NCAT Appeal Panel Decisions Digest Issue 3 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 March 2022:
Latimer v Latimer [2022] NSWCATAP 94: An agreement, where one party lacked mental capacity, was set aside. The Appeal Panel held that it was neither legally binding nor governed by the Residential Tenancies Act 2010. John McDonald Building Services Pty Ltd v Gusa [2022] NSWCATAP 60: In this case, a claim for damages under the Australian Consumer Law could not exceed the jurisdictional monetary limit, being $40,000, even where the claim arises amidst a building dispute governed by the Home Building Act 1989.
Each case title is hyperlinked to the full decision available on NSW Caselaw. |
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Latimer v Latimer [2022] NSWCATAP 94 Consumer and Commercial Division - Tenancy S Westgarth, Deputy President; L Wilson, Senior Member
In sum: The Appeal Panel made a declaration under s 11 Residential Tenancies Act 2010 (NSW) that an agreement made between a mother and her son was not a residential tenancy agreement. The agreement had no binding legal effect as the mother lacked the requisite mental capacity to either grant a licence to occupy or confer any legal rights.
Facts: An agreement was reached between an elderly mother with dementia and her son (“the agreement”). This allowed for the son to rent one bedroom in her premises for $100 per month, or in lieu of rent, provide care to the elderly mother at a rate of $10 per hour. The appellants (who were appointed as enduring power of attorney for the mother) issued a termination notice to the son under s 109, Residential Tenancies Act 2010 (RTA). This section enables a termination notice to be issued where a premise has become “wholly uninhabitable” by conduct which is not a breach of an express term. The appellants argued that the agreement presented “hardship” to the mother as; the son failed to pay rent for a period of 18 months, he used the property beyond the scope of the agreement, he failed to provide adequate care to the mother, the mother had to be moved from the residence and the mother was denied a stream of rental income which could have funded professional care. The son commenced proceedings in the Tribunal, arguing his agreement was in accord with s 9 RTA (which provides a licence to occupy a premise “in return” for carrying out work on the property, or in connection to the person’s employment) and the termination notice “had no effect” as it was “retaliatory” in nature (per s 115 RTA). The appellants sought a cross-claim declaring that the agreement was not a residential tenancy agreement per s 11 RTA. At first instance, the Tribunal found that the son was providing care, and the agreement was in accord with s 9 RTA and hardship could not be demonstrated as the mother had been removed from the premises.
Held (allowing the appeal):
(i) The appellants raised six grounds of appeal, however, as the Appeal Panel found that “the reasoning of the Tribunal was both inadequate and internally inconsistent”, there was no need to examine the remaining five grounds. It held that the Tribunal made contradictory factual findings. It observed that it was “difficult” to understand how the mother’s “lack of capacity” prevented her from granting a “licence to occupy” the premise but this same mental incapacity did not prevent her from forming a legally binding tenancy agreement with the son. Further, it had not been explained why evidence concerning the mother’s incapacity was “disregarded.” The Appeal Panel held that ultimately, the mother lacked the “requisite level of mental capacity” to enter into any legal agreement and there was “inadequate justification” for finding the agreement was either “binding” or regulated by the RTA (at [29], [30], [32]).
(ii) The Tribunal did not address whether the agreement was made pursuant to s 9 RTA, but tended to accept it on face value. The agreement stipulated; the son was to provide 10 hours of care per month to recoup his rent payment of rent and additional care was to be supplemented by other non-residential family members. Despite the agreement, the mother was ultimately removed from the premises, so she could receive more appropriate and higher levels of care. The Appeal Panel held that s 9 did not apply. Absent from this agreement was any employment contract or evidence of property maintenance. It was held that the agreement relied on by the son was merely “an arrangement between family members having no legal effect”. Following the mother’s change of residence, the son failed to recognise the mother’s “right to occupy” her own property and his duties of care had ceased in their entirety. The Appeal Panel held that it had “sufficient evidence” to make a declaration under s 11 RTA, that the agreement was not a residential tenancy agreement for the purposes of the RTA. The orders made on first instance were set aside (at [35], [39], [41], [40], [45]). |
John McDonald Building Services Pty Ltd v Gusa [2022] NSWCATAP 60 Consumer and Commercial Division - Home Building Coleman SC ADCJ, Principal Member; J Currie, Senior Member
In sum: In circumstances where a breach of the Australian Consumer Law (ACL) arose from a building dispute governed by the Home Building Act 1989, the award of damages was still constrained by the monetary limits of the ACL in this case. The Appeal Panel set aside an award of damages which exceeded the jurisdictional limit of the ACL. It held there was no statutory inconsistency between the two legislative schemes, as each Act had a different legislative object and purpose.
