed for the appellant. The appellant appealed 36 days after the expiry of the period of 28 days after receiving notice of the decision, per r 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NCAT Rules), and as such required an extension of time within which to lodge his appeal ([1], [11], [18]).
Held (refusing the application for an extension of time for the filing of the appeal and dismissing the appeal):
(i) In considering the principles set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22] governing the granting of an extension of time, the Appeal Panel found that the 36 day delay was a substantial delay. The appellant’s reasoning for the delay, that he was seeking legal advice, was not supported by any evidence, and the content of the Notice of Appeal did not suggest that the appellant had received any legal assistance in its preparation ([13], [18]-[20]).
(ii) Although there was no substantial prejudice to the respondent, and he did not suggest that he had sustained any financial detriment through the delay, the Appeal Panel accepted that the process had caused stress to both him and his family ([16], [21]).
(iii) The appellant’s appeal did not have sufficient prospects of success to warrant an extension of time. He needed to establish that, on the balance of probabilities, the work carried out by the respondent was defective in the sense that it was not carried out with due care and skill, or was otherwise carried out in breach of the statutory warranties implied into a contract for residential building work by s 18B of the Home Building Act 1989 (NSW). In the absence of independent expert evidence the Tribunal made no error in dismissing the application on the basis that the appellant had not established his case on the balance of probabilities ([22], [44]-[46]).
(iv) The only potential error of law raised, as per s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), was the appellant’s assertion that the Tribunal failed to accord him procedural fairness. This could have occurred if, as the appellant claimed, the Tribunal member bullied him, if he was not given an adequate opportunity to put his case, or if he was unreasonably denied an adjournment to hold the hearing in person, or unfairly denied an interpreter. There was no evidence that the Tribunal member bullied the appellant, and his English was sufficient. The Tribunal’s extensive experience in conducting phone hearings, and the circumstances of the COVID-19 pandemic meant it could not be said that the appellant was denied procedural fairness merely through not being able to have a face-to-face hearing. The appellant’s failure to put before the Appeal Panel a transcript or recording of the hearing meant the Appeal Panel was unable to assess whether the appellant’s complaints were justified ([36]-[40]).
(v) The appellant alleged he had filed new evidence which would, per cl 12(1) of Sch 4 of the NCAT Act, satisfy the Tribunal that the appellant may have suffered a substantial miscarriage of justice, thus warranting a grant of leave to appeal. However the appellant merely referred to an expert report in his Notice of Appeal, without providing a copy to the Appeal Panel. For these reasons, the appellant’s appeal was dismissed ([26], [33]-[34]).
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| Consumer and Commercial Division - Social Housing
S Westgarth, Deputy President; M Harrowell, Deputy President
In sum: The Appeal Panel found that a claim for compensation can be made pursuant to s 51(1)(d) of the Residential Tenancies Act 2010 (NSW) while the tenancy remains on foot.
Facts: The appellant was a landlord who sought compensation at the Tribunal for the tenant’s breach of various obligations under the Residential Tenancies Act 2010 (NSW) (RT Act). At first instance, the Tribunal found that compensation could not be granted, as no cause of action existed while the tenancy remained on foot. The appellant appealed ([1]-[4], [11]).
Held (allowing the appeal and remitting the issue to the CCD for determination):
(i) The Tribunal misconstrued s 51 of the RT Act, and the appellant has an appeal as of right, pursuant to s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW). The tenant’s obligations set out in s 51(1)(d) are continuing obligations, which apply during the currency of the tenancy and a cause of action arises when breach occurs. Obligations arising on giving vacant possession at the conclusion of a tenancy, such as those contained in ss 51(3) and 51(2), are distinguishable from s 51(1)(d).
(ii) Section 190(1) of the RT Act expressly contemplates, in subs (2), that an application relating to a breach of a residential tenancy agreement can be made during the tenancy agreement.
(iii) The matter was remitted to the Consumer and Commercial Division for hearing and determination.
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| Consumer and Commercial Division - Social Housing
A D Suthers, Principal Member; J S Currie, Senior Member
In sum: The Appeal Panel upheld the decision of the Tribunal below that there existed extraordinary circumstances that warranted the continuation of the tenancy of which the appellant and respondent were landlord and tenant respectively, and found that the Tribunal had applied the correct test in making that finding.
Facts: The respondent was a tenant in residential premises which constituted social housing. The appellant sought termination of the tenancy agreement on the grounds of anti-social behaviour, prohibited by Note 8 of the tenancy agreement. This was because the respondent threw a paint brush at and injured a painting contractor, hired by the landlord appellant. The respondent was convicted of common assault and subjected to a 12 month good behaviour bond. The respondent had no other records of anti-social behaviour contravening Note 8 and had paid rent punctually ([1]-[6]).
The appellant sought a termination order under ss 90 and 91 of the Residential Tenancies Act 2010 (NSW) (RTA), but the Tribunal found that “exceptional circumstances” existed, per s 154D(3)(c), that justified the order not be made. In the alternative, the Tribunal said it would have given the maximum permitted stay or suspension of any possession order under s 154G. The appellant appealed on the basis that the Tribunal applied the wrong test or asked the wrong question in relation to either s 154D(3)(c) or s 154G, and that the finding of exceptional circumstances under either of those provisions was not fair and equitable and was against the weight of the evidence ([7], [10], [12]).
Held (refusing leave to appeal and dismissing the appeal):
(i) The Tribunal did not apply the wrong test or ask the wrong question under ss 154D(3)(c) or 154G in finding that there were “exceptional circumstances” within the meaning of that provision. Although the Tribunal had not been referred to any authority on the meaning of the term “exceptional circumstances” in the context of ss 154D(3)(c) or 154G, the phrase should be, and was, construed according to its ordinary meaning. Any failure by the Tribunal to expose what it understood the phrase to mean does not mean the Tribunal failed to apply the ordinary meaning and thereby erred on a question of law ([43], [47]).
(ii) In determining whether or not exceptional circumstances exist, the rationale of the particular statutory provision must be taken into account, as must the facts of the individual case. The facts constituted circumstances which, while not unique, unprecedented or very rare, were out of the ordinary course or unusual and were, at least when considered collectively, not circumstances that are regularly, routinely or normally encountered. It was reasonably open to the Tribunal to hold that the facts of the case, at least when viewed collectively, fell within the phrase “exceptional circumstances” ([29]-[32], [43], [47]).
(iii) The Tribunal found that several circumstances warranted a finding of exceptional circumstances, including: that the respondent’s criminal record indicated no offences between 1999 and the offence arising from the incident; that there had been no other “behaviour incidents” during the tenancy for over five years; rent had been paid on time; and medical records indicated the respondent had “some form of behavioural condition” for which he was taking medication. The Tribunal found that the incident appeared to be an isolated one, and that the good behaviour bond itself provided a form of protection against any future anti-social behaviour ([34]).
(iv) Whether the relevant facts presented to the Tribunal reasonably admitted of different conclusions as to whether they constituted “exceptional circumstances” is a question of law, and is answered in the affirmative. Further, the facts adequately justified the Tribunal’s findings. There was nothing put before the Appeal Panel to indicate that the Tribunal’s analysis of the meaning of the term “exceptional circumstances” within the relevant provisions was anything but fair ([40]-[41], [50], [52]).
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| Consumer and Commercial Division - Consumer Claim G Blake AM SC, Senior Member; AR Boxall, Senior Member
In sum: The Appeal Panel upheld the decision of the Tribunal below that a contractual clause restricting liability for “acts of Government” did not protect the appellant travel agent from repaying the purchase price of a travel package to the respondent. The European school trip purchased by the respondent was cancelled due the Department of Education suspending all school travel due to the coronavirus pandemic, and the contractual clause was found not to apply because the contract had been frustrated.
Facts: The respondent entered into a contract with the appellant to supply her daughter with a tour package for a school trip to France and Italy in April 2020. Between November 2019 and late January 2020, the respondent paid the appellant $5,665. Condition 5 of the contract provided that the appellant would not be liable for “acts of Government or other authorities”, among other circumstances. The appellant refunded $3,617.50 to the respondent, and the respondent commenced proceedings at the Tribunal seeking refund of the remainder. At first instance the Tribunal found that the contract was frustrated by reason of government interventions directed at restricting travel, in response to the COVID-19 pandemic, pursuant to s 12 of the Frustrated Contracts Act 1987 (NSW) (FC Act), and ordered the appellant to pay the respondent the remainder of the refund. The appellant appealed ([6]-[11]).