Facts: The respondents (the homeowners) entered into a contract with the appellants (the builder) to construct a home. On 7 June 2017, the homeowners received an email from the builder, terminating the contract on the basis of a “substantial breach” in failing to pay the required invoices by the due date. It was requested that the homebuilders sign a statutory declaration indicating that “no deposit or money had been paid.” On 8 June 2017, the homeowners sent a letter from the bank, which verified the bank loan had been approved and the monies would be paid. On 9 June 2017, the builder made oral representations which indicated to the homeowners, that should they wish to proceed with the contract at the same price that amendments must be made (including a reduction of services to the value of $25,150), or the contract would be terminated. As the homeowners had paid a non-refundable deposit of $22,350, they elected to continue the contract with the reduction in services. The Tribunal found that the representations amounted to misleading and deceptive conduct pursuant to s 18 Australian Consumer Law (ACL), the material misrepresentation being the entitlement to terminate the contract unless the variations were made. This was the only reason the homeowners agreed to the amendments in the building contract. It further held that it had jurisdiction under the Home Building Act 1989 (HBA) with respect to defects and awarding damages in excess of $40,000 (the jurisdictional monetary limit under the ACL). The builder appealed the decision on six grounds; the fourth ground (being the jurisdictional issue concerning the award of damages) was upheld on appeal. The decision was remitted back to a differently constituted Tribunal.
Held (allowing the appeal):
(i) The Appeal Panel did not consider that the homeowner’s claim had failed, just that the award of damages had exceeded the scope of the monetary jurisdiction. At the “crux” of the fourth ground of appeal, was the erroneous finding of the Tribunal that it had the jurisdiction to award damages in excess of $40,000 in this case. The Tribunal relied on the cases of Jenkinson v Chaw [2015] NSWCATAP 127 (Jenkinson) and Singh v Verdi Group Pty Limited [2017] NSWCATCD 94 (Signh) which stated there was precedent for damages to “exceed the limit” of $40,000 in building consumer claims where the ACL was breached. The Tribunal also found that if a breach of the ACL arose “in connection with another matter” in the Tribunal, then it is empowered to make either an award of damages or an ancillary order “as it thinks fit,” pursuant to s 74(3) Fair Trading Act 1987 (FTA). From this, the power to award damages in excess of the statutory limit in the ACL was inferred. However, the Appeal Panel held that these authorities only “engage[d] with the conferral of jurisdiction, rather than any limits upon it” (at [133], [134], [135], [141], [142], [143], [147]).