Held (dismissing the appeal):
(i) There was no evidence to suggest that the relationship between the parties was anything other than one in which the appellant promised to supply a particular travel package; these circumstances give rise to a more complex relationship than that of agent and customer, seen in analogous cases at the Tribunal due to the coronavirus pandemic: e.g. Flight Centre Travel Group t/a Aunt Betty v Goel [2021] NSWCATAP 44; Great Wall Travel Services Pty Ltd v Lai [2021] NSWCATAP 64 ([16]).
(ii) There was no evidence before the Appeal Panel as to the terms, nature or effect of the action of the Department of Education in suspending all school travel which, the appellant submitted, was the occurrence which resulted in the cancellation of the trip. However, the Appeal Panel was nevertheless satisfied that the effect of the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020 (Cth) was to frustrate the contract. There was nothing to challenge the assumption that the proper law of the contract was that of New South Wales, and the FC Act applied ([17]-[18]).
(iii) The consequence of frustration was to engage ss 12 and 13 of the FC Act, which provide for, respectively, the return of money paid and adjustment for certain losses and gains. Although s 13 would enable the appellant to retain half the money it had outlaid in order to procure services, such as flights, accommodation and excursions, there was no evidence before the Appeal Panel that any such expenses had been incurred. The case was thus distinguishable from Ryan v Gem Ezy Flights Pty Ltd [2020] NSWCATCD, in which the respondent had “done work and suffered loss and therefore may be entitled to some compensation” under s 13 of the FC Act, whereas no evidence was provided in the present circumstances to support any such claim ([19]-[21], [24]).
(iv) The appellant’s suggestion that cl 5 acts as an agreement between the parties that the FC Act does not apply, as per s 6(1)(e), was rejected. Clause 5 was an exclusion clause to which the contra proferentem rule must be applied in accordance with normal principles of contractual interpretation. This means that, in the absence of a contractual provision which clearly and unambiguously excludes the FC Act from applying to the contract, the appellant’s proposition could not be accepted.
(v) The appellant also alleged it was not given a fair hearing, but, in failing to provide a transcript of the proceedings to the Appeal Panel, failed to give sufficient evidence. The appeal was therefore dismissed ([23]-[24]).
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| | | Consumer and Commercial Division - Home Building
Decision of: T Simon, Principal Member; G Burton SC, Senior Member
Catchwords: HOME BUILDING – work order, time to pay money.
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| Guardianship Division
Decision of: M Harrowell, Deputy President; A Lo Surdo SC, Senior Member
Catchwords: PRACTICE AND PROCEDURE – Dismissal for want of prosecution – Leave to appeal an interlocutory decision – No prospects of success
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| Consumer and Commercial Division - Commercial
Decision of: M Harrowell, Deputy President; J Lonsdale, Senior Member
Catchwords: COSTS - Application of rr 38 and 38A of the Civil and Administrative Tribunal Act 2013 (NSW) – No special circumstances
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| Consumer and Commercial Division - Consumer Claim
Decision of: P Durack SC, Senior Member; G Curtin SC, Senior Member
Catchwords: COSTS – special circumstances warranting an award of costs – special circumstances not established.
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| Consumer and Commercial Division - Strata
Decision of: Dr R Dubler SC, Senior Member; J Lucy, Senior Member
Catchwords: COSTS – general rule that costs follow the event – appeal abandoned in light of recent New South Wales Court of Appeal authority – costs should follow the event following abandonment of appeal
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| Consumer and Commercial Division - Home Building
Decision of: M Harrowell, Deputy President; G Curtin SC, Senior Member
Catchwords: BUILDING AND CONSTRUCTION - Home Building Act 1989 (NSW) - statutory warranty - proceedings for breach – relevance of contract – identification of contract to perform residential building work – relevance to statutory warranties
APPEALS - procedural fairness - failure to give reasons - adequacy of reasons – evidence not referred to – whether evidence important or critical to resolving the particular issue – whether an inference could be drawn that the evidence was overlooked
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| Consumer and Commercial Division - Social Housing
Decision of: S Westgarth, Deputy President; M Harrowell, Deputy President
Catchwords: RESIDENTIAL TENANCY-whether a claim for compensation can be made before the end of the tenancy
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| Consumer and Commercial Division - Motor Vehicles
Decision of: G Curtin SC, Senior Member; G Sarginson, Senior Member
Catchwords: CIVIL PROCEDURE – stay of part of an order to pay money – certificate subsequently erroneously issued under s 78 of the Civil and Administrative Tribunal Act for the whole of the money ordered to be paid – first respondent files certificate in Local Court – first respondent overpaid - certificate set aside – restitution ordered
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| Guardianship Division
Decision of: A Suthers, Principal Member; J D’Arcy, Senior Member; M Oxenham, General Member
Catchwords: APPEAL – Guardianship – costs – whether “special circumstances warranting an award of costs” within the meaning of s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) established – exercise of discretion
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| Consumer and Commercial Division - Home Building
Decision of: Armstrong J, President; D Robertson, Senior Member
Catchwords: APPEALS - Extension of time refused - Principles as to extension of time - Procedural fairness - No error of law - No ground on which leave to appeal should be granted
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| Consumer and Commercial Division - Home Building
Decision of: K Rosser, Principal Member; D Robertson, Senior Member
Catchwords: BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Statutory warranty – Plans and specifications – Whether specifications included oral instructions – Defences – section 18F – Whether contract drawings constitute an “instruction given in writing” for the purposes of s 18F
COSTS – Relevant considerations
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| Administrative and Equal Opportunity Division
Decision of: L Pearson, Principal Member; J Lucy, Senior Member
Catchwords: APPEAL – interlocutory decision – summonses – application to set aside - dispensing with a hearing - whether leave to appeal should be granted – dealing with appeal by way of new hearing – whether summonses lack legitimate forensic purpose
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| Consumer and Commercial Division - Tenancy
Decision of: G Blake AM SC, Senior Member; Dr J Lucy, Senior Member
Catchwords: APPEAL – Civil and Administrative Tribunal – Appeal by landlord against order that he pay tenant $1,825.29 in overpaid rent - Appeal lodged out of time – Where delay short but prospects of success minimal – Extension of time refused
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| Consumer and Commercial Division - Tenancy
Decision of: The Hon F Marks, Principal Member; P Molony, Senior Member
Catchwords: APPEALS – held Member failed to give adequate reasons for decision – appeal upheld – matter remitted for rehearing
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| Administrative and Equal Opportunity Division
Decision of: A Suthers, Principal Member
Catchwords: APPEAL – Application for a Stay – costs – whether “special circumstances warranting an award of costs” within the meaning of s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) established – exercise of discretion
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| Consumer and Commercial Division - Consumer Claim
Decision of: R C Titterton OAM, Senior Member; Dr J Lucy, Senior Member
Catchwords: CONSUMER CLAIM – application for an extension of time in which to bring an appeal – application refused – no question of principle
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| Administrative and Equal Opportunity Division
Decision of: L Pearson, Principal Member; S Goodman SC, Senior Member
Catchwords: APPEAL – administrative review – firearms licence – child sexual assault charges withdrawn – finding that conduct occurred – whether applicant fit and proper person– public interest
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| Consumer and Commercial Division - Consumer Claim
Decision of: AD Suthers, Principal Member; AR Boxall, Senior Member
Catchwords: APPEAL – consumer claim – travel cancelled during COVID 19 pandemic – nature of relationship of travel agent with customer – error of law
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| Consumer and Commercial Division - Tenancy
Decision of: The Hon F Marks, Principal Member; D Robertson, Senior Member
Catchwords: APPEAL - appeal on grounds that decision was against the weight of the evidence and not fair and equitable – held weight of the evidence justified the decision and decision not demonstrated to be not fair and equitable – appeal dismissed
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| Administrative and Equal Opportunity Division
Decision of: Cole DCJ, Deputy President; J Lonsdale, Senior Member
Catchwords: COSTS – special circumstances - guiding principle
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| Consumer and Commercial Division - Strata
Decision of: The Hon F Marks, Principal Member; K Ransome, Senior Member
Catchwords: COSTS – appeals – held appeal proceedings were without merit and endeavoured to re-agitate and relitigate matters previously decided adversely to the appellants – held constituted “special circumstances” justifying the making of a costs order.