(ii) The Appeal Panel found it “difficult to accept” that a claim for damages made solely pursuant to the ACL which merely arose from a building dispute could, as a consequence, increase the monetary jurisdictional limit applicable under the ACL from $40,000 to the HBA limit of $500,000. It held; the authorities of Jenkinson and Singh were silent on the key issue and did not “engage with any controversy with respect to monetary jurisdictional limits.” The authorities were therefore considered “irrelevant” in deciding an amount of damages. As there was no clear statutory provision “which directly” assisted in resolving the issue, statutory interpretation was required. It was held that, despite the difference in the monetary limit, there was no inconsistency between the statutory schemes: the HBA and the FTA had “different objects and different purposes.” Whilst the claim arose from a building dispute, the claim for damages was made pursuant to a breach of the ACL, therefore the claim was “constrained” by the $40,000 jurisdictional limit (at [149] [151], [162], [163], [164] and [169]). |
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Gho v Niew [2022] NSWCATAP 56 Consumer and Commercial Division – Tenancy Decision of: G Curtin SC, Senior Member; D Fairlie, Senior Member Catchwords: LEASES AND TENANCIES – default and termination – abandonment of premises – break fee – applicable legislation was that in force at the time the lease was entered into not as in force at the date of the hearing APPEALS – point not taken below – conduct of hearing – point not permitted to be taken now as the new point could possibly have been met by calling evidence at the hearing or the respondent might have conducted the case differently at hearing |
ZVN v ZVO [2022] NSWCATAP 57 Guardianship Division Decision of: C P Fougere, Principal Member; J S Currie, Senior Member; J Le Breton, General Member (Community) Catchwords: APPEAL – Guardianship Division – review of Division’s decision as to identity of guardian – appellant found to be unsuitable – whether tests of suitability misapplied – procedural fairness – adequacy of reasons for decision – no error of law – appeal dismissed – no grounds for grant of leave to appeal – leave refused. PROCEDURE – Appeal from Guardianship Division – obligation to assist unrepresented appellant in ascertaining or formulating grounds for appeal. |
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Mae v STM123 No.11 Pty Ltd [2022] NSWCATAP 61 Consumer and Commercial Division – Tenancy Decision of: S Thode, Senior Member; A Boxall, Senior Member Catchwords: RESIDENTIAL TENANCY – appeal against order for termination and possession of premises - warrant executed – utility of hearing the appeal – notice of termination retaliatory - decision not fair and equitable |
Chadwick v NSW Land and Housing Corporation [2022] NSWCATAP 62 Consumer and Commercial Division – Social Housing Decision of: P Durack SC, Senior Member; Dr J Lucy, Senior Member Catchwords: LEASES and TENANCIES-social housing tenancy-orders for payments in arrears and specific performance orders for payments-old decision of Consumer Trader and Tenancy Tribunal no longer in existence-subsequent decisions by NCAT in 2018 and 2019 APPEAL – lengthy delays in lodging appeal-application for an extension of time in which to lodge appeal-inadequate explanation for delay-weak or no prospects of success to obtain necessary grant of leave to appeal-no appeal right from Consumer Trader and Tenancy Tribunal-interests in finality of litigation-interests of justice do not warrant extension of time |
Snape v Commissioner of Police [2022] NSWCATAP 63 Administrative and Equal Opportunity Division Decision of: S Westgarth, Deputy President; P H Molony, Senior Member Catchwords: APPEAL - Freedom of Information – Government Information (Public Access Act) 2009 – effect of disclosure of information under Government Information (Public Access Act) 2009 – for information to be revealed it must be publicly disclosed – no error in Tribunal considering factual material at time of hearing – effect of s 63 of Administrative Decisions Act 1997 |
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Park v Tasman Tourism Pty Ltd [2022] NSWCATAP 65 Consumer and Commercial Division – Residential Communities Decision of: C Fougere, Principal Member; G Curtin SC, Senior Member Catchwords: LEASES AND TENANCIES — legislation protecting tenants — Residential Parks Act 2002 (repealed) - Residential (Land Lease) Communities Act 2013 – alleged binding oral agreement for permanent residency – factual finding that no binding oral agreement – no error in that factual finding - no question of principle |
Chen v Austral Built Pty Ltd [2022] NSWCATAP 67 Consumer & Commercial Division – Home Building Decision of: The Hon D A Cowdroy, AO QC, Principal Member; D Charles, Senior Member Catchwords: APPEAL – error of law – scope of works in contract for residential building work – obligation of builder to provide sewer service diagram – work and services order made |
Danis v Commissioner of Police [2022] NSWCATAP 68 Administrative and Equal Opportunity Division Decision of: Dr R Dubler SC, Senior Member; G Furness SC, Senior Member Catchwords: APPEAL – whether evidence was overlooked – whether reasons were inadequate or insufficient –whether error in fact finding - whether the Tribunal was biased |
Elsayed v Tassone [2022] NSWCATAP 69 Consumer and Commercial Division – Tenancy Decision of: R C Titterton OAM, Senior Member; G Ellis SC, Senior Member Catchwords: APPEALS - errors other than errors of law– no question of principle |
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ZVS v ZVT [2022] NSWCATAP 71 Guardianship Division Decision of: J S Currie, Senior Member; J D’Arcy, Senior Member; S Taylor, Senior Member Catchwords: APPEALS – Civil and Administrative Tribunal (NSW) – appeal from Guardianship Division GUARDIANSHIP – POWERS OF ATTORNEY-review of appointment of enduring guardians and of enduring power of attorney- guardianship order and order for removal from office of one of two attorneys made. Asserted errors of law- denial of procedural fairness- inadequate reasons for decision – failure to take into account mandatory consideration. Errors of law established – appeal allowed PROCEDURE – APPEALS- Civil and Administrative Tribunal (NSW) Appeal Panel – appeal from Guardianship Division – obligation of Appeal Panel to assist unrepresented appellant in formulation of their case PROCEDURE- Representation-McKenzie Friend- right to legal representation in Guardianship Division proceedings-party’s right to access to and consultation with their lawyer- role of McKenzie Friend. Where Tribunal permitted hearing to continue and made findings against party notwithstanding that her access to McKenzie Friend had been impeded as the result of Tribunal’s procedural direction |
Cessnock City Council v EMF [2022] NSWCATAP 72 Administrative and Equal Opportunity Division Decision of: D Robertson, Senior Member; Emeritus Prof G Walker, Senior Member Catchwords: ADMINISTRATIVE LAW – Privacy – Privacy and Personal Information Protection Act 1998 (NSW) – Information Protection Principles – IPP 10 Limits on use of personal information – Local Government Act 1993 (NSW) s 440AA – Obligation of Local Council to comply with Code of Conduct Procedures – Whether reference in Code of Conduct Procedures to “routine complaints management processes” required Council’s General Manager to refer complaint addressed to General Manager and marked “Confidential – Attention of Addressee Only” to Council’s Public Officer |
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Estate of Bovaird v Milstern Retirement Services Pty Ltd [2022] NSWCATAP 75 Consumer and Commercial Division – Retirement Villages Decision of: S Westgarth, Deputy President; M Harrowell, Deputy President Catchwords: APPEAL - contract and lease under Retirement Villages Act- claim for proceeds of sale in reduction of recurrent charges- application out of time-whether time to be extended-whether a lessee had rights notwithstanding she never occupied the premises- whether lessee a Qualified Person-meaning of former occupant and of permanently vacated- calculation of recurrent charges |
Choi v Khan [2022] NSWCATAP 76 Consumer and Commercial Division – Tenancy Decision of: G Sarginson, Senior Member; D Ziegler, Senior Member Catchwords: LEASES AND TENANCIES - bond claim - break fee – APPEALS – party bound by case ran at first instance - whether decision against the weight of evidence |
Benoit De Tarle v The Owners Corporation Strata Plan 576 [2022] NSWCATAP 77 Consumer and Commercial Division - Strata Decision of: I Coleman SC ADCJ, Principal Member; D Fairlie, Senior Member Catchwords: STRATA TITLES- access to CCTV footage - application of s 180 and 182 of the Strata Schemes Management Act 2015 - jurisdiction of the Appeal Panel to give an advisory opinion or grant declaratory relief |
Leone v Captain Green Solar Pty Ltd [2022] NSWCATAP 78 Consumer and Commercial Division – Home Building Decision of: R C Titterton OAM, Senior Member; D Goldstein, Senior Member Catchwords: PRACTICE AND PROCEDURE - procedural fairness — failure to give reasons — adequacy of reasons |
ZUZ v ZVA [2022] NSWCATAP 79 Guardianship Division Decision of: C P Fougere, Principal Member; D Charles, Senior Member; M Oxenham, General Member Catchwords: APPEAL – Guardianship Division – review of operation and effect of enduring power of attorney - whether 66G Conveyancing Act 1919 (NSW) misapplied – whether Attorney denied procedural fairness as a result of bias – leave to appeal sought on other grounds - whether Tribunal made factual errors of such significance that would be unjust to allow finding of breach of fiduciary duty to stand – leave refused – appeal dismissed |