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| Consumer and Commercial Division - Home Building
Decision of: G K Burton SC, Senior Member
Catchwords: HOME BUILDING - whether costs order appropriate on consent transfer to Supreme Court - costs on appeal against primary costs order where a different order is made but not substantially that sought by appellant
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| Guardianship Division
Decision of: A D Suthers, Principal Member; J D’Arcy, Senior Member; M A Oxenham, General Member
Catchwords: APPEAL – Guardianship – whether decision as to who the Tribunal appointed as guardian manifestly unreasonable
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| Consumer and Commercial Division - Home Building
Decision of: T Simon, Principal Member; S Frost, Senior Member
Catchwords: COSTS---Rule 38A Civil and Administrative Tribunal Rules 2014---Amount claimed or in dispute in appeal proceedings---Whether special circumstances must be established
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| Consumer and Commercial Division - Home Building
Decision of: S Westgarth, Deputy President; J Kearney, Senior Member
Catchwords: APPEAL – from finding of fact – whether against weight of evidence – whether substantial miscarriage of justice
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| Consumer and Commercial Division - Motor Vehicles
Decision of: K Ransome, Senior Member; R Titterton, Senior Member
Catchwords: APPEAL – consumer claim – decision said to be not fair and equitable and against the weight of the evidence – proper respondent to Tribunal proceedings – quantum of damages - no substantial miscarriage of justice – leave to appeal refused
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| Consumer and Commercial Division - Residential Communities
Decision of: A Suthers, Principal Member; Dr J Lucy, Senior Member
Catchwords: APPEALS – Where appellants applied to have declared void terms of proposed residential site agreement – Where Tribunal directed caravan park owner to enter into agreement with residents without certain terms - Whether Tribunal has jurisdiction to make orders in respect of a draft residential site agreement – Whether appellants were “home owners” who were entitled to apply to Tribunal – Whether Tribunal had jurisdiction to hear application - Where appellants applied for an order restraining the respondent from engaging in certain conduct in alleged breach of the rules of conduct for operators – Whether Tribunal erred in refusing to make the order sought
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| Consumer and Commercial Division - Tenancy
Decision of: P Durack SC, Senior Member; L Wilson, Senior Member
Catchwords: CIVIL PROCEDURE-application to set aside decision made in the absence of a party-discretionary refusal to set aside-arguable defence not shown - other procedural criticisms concerning the original decision
APPEALS-limited circumstances in which an appeal from a discretionary decision will be allowed-whether the Tribunal applied the correct principles-no appealable error established.
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| | Wang v MacDermott [2021] NSWCATAP 75 Consumer and Commercial Division - Strata
Decision of: A Suthers, Principal Member; M Gracie, Senior Member
Catchwords: APPEAL — NCAT— leave to appeal from interlocutory decision of Consumer and Commercial Division - question of law - leave to appeal
STRATA SCHEMES - interlocutory question - application under s 238 Strata Schemes Management Act 2015 - whether "interested person" under s 226 Strata Schemes Management Act 2015 - meaning of "lawful occupier" - application by executor prior to grant of probate - whether an "estate or interest" in a lot
PRACTICE AND PROCEDURE - orders outside scope of interlocutory question - final orders dismissing parts of Application - orders quashed
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| Consumer and Commercial Division - Consumer Claim
Decision of: G Blake AM SC, Senior Member; AR Boxall, Senior Member
Catchwords: APPEAL – consumer claim – international tour cancelled during COVID-19 pandemic – whether contract frustrated – consequences of frustration of the contract - error of law
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| Consumer and Commercial Division - Home Building
Decision of: A Suthers, Principal Member; A Bell SC, Senior Member
Catchwords: COSTS- costs on appeal- appeal withdrawn- whether fixed sum costs order should be made.
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| Consumer and Commercial Division - Tenancy
Decision of: G Curtin SC, Senior Member; J McAteer, Senior Member
Catchwords: LEASES AND TENANCIES – default and termination – legislation protecting tenants – covid-19 pandemic protections – whether a tenant was an impacted tenant at the time of the termination notice and commencement of proceedings
APPEALS – from findings of fact – adequacy of reasons – allowance for unhappy phrasing of the Tribunal's thoughts or a written slip – failure to comply with directions to provide evidence and transcript which may throw light on adequacy of reasons
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| Consumer and Commercial Division - Social Housing
Decision of: A D Suthers, Principal Member; J S Currie, Senior Member
Catchwords: APPEALS – residential tenancy – whether error of law in Tribunal’s application of Residential Tenancies Act 2010 (NSW), ss 154D(3) and 154D – meaning of “exceptional circumstances” – no error of law –conclusion of Tribunal below that exceptional circumstances existed not unfair or inequitable.
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| Consumer and Commercial Division - Home Building
Decision of: M Harrowell, Deputy President; A Lo Surdo SC, Senior Member
Catchwords: CONTRACT LAW – Claim for breach of contract to carry out floor repairs – formation of contract and terms – no breach established
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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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