The Owners – Strata Plan No 62713 v Liberant [2022] NSWCATAP 80 Consumer and Commercial Division - Strata Decision of: M Harrowell, Deputy President; G Curtin SC, Senior Member Catchwords: LAND LAW – Strata titles – Strata Schemes Management Act – breach of duty to repair and maintain common property – claim for damages – time to commence proceedings – first aware of the loss suffered – levy of owners in respect of damages award and costs payable to successful lot owner by an unsuccessful owners corporation – power of Tribunal to make an order to adjust levies to exclude successful lot owner from obligation to contribute |
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ZWI v Public Guardian [2022] NSWCATAP 84 Guardianship Division Decision of: A Britton, Deputy President; J Moir, Senior Member; I Beale, General Member Catchwords: APPEALS — from decision of NCAT under s 25A of Guardianship Act 1987 (NSW) to refuse to review a guardianship order - whether to grant leave to appeal under Civil and Administrative Tribunal Act 2013 (NSW), s 80(2)(b) - whether to deal with appeal by way of new hearing under Civil and Administrative Tribunal Act 2013 (NSW), s 80(3) PROCEDURAL FAIRNESS — whether Tribunal failed to give the parties “a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings” as required by Civil and Administrative Tribunal Act 2013 (NSW), s 38(5)(c) PARTIES — parties to proceedings for review of a guardianship order under Guardianship Act 1987 (NSW), s 25 STATUTORY CONSTRUCTION — whether the term “guardianship order” in s 25A of Guardianship Act 1987 (NSW) means “initial order” WORD AND PHRASES — meaning of “fresh evidence” in Civil and Administrative Tribunal Act 2013 (NSW), s 80(3)(a) |
Commissioner of Police v EMB [2022] NSWCATAP 85 Administrative and Equal Opportunity Division Decision of: Cole DCJ, Deputy President; P Molony, Senior Member Catchwords: APPEAL - administrative review – firearms licence – whether error of law – whether leave should be given to reconsider the exercise of the discretion on the facts |
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Dibb v Transport for NSW (No 2) [2022] NSWCATAP 89 Administrative and Equal Opportunity Division Decision of: Dr R Dubler SC, Senior Member; G Furness SC, Senior Member Catchwords: APPEAL - moot appeal - whether futile – advisory opinions – s 8 Government Information (Public Access) Act 2009 – whether s.8 release reviewable – whether s 8 release unauthorised - whether s.111 Government Information (Public Access) Act 2009 decision appealable |
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FGK v Legal Aid NSW [2022] NSWCATAP 92 Administrative and Equal Opportunity Division Decision of: Dr R Dubler SC, Senior Member; D Robertson, Senior Member Catchwords: APPEAL – whether errors of law in application of Government Information (Public Access) Act 2009 (NSW) – whether redaction of withheld material was practicable |
O’Connor v McManus [2022] NSWCATAP 93 Consumer and Commercial Division – Tenancy Decision of: The Hon D A Cowdroy AO QC ADCJ, Principal Member; Mr P H Molony, Senior Member Catchwords: APPEAL – residential tenancies – claim by landlord for arrears of water charges – whether appellant landlord was denied natural justice – failure of Tribunal to explain to the appellant that he was entitled to apply for an extension of time in which to bring her claim |
Latimer v Latimer [2022] NSWCATAP 94 Consumer and Commercial Division – Tenancy Decision of: S Westgarth, Deputy President; L Wilson, Senior Member Catchwords: APPEAL- Declarations under s11 of the Residential Tenancies Act- whether mental incapacity affected ability to enter into a residential tenancy agreement - whether an agreement existed under s9 of the Residential Tenancies Act |
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ZXA v ZXB [2022] NSWCATAP 97 Guardianship Division Decision of: K Ransome, Senior Member; R Booby, Senior Member; S Johnston, General Member (Community) Catchwords: APPEAL – Guardianship – appeal from decision appointing NSW Trustee & Guardian as financial manager – whether applicant for order had standing – whether decision made without evidence – whether decision against the weight of evidence or failed to take into account relevant considerations – no error – appeal dismissed |
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Nasreldin v Huang [2022] NSWCATAP 117 Consumer and Commercial Division – Commercial Decision of: R C Titterton OAM, Senior Member; A Boxall, Senior Member Catchwords: APPEALS – leave to appeal – no question of principle – error of law – appeal dismissed, no error demonstrated – fresh evidence on appeal - principles |
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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. |